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VICKEY v. ASSET ACCEPTANCE
July 22, 2004.
TREVOR VICKEY, Plaintiff,
ASSET ACCEPTANCE, LLC; and MC MAHAN & SIGUNICK, LTD., Defendants.
The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
On July 1, 2004, we granted defendants' motion for summary
judgment as to counts I, II and III of plaintiff's complaint. In
doing so we neglected to discuss count IV, an individual claim
against defendant Asset Acceptance alleging violations of the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692e (FDCPA).
For the following reasons, defendant's motion for summary
judgment as to count IV is granted.
The FDCPA provides that "a debt collector may not use any
false, deceptive, or misleading representation or means in
connection with the collection of any debt." 15 U.S.C. § 1692e.
Plaintiff claims that Asset Acceptance misrepresented plaintiff's
date of delinquency by reporting the date that it opened the
account rather than the date that the account was charged off by
Discover. Plaintiff claims that such a practice could lead to the
delinquency remaining on his credit record for more than seven
years. He also argues that Asset Acceptance reported conflicting
data to Experion and to other credit agencies.
The plaintiff produces no evidence supporting this claim other
than the affidavit of Richard Le Febvre. Le Febvre admits,
however, that he has not seen all of the relevant documentation and does not understand the coding used by the
credit services. The documents that he relied on in reaching his
conclusions have not been offered into evidence or disclosed to
the court. Asset Acceptance claims that it asked the major credit
reporters to delete plaintiff's account; Le Febvre acknowledges
that he cannot tell whether or not this was done. While he states
that a number of dates appear in plaintiff's credit reports,
there is nothing to indicate in what documents these dates are
located or what they are intended to refer to. Plaintiff also
produces nothing to contradict Asset Acceptance's argument that
it was asked by Experion to report the date that the account was
assigned, rather than the date of original delinquency. In the
absence of any documentation showing that defendants actually
reported incorrect dates or information to the credit agencies,
plaintiff fails to create an issue of material fact as to count
Finally, there is no indication that the dates used by Asset
Acceptance had any effect on the attempt to collect plaintiff's
debt. While statutory damages may be awarded even in the absence
of actual harm to the plaintiff (see Bartlett v. Heibl,
128 F.3d 497, 499 (7th Cir. 1997)), there must be some indication
that the defendant actually violated the statute by using a
misrepresentation in connection with the collection of a debt.
There is no indication that any "re-aging" affected the
plaintiff's rights in any way.
For the foregoing reasons, defendant Asset Acceptance's motion
for summary judgment as to count IV is granted.
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