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LOCKETT v. FREEDMAN

April 21, 2004.

GEORGE LOCKETT, Plaintiff,
v.
LOUIS S. FREEDMAN, THOMAS J. ANSELMO, STEVEN C. LINDBERG and ROBERT H. RAPPE, JR., individually and doing business as FREEDMAN, ANSELMO, LINDBERG & RAPPE, a partnership, Defendants



The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge

MEMORANDUM OPINION AND ORDER

Defendants, Louis Freedman, Thomas J. Anselmo, Steven C. Lindberg and Robert H. Rappe, Jr., individually and doing business as Freedman, Anselmo, Lindberg & Rappe (collectively "defendants"), have moved to dismiss this putative class action filed by plaintiff, George Lockett ("Lockett"). Lockett's Amended Complaint alleges violations of the Fair Debt Collections Practices Act, ("FDCPA"), 15 U.S.C. § 1692 et seq. This court's jurisdiction is invoked pursuant to 15 U.S.C. § 1692k. For the reasons set forth below, the motion to dismiss is denied.

MOTION TO DISMISS STANDARDS

  A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no facts in support of its claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kennedy v. Nat'l Juvenile Det. Assoc., 187 F.3d 690, 695 (7th Cir. 1999). In ruling on the motion, the court accepts as true all well-pleaded facts alleged in the complaint, and it draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002); Jackson v. E. J. Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999).

  ALLEGATIONS OF THE COMPLAINT

  On June 7, 2001, Lockett entered into a motor vehicle retail installment contract for the purchase of a Ford Explorer. (Am. Compl. Ex. B.) Lockett made only three payments on his account between August 2001 and May 2002, thereby causing his account to be placed in repossession status. (Am. Compl. Ex. C.)*fn1 The Explorer was subsequently repossessed and sold in June 2002. (Id.) Proceeds of the sale were credited to Lockett's account balance. (Id.)

  On July 29, 2002, Freedman, acting on behalf of Ford Motor Company, filed a collection action against Lockett in the Circuit Court of Cook County, Illinois, seeking to collect the balance or "deficiency" on the automobile after repossession and sale. (Am Compl. ¶ 6.) Lockett's Amended Complaint alleges that Freedman, although lacking knowledge of the underlying facts, verified the state complaint. (Am. Compl. ¶ 7.) Specifically, Freedman verified that
Under penalties as provided by law pursuant to Sec. 1-109 of the Code of Civil Procedure. The undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.
(Am. Compl. Ex. A.) Nothing in the complaint was alleged by Freedman on information and belief. (Am. Compl. ¶ 11.)

  Among other things, the state complaint sought attorneys' fees for the deficiency action. (Am. Compl. ¶ 9.) Lockett alleges that the Ford Motor contract which the state complaint sought to enforce did not authorize attorneys* fees for a deficiency action. (Am. Compl. ¶ 9.) Lockett also alleges that the gross balance claimed in the state complaint included attorneys' fees and litigation expenses that had been incurred by the law firm of McGuire Woods, LLC, in prosecuting a replevin action that was previously voluntarily dismissed. (Am. Compl. ¶ 10.) Lockett alleges that no attorneys' fees have been awarded or approved by any court. (Id.)

  DISCUSSION

  In Count I, Lockett alleges that the verification of the state complaint by Freedman is a deceptive and unfair practice in violation of 15 U.S.C. § 1692e because, contrary to the verification, counsel did not have knowledge of the underlying facts. In Count II, Lockett alleges that defendants added unawarded attorneys' fees and court costs to a debt in violation of §§ 1692e and 1692f(1). Finally, in Count III, he alleges that defendants attempted to collect attorneys' fees that were not authorized, also in violation of §§ 1692e and 1692f(1).

 A. Verification (Count I)

  The FDCPA forbids a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Lockett relies on Young v. Meyer & Njus, P.A., No. 96 C 4809, 1997 WL 452685 (N.D. Ill. Aug. 6, 1997), in support of his claim that verification of the state complaint in this case violated the FDCPA.

  In Young, the plaintiff alleged that an attorney who verified a debt in a collection action had violated the FDCPA because the attorney lacked personal knowledge about the amount of the debt. Id. at * 1. In refusing to dismiss this claim, the court noted that under Illinois law an attorney "may verify a complaint if the attorney possesses personal knowledge of the relevant facts." Id. at *1 (citing Schwartz v. Great Cent. Ins. Co., 188 Ill. App.3d 264, 268-69, 544 N.E.2d 131, 133 (1989)). However, the attorney's alleged "personal knowledge" of the debt in Young consisted of only a review of a computer print-out allegedly showing the debt Id. The court noted that this print-out could not prove the debt at trial and, therefore, could not provide the basis for the attorney's verification based on personal knowledge. Id. Significantly, the verification in Young was not based on "information and belief." Cf O'Chaney v. Shapiro & Kreisman, LLC, No. 02 C 3866, 2004 WL 635060, at *3 (N.D. Ill. March 29, 2004) ("A plaintiffs claim that an attorney verification violates Section 1692e because the complaint was not based on `personal knowledge' fails as a matter of law if-as here — the attorney states that the complaint is based on `information and belief") (citing Bradley v. Fairbanks Capital Corp., No. 02 C 7786, 2003 WL 21011801, at *2-3 (N.D. Ill. May 5, 2003)).

  As is apparent from a perusal of the state complaint in this case, nothing was based on "information and belief." Moreover, Lockett specifically alleges that Freedman verified the state complaint even though he did not have personal knowledge of the facts. (Am. Compl. ¶ 7.) Because the allegations of the Amended Complaint are to be taken as true at this stage of the case, it would appear as if Lockett has stated a claim. Defendants, nonetheless, argue that Exhibits B and C of the Amended Complaint contradict Lockett's assertion that defendants' verification lacked personal knowledge. Eg., Northern Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 454-55 (7th ...


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