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GONZALEZ v. LAWENT

DANIEL GONZALEZ, Plaintiff,
v.
PAUL D. LAWENT, Defendant.



The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the court are two motions filed by defendant Paul D. Lawent ("Lawent"): a motion for summary judgment and a motion for a finding that this action was brought in bad faith [dkt 27]; and a motion by plaintiff Daniel Gonzalez ("Gonzalez") to amend the complaint. [Dkt 39.] For the reasons set out herein, Lawent's motion for summary judgment is granted as to the original complaint; however, Gonzalez's motion for leave to file an amended complaint is also granted as set out herein. Lawent's motion for a finding that this action was brought in bad faith is denied.

Background

  Factual background

  In 1999, Gonzalez purchased a Chevrolet Lumina and a Buick LeSabre from Brim Motor Mart, Inc. ("Brim"). (Pl.'s LR Resp. ¶¶ 3, 4.)*fn1 About a year after purchasing the Buick, Gonzalez, who had fallen behind in his payments on the Buick, met with Martin Cohen ("Cohen"), a principal of Brim, to request a payoff figure that would satisfy the amount owed on the Buick. (Def.'s Resp. Pl.'s Add'l LR Stmt. ¶¶ 19, 20.)*fn2 Gonzalez contends that Cohen gave him both a payoff letter and the title for the Buick with the assurance that the amount stated in the payoff letter would completely satisfy the outstanding debt on that car, including interest. (Id. ¶¶ 21, 22.) Cohen admits that he told Gonzalez that he would give him the title to the Buick, but maintains that Gonzalez orally agreed to pay a remaining balance that was allegedly still owed. (Def.'s Mot. Summ. J., Ex. 1, Aff. Martin Cohen ¶ 7.)

  On June 25, 2000, Gonzalez presented the payoff letter to Jack Phelan Chevrolet ("Phelan") when Gonzalez traded in the Buick. (Pl.'s Cross-Mot. Summ. J., App. D, Decl. Daniel Gonzalez ¶ 6.) Phelan sent a check in the amount of $2,637.60 to Cohen. (Def.'s Resp. Pl.'s Add'l LR Stmt. ¶ 25; Pl.'s Cross-Mot. Summ. J., App. C.) The check stub contained the notation, "PAY OFF ACC OF DANIEL GONZALEZ ON 92 BUICK LESABRE." (Id.) Cohen testified that he applied the amount of the check to the outstanding balance. (Pl.'s Cross-Mot. Summ. J., App. G, Cohen Dep. at 23-24.)

  In May 2002, Cohen forwarded an auto credit statement to J.V.D.B. & Associates, Inc. ("JVDB"), a licensed collection agency. (Pl.'s LR Resp. ¶ 8.) Cohen attached the installment contract for the Buick (id.) but not for the Chevrolet because, Cohen maintains, he misplaced the file for the Chevrolet. (Cohen Dep. at 15, 20.) Cohen authorized JVDB to retain Lawent, an attorney, to pursue the matter in court. (Pl.'s LR. Resp. ¶¶ 10-11.)

  In September 2002, Lawent filed a lawsuit on behalf of Brim against Gonzalez in the Circuit Court of Cook County. (Id. ¶ 13; Compl. ¶ 7 [dkt 1]; Pl.'s Cross-Mot. Summ. J., App. A, Verified Compl.) The lawsuit claimed $2,726.20 owing plus $350 in attorney's fees. (Verified Compl.) Lawent attached the installment contract for the Buick to the complaint and verified the complaint as follows: "I, Paul D. Lawent, on oath state that I am the ATTORNEY & AGENT for the plaintiff in the above entitled action. The allegations in this complaint are true, based upon information and belief." (Def.'s Resp. Pl.'s Add'l LR Stmt. ¶ 37; Verified Compl. at 1.) Subsequently, Gonzalez and Lawent both appeared for trial on the complaint in the Circuit Court. (Def.'s Resp. Pl.'s Add'l LR Stmt. ¶ 41.) However, because Cohen did not appear, the court dismissed the complaint for want of prosecution. (Pl.'s LR Resp. ¶ 16.) Gonzalez states, and Lawent denies, that Gonzalez showed Lawent a copy of the check from Phelan and the title to the Buick. (Def.'s Resp. Pl.'s Add'l LR Stmt. ¶ 41.) On February 3, 2003, Lawent filed a second lawsuit on behalf of Brim against Gonzalez, which contained the same allegations as the first lawsuit. (Id. ¶ 42.) Again, Lawent verified the complaint based upon information and belief. (Id. ¶ 43; Pl.'s Cross-Mot. Summ. J., App. B, [Second] Verified Compl. at 1.) Shortly after filing the second complaint, Lawent received a facsimile from Gonzalez's attorney, which included a copy of the check for the Buick sent by Phelan to Cohen. (Pl.'s Cross-Mot. Summ. J., App. I, Facsimile at 3.) Upon receiving the facsimile, Lawent confirmed the information with JVDB and, on its instruction, moved to dismiss the case against Gonzalez with prejudice. (Def.'s Resp. Pl.'s Add'l LR Stmt. ¶ 41.) The case was dismissed with prejudice on March 18, 2003. (Id.; Def.'s LR Stmt. Ex. 8, Lawent Aff. ¶ 5.)

  Procedural history of this lawsuit

  On April 1, 2003, Gonzalez filed this action against Lawent, alleging essentially the following. In June 1999, Gonzalez bought a car from Brim "on time." In June 2000, Gonzalez traded in the car to Phelan, and Phelan paid off the remainder of the amount owed on the car. In September 2002, Lawent filed a collection lawsuit against Gonzalez on behalf of Brim, with a complaint that was verified by Lawent without knowledge that the allegations were true. On the date set by the Circuit Court, Gonzalez showed Lawent a copy of the check from Phelan, and the initial lawsuit was dismissed in January 2003. In February 2003, Lawent filed a second complaint, which he also verified, although he had "good reason to believe that [the allegations] were false." (Compl. ¶¶ 5-14.) The complaint alleged that Lawent violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). (Id. ¶ 17.) Specifically, the complaint stated: The verification of a complaint by counsel is a deceptive and unfair practice, in violation of 15 U.S.C. § 1692e, in that it amounts to a false representation of counsel's knowledge. Young v. Meyer & Njus, 96 C 4809, 1997 WL 452685 (N.D. Ill., Aug. 6, 1997). . . . It is a violation of the FDCPA for an attorney to verify a complaint. Young v. Meyer & Njus, 96 C 4809, 1997 WL 452685 (N.D. Ill., Aug. 6, 1997).

 (Compl. ¶¶ 15, 17.)

  Discovery in this case closed on November 13, 2003. [Dkt 25.] On January 5, 2004, Lawent filed the present motion for summary judgment, combined with a motion for a finding pursuant to 15 U.S.C. § 1692k(a)(3) that Gonzalez's action was brought in bad faith. [Dkt 27.] Gonzalez filed his Local Rule 56.1 response, and included in his response additional material facts. Gonzalez also filed a cross-motion for summary judgment, and Lawent responded to Gonzalez's cross-motion.

  On June 4, 2004, Gonzalez's counsel appeared on a motion for leave to cite additional authority. [Dkt 38.] By then it was apparent that Gonzalez's cross-motion for summary judgment was based on alleged violations of the FDCPA that were substantially different from the single claim of the original complaint that an attorney's verification of a complaint is per se a violation of the FDCPA. Gonzalez's counsel was advised that the court would not grant summary judgment for the plaintiff on claims not fairly raised in the complaint, but that Gonzalez would be given an opportunity to move for leave to file an amended complaint. Gonzalez eventually withdrew his ...


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