the financing instrument was assigned to, Mercury Finance Company. (PSOMF P 18).
On or about December 11, 1992, defendants filed suit on behalf of Mercury Finance Company against the Holloways, listing their address in Joliet, in the Circuit Court of Cook County, First Municipal District, located in the Daley Center. (PSOMF P 19; DSOMF P 14). On or about May 11, 1993, the Holloways voluntarily appeared in the Circuit Court of Cook County and consented to the entry of judgment against them in the amount of $ 2,161.72 plus court costs and agreed to pay $ 100.00 monthly to Mercury Financing beginning on May 30, 1993. (DSOMF P 15). On or about June 18, 1993, defendants filed an Affidavit for Wage Deduction Order in the First Municipal District listing Holloway's last known address in Joliet. (PSOMF P 20). On or about November 17, 1993, defendants filed another Affidavit for a Wage Deduction Order in the First Municipal District listing Holloway's last known address in Joliet, which is in Will County, Illinois. (PSOMF PP 21-22). The Will County Courthouse is more than forty miles from the Daley Center. (PSOMF P 23). Plaintiffs maintain that Pekay should have filed both the collections suit and the garnishment requests in Will County, not Cook County. Plaintiffs assert that Pekay's allegedly improper filing against Holloway subjects him to liability under the FDCPA.
Legal Standard for Summary Judgment
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928 (7th Cir. 1995); Wainwright Bank & Trust Co. v. Railroadmens Fed. Sav. & Loan Ass'n of Indianapolis, 806 F.2d 146, 149 (7th Cir. 1986). The movant has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The primary inquiry is whether the evidence presents a sufficient disagreement to require a trial, or whether it is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the moving party meets this burden, the non-moving party must then respond by setting forth specific facts which demonstrate the existence of a genuine issue for trial. Fed. R. Civ. P. 56(e); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 78 L. Ed. 2d 336, 104 S. Ct. 392 (1983); see Curtis v. Bembenek, 48 F.3d 281 (7th Cir. 1995). All reasonable inferences from the record are to be drawn in favor of the non-moving party. Johnson v. Runyon et al., 47 F.3d 911 (7th Cir. 1995); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994).
Thus, as each party has moved for summary judgment, in order for either to prevail, they must show that the evidence is so one-sided in their favor that there is no genuine issue requiring a trial, and they are entitled to summary judgment as a matter of law. In other words, for the court to grant summary judgment to either the plaintiffs or Pekay, it must appear beyond doubt that the losing party can prove no set of facts in support of their claim which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 42, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Benson v. Cady, 761 F.2d 335, 338 (7th Cir. 1985). If the movant demonstrates that there is no genuine issue of material fact, the opposing party must prove evidence of specific factual disputes. Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir. 1988).
These summary judgment motions focus on the interpretation of the venue provision of the Fair Debt Collection Practices Act ("FDCPA"), codified at 15 U.S.C. § 1692i, and the FDCPA statute of limitations contained in 15 U.S.C. § 1692k(d). Plaintiffs have moved for partial summary judgment on the issue of defendants' liability under their complaint. Defendants have moved for summary judgment based on three separate theories: (1) because Blakemore resided in Cook County, the collections action initiated by defendants was in the proper venue; (2) Holloway's claim is barred by the FDCPA's statute of limitations; (3) even if Holloway's claim is not barred by the statute of limitations, Holloway has waived any form of relief under the FDCPA because he voluntarily appeared in Cook County and consented to judgment being entered against him there. Defendants also argue that applying the FDCPA to these circumstances would violate the United States Constitution.
The FDCPA is a broad statute that was designed to "protect consumers from a host of unfair, harassing, and deceptive debt collection practices without imposing unnecessary restrictions on ethical debt collectors." Oglesby v. Rotche, 1993 U.S. Dist. LEXIS 15687, 1993 WL 460841 (N.D.Ill 1993) (Plunkett, J.) (quoting Johnson v. NCB Coll. Srvcs., 799 F. Supp. 1298, 1303 (D.Conn. 1992)(quoting S.Rep. No. 382, 95th Cong. 1st Sess. 1, 2, reprinted in 1977 U.S.C.C.A.N. 1695, 1696 (the "Senate Report")). The Committee on Banking, Housing, and Urban Affairs, which reported on the Act and recommended it to the Senate, found that debt collection abuse by third party debt collectors is "a widespread and serious national problem." Senate Report at p.2.
The FDCPA only applies to "debt collectors," 15 U.S.C. § 1692g; Oglesby, 1993 U.S. Dist. LEXIS 15687, 1993 WL 460841 at *1; see Jenkins v. Heintz, 25 F.3d 536, 538-39 (7th Cir. 1994), aff'd, 131 L. Ed. 2d 395, 115 S. Ct. 1489 (1995), because the Banking Committee concluded that independent debt collectors are "the prime source of egregious collection practices." Senate Report at 2. "Debt collectors" include attorneys when an attorney's principle business is debt collection or who regularly collects the debts of another. Oglesby, 1993 U.S. Dist. LEXIS 15687, 1993 WL 460841 at *1, Jenkins v. Heintz, 25 F.3d at 539. Law firms regularly engaged in debt collection are similarly constrained by the FDCPA. See Federal Trade Commission, Statements of General Policy or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 F.R. 50097, 50100, 50102 (1988). These defendants are an individual attorney and his firm (collectively "Pekay"). Plaintiffs have alleged that Pekay regularly engages in collecting consumer debts.
(Complaint P 7, PSOMF P 5). Thus, for purposes of deciding the summary judgment motions, the court concludes that the FDCPA applies to Pekay unless Pekay has put that issue into play through affidavits or other evidence (which he has not done).
The FDCPA's venue provision, contained in 15 U.S.C. § 1692i, provides, in pertinent part:
(a) Any debt collector who brings any legal action on a debt against any consumer shall--