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KANG v. EISENSTEIN

April 21, 1997

HUANG KANG, on behalf of himself and others similarly situated, Plaintiff,
v.
DR. MATTHEW EISENSTEIN, and the NORTH SHORE MRI CENTRE, Defendants.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff Hyung Kang, an Illinois resident, has filed a two-count amended complaint on behalf of himself and others similarly situated against defendants Matthew Eisenstein, M.D. ("Dr. Eisenstein") and the North Shore MRI Centre ("Centre") alleging that: (1) Dr. Eisenstein violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et. seq. (Count I); and (2) the Centre violated the Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS §§ 505/1-505/12 ("the Illinois Act") (Count II).

 Previously, defendants filed a motion to dismiss plaintiff's amended complaint. On January 10, 1997, the court denied defendants' motion without prejudice because their arguments were, in part, based on documents outside the pleadings. Defendants, as ordered, have now filed a motion for summary judgment, pursuant to Fed.R.Civ.P. 56. In response, plaintiff has filed without leave of court a cross-motion for summary judgment. For the reasons set forth below, the court grants defendants' motion and denies plaintiff's motion.

 FACTS1

 On June 26, 1995, plaintiff was involved in an automobile accident.. Plaintiff's physician prescribed three separate magnetic resonance imagings ("MRIs") to rule out possible injuries. The MRIs were performed at the Centre on July 26, 27, and 28, 1995. Plaintiff's MRIs were interpreted by three doctors at the Centre: Drs. Capek, Novetsky, and Racenstein. Plaintiff incurred charges of $ 1,360.00 for each MRI, for a total amount of $ 4,080.00. Plaintiff signed an agreement acknowledging that any charges incurred for services he received at the Centre were his personal responsibility, and that he would pay the Centre for any such charges that insurance did not cover.

 Thereafter, plaintiff, the insurance company, and Kevin Rogers, plaintiff's attorney at the time, received a Notice of Physician's Lien signed by Dr. Eisenstein and dated August 11, 1995. The lien identified the three MRIs Kang received at the Centre and the amount charged for each MRI. Dr. Eisenstein signed the lien by writing "Matthew Eisenstein" above the "Physician's Signature" line, and the North Shore MRI Centre was listed above the line labeled "Physician." Plaintiff also received an invoice which showed that Kang owed the Centre $ 4,080.00 for medical services.

 On March 26, 1996, plaintiff sued the other driver involved in the automobile accident in state court to recover for injuries sustained in the accident. On or about April 22, 1996, plaintiff filed a "Motion to Invalidate and/or Adjudicate Physician's Lien" in state court. In that motion, plaintiff argued that the Centre's lien was defective because, among other reasons: (1) the lien was signed by Dr. Eisenstein, but the Centre was listed as the physician; (2) the Illinois Physician's Lien Act authorizes only licensed physicians practicing in Illinois to issue physician's liens; and (3) listing the Centre as the physician was an improper attempt to subrogate a debt. The motion also disclosed that plaintiff had been offered and had accepted $ 5,000 to settle the state court personal injury suit. Plaintiff agreed to withdraw his motion to adjudicate the lien in exchange for Dr. Eisenstein accepting partial payment from the settlement proceeds.

 Plaintiff's attorney forwarded a check to Dr. Eisenstein in care of the Centre for $ 1,666.66. Dr. Eisenstein endorsed the check to the Centre. Plaintiff then received an invoice that showed he owed the Centre additional money for medical services in the amount of $ 2413.34. To this date, plaintiff has not made any additional payment on his account. Plaintiff brings this action against defendants alleging that service of the lien, signed by Dr. Eisenstein, violated the FDCPA and the Illinois Consumer Fraud and Deceptive Practices Act. *fn2"

 DISCUSSION

 Summary Judgment Standard

 Under Fed.R.Civ.P. 56(c), a court should grant a summary judgment motion if "there is no genuine issue of material fact and ... the moving party is entitled to judgment as a matter of law." See also Kreutzer v. A.O. Smith Corp., 951 F.2d 739, 743 (7th Cir. 1991). The burden is on the moving party to identify portions of the pleadings, answers to interrogatories, and affidavits which demonstrate an absence of a 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 burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(c). When reviewing a summary judgment motion, the court must read the facts in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986).

 The FDCPA Claim - Count I

 To successfully bring a claim under the FDCPA, plaintiff must prove: (1) that Dr. Eisenstein is a "debt collector" under the FDCPA; (2) that the physician's lien was at attempt to collect a debt under the FDCPA; and (3) that service of the lien constitutes an abusive or unfair practice as described under the FDCPA. See 15 U.S.C. § 1692. Defendants contend that plaintiff has failed to plead any of these elements. The court concludes that summary judgment should be granted on Count I because plaintiff has failed to establish a cause of action under the FDCPA.

 The FDCPA imposes civil liability only upon "debt collectors." A "debt collector," as defined ...


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