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BLUM v. FISHER & FISHER

April 3, 1997

FRED A. BLUM, individually and on behalf of all others similarly situated, Plaintiff,
v.
FISHER AND FISHER, Attorneys at Law P.C., an Illinois professional corporation, Defendant.



The opinion of the court was delivered by: MORAN

 Fred A. Blum (Blum) brought this putative class action against Fisher and Fisher, Attorneys at Law (Fisher), charging that a debt collection letter regularly sent by defendant violates the Fair Debt Collection Practices Act (FDCPA). 15 U.S.C. §§ 1692 et seq. Fisher has moved for summary judgment and Blum has filed a cross-motion for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons stated below, defendant's motion and plaintiff's cross-motion are denied.

 BACKGROUND

 On or about July 24, 1990, plaintiff signed a Mortgage and Note pursuant to which he agreed to make monthly mortgage payments. While there is some dispute regarding the original mortgagor, the mortgage was eventually acquired by Mellon Mortgage Company (Mellon). On approximately February 21, 1996, plaintiff's mortgage fell into default and Mellon commenced internal foreclosure proceedings by referring the defaulted mortgage to Fisher for collection. Plaintiff was notified of this action in a letter from Mellon dated February 21, 1996. On February 27, 1996, plaintiff's counsel faxed Fisher a letter telling the firm that he represented Blum with respect to his mortgage and that he would accept service of any foreclosure complaint on Blum's behalf. Thereafter, Elizabeth Kaplan, an attorney at Fisher, had a telephone conversation with plaintiff's attorney during which she provided plaintiff's attorney with the amount of the outstanding mortgage debt that was due and owing in order to reinstate the loan. Fisher offered to refrain from further action until March 10, 1996. Fisher claims that Blum's attorney indicated he would contact Blum and respond to Fisher regarding the reinstatement prior to the March 10 date. Plaintiff disputes that his attorney ever agreed to respond to Fisher by any particular date.

 Between February 27, 1996 and March 29, 1996, there was no further communication between Blum's attorney and Fisher. On March 29, 1996, Fisher filed a Complaint to Foreclose the Mortgage against Blum in the Northern District of Illinois. On the same date the complaint was filed, Fisher mailed the following letter (dated March 26, 1996), to plaintiff:

 
Dear Homeowner:
 
A mortgage foreclosure has been filed by this office because of your failure to make your mortgage payments. The amount of your outstanding debt is $ 59,044.85 (principal balance) plus interest, advances and attorneys' fees and costs.
 
This foreclosure could result in the mortgage lender taking title to your property in approximately 7 months. During that time you may be allowed to stay in the house absolutely rent free. In addition, you have the right to save your house from foreclosure by either catching up your loan or by paying off the total mortgage debt through sale, refinancing or otherwise.
 
At the end of the foreclosure process, the mortgage lender will expect you to move out immediately or be evicted.
 
This letter is an attempt to collect a debt; any information obtained will be used for that purpose. Pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (1977), we will assume this debt to be valid unless you dispute the validity of all or any part of it in writing within 30 days of receipt of this letter. If you notify us in writing that you dispute all or a portion of the debt, we will obtain and send to you verification of the debt. Likewise, upon written request within 30 days after receipt of this notice we will provide you with the name and address of the original creditor, if different from the creditor named above.

 (Compl. Ex. C).

 On April 15, 1996, plaintiff filed a class action complaint against defendant alleging violations of the Fair Debt Collection Practices Act (FDCPA). 15 U.S.C. 1692 et seq. On behalf of the putative class, plaintiff claims that the March 26, 1996 letter from Fisher is false, deceptive, and misleading in violation of 15 U.S.C. § 1692e and unfair and unconscionable in violation of 15 U.S.C. § 1692f for the following reasons: (1) it misrepresents the homeowner's options in response to the foreclosure by implying that the homeowner can either pay the balance on his mortgage or do nothing and live "rent free" for 7 months pending foreclosure; (2) it falsely implies that the homeowner must pay attorneys' fees related to the foreclosure when it has not yet been shown that the lender is entitled to foreclose and that the requested fees are reasonable; and (3) it fails to advise the homeowner to seek independent counsel. Plaintiff also makes the individual claim that defendant violated 15 U.S.C. § 1692c(a)(2) by sending its March 26, 1996 letter directly to him knowing that he was represented by an attorney.

 DISCUSSION

 I. Standard for Resolving Cross-Motions for Summary Judgment

 The parties seek to dispose of this case through the filing of cross-motions for summary judgment. Summary judgment may only be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The movant must point to those portions of the record which demonstrate the absence of any genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). On cross-motions for summary judgment, "we therefore apply the traditional standard that summary judgment will not lie unless, construing all inferences in favor of the party against whom the motion is made, no genuine issue of material fact exists." I.A.E., Inc. v. Shaver, 74 F.3d 768, 774 (7th Cir. 1996) ...


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