United States District Court, N.D. Illinois, Eastern Division
September 27, 2004.
AMANDA BLUM, f/k/a HORKEY, Plaintiff,
PAUL D. LAWENT, d/b/a LAW OFFICES OF PAUL D. LAWENT, Defendant.
The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Amanda Blum failed to pay her bill for dental
services provided by Renwick Family Dental Care, L.L.C.
("Renwick"). After approximately one year, her debt was referred
to J.V.D.B. & Associates, a debt collection agency. Blum
successfully sued J.V.D.B. for violating the Fair Debt Collection
Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., by harassing
her at work in connection with their collection efforts, see
Horkey v. J.V.D.B. & Assocs., Inc., 333 F.3d 769 (7th Cir.
2003);*fn1 she did not, however, pay her bill. Defendant
Paul D. Lawent, an Illinois attorney who performed debt
collection services on behalf of J.V.D.B., filed a complaint in
Will County Small Claims Court ("Small Claims Complaint") to
recover Renwick's money. At this point, Blum finally paid the
money she owed, but not before filing another federal lawsuit. In
this case, Blum alleges that Lawent violated the FDCPA by making
confusing disclosures in a collection letter; by filing the Small
Claims Complaint on behalf of Dr. Marcos Y. Que, the dentist who
had performed the dental work, and not Renwick, the actual
creditor; and by signing the Small Claims Complaint without
indicating that he was the plaintiff's attorney.
The parties filed cross-motions for summary judgment on all of
Blum's claims. On September 8, 2003, the court granted the
motions in part and denied them in part. The court concluded that
Blum was entitled to summary judgment on her claim that Lawent's
debt collection letter violated § 1692g of the FDCPA because it contained
confusing language concerning Blum's right to challenge the debt.
Blum v. Lawent, No. 02 C 5596, 2003 WL 22078306, at *3-7 (N.D.
Ill. Sept. 8, 2003). The court found that genuine issues of fact
precluded summary judgment as to whether Lawent's Small Claims
Complaint violated § 1692e of the FDCPA by naming the wrong
plaintiff (the dentist himself, rather than his professional
corporation) and by failing to indicate that Lawent was the
plaintiff's attorney. Finally, finding no support for Blum's
theory that the Small Claims Complaint was unconscionable in
violation of § 1692f, the court dismissed that portion of the
suit. Id. at *7-10. Because Blum sought only statutory damages
on the § 1692g claim and the parties did not submit any arguments
or evidence on that issue, the court reserved judgment as to
Blum's damage award. Id. at *10-11.
The court held a bench trial on January 29, 2004. Blum
subsequently filed a motion for leave to cite additional
authority, arguing that the Seventh Circuit's recent decision in
Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir. 2004),
demonstrates that Lawent is strictly liable for violating § 1692e
even if Blum was not in fact deceived by the Small Claims
Complaint. Blum claims that the only defense to liability a
showing of bona fide error and care to avoid such error is not
available to Lawent because he neither pleaded it in answering
the federal Complaint nor proved it at trial. Lawent insists that
the naming of Dr. Que as the plaintiff and the failure to
indicate that he was signing as the plaintiff's "attorney" were
simply unintentional errors that "deceived no one." For the
reasons set forth here, judgment is entered on behalf of Blum in
the amount of $65.
The facts of this matter are more fully presented in this
court's September 8, 2003 Memorandum Opinion and Order ("Order").
See Blum, 2003 WL 22078306, at *1-3. This opinion assumes the
reader's familiarity with the earlier decision and will summarize
the relevant facts adduced at trial. Blum and her two minor children received dental services at
Renwick valued at $817 between September 18, 1999 and November
15, 1999. Dr. Que performed those services as manager and sole
owner of Renwick, a Limited Liability Company. (Stipulated Facts
¶¶ 1, 2.) Blum did not pay the bill, so at some point in November
or December of 2000, Renwick referred it to J.V.D.B. Lawent sent
an initial debt validation letter to Blum on behalf of J.V.D.B.
on December 21, 2000. (Id. ¶ 5.) Blum denies ever receiving the
letter, and when there was no response, J.V.D.B.'s staff made two
harassing phone calls to Blum at her place of employment. Blum,
2003 WL 22078306, at *1. As noted, Blum won a judgment against
J.V.D.B. in connection with those collection efforts, receiving
$1,000 in statutory damages and $450 in actual damages under the
FDCPA. Horkey, 333 F.3d at 775. While that lawsuit was pending,
Lawent mailed a second debt collection letter to Blum's attorney,
David J. Philipps, on May 15, 2002. (Letter from P. Lawent to D.
Philipps of 5/15/02, Tr. Ex. A.) As explained in the court's
earlier decision, this letter violated § 1692g of the FDCPA
because it was confusing as to Blum's right to challenge the
debt. Blum, 2003 WL 22078306, at *3-7.
Approximately two months later on July 19, 2002, Lawent filed
the Small Claims Complaint using forms provided by the Circuit
Court of Will County. In that Small Claims Complaint, Lawent
identified Dr. Que as the plaintiff but substituted his own law
office address for that of Dr. Que. In the area designated for
the "Signature of Plaintiff," Lawent signed his own name without
indicating that he was the plaintiff's attorney. (Small Claims
Complaint, Tr. Ex. B.) The Small Claims Complaint indicated that
Blum owed "$817.00 plus costs for dental services rendered to the
defendant in a fully professional and competent manner." (Id.)
Attached to the Small Claims Complaint was a November 30, 2000
Statement of Account from Renwick showing that Blum had an
outstanding balance of $817. (Statement of Account, Tr. Ex. B.)
On August 8, 2002, Blum sought dismissal of the Small Claims
Complaint on the ground that she did not owe any money to Dr. Que
or to Lawent. (Motion to Strike and Dismiss and Motion for Involuntary Dismissal, Tr. Exs. F, G.) The next day, the Will
County Circuit Court granted the motion and gave Dr. Que or
Lawent 14 days to file an amended complaint. (Will County Circuit
Court Order of 8/9/02, Tr. Ex. H.) No amended complaint was filed
prior to August 13, 2002, when Blum's husband paid her debt in
full by personally delivering a money order to Renwick.
(Stipulated Facts ¶ 9.) Before making payment, however, Blum
filed this lawsuit on August 7, 2002, seeking further damages
from Lawent under the FDCPA.
At trial, the parties addressed the following issues: (1)
whether Lawent is liable under § 692e for making false statements
in the Small Claims Complaint; (2) if so, what damages Blum
should receive; and (3) what damages Blum should receive for
Lawent's violation of § 1692g, stemming from his misleading
collection letter of May 15, 2002. See Blum, 2003 WL 22078306,
I. Liability Under § 1692e
Blum argued that the Small Claims Complaint was false and
misleading in violation of § 1692e of the FDCPA because it was
filed on behalf of a party to whom Blum did not owe any money,
and because Lawent signed his own name as the plaintiff without
indicating that he was the attorney. Section 1692e states 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. "A debt collector's
false statement is presumptively wrongful under the [FDCPA] even
if the speaker is ignorant of the truth." Randolph,
368 F.3d at 728. See also Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d 991,
995 (7th Cir. 2003) (the test for determining whether a debt
collector has violated this section is an objective one, "turning
not on the question of what the debt collector knew but on
whether the debt collector's communication would deceive or
mislead an unsophisticated, but reasonable, consumer").
It is undisputed that the Small Claims Complaint contained
false statements. Blum did not owe any money to Dr. Que as
alleged; rather, she owed money to Renwick. In addition, Lawent was not the plaintiff in that case but he signed the Small Claims
Complaint on the line for "Signature of Plaintiff" without
indicating that he was the plaintiff's attorney. Lawent insists
that these mistakes were "unintentional errors" and that he did
not intend to deceive anyone. (Lawent Resp., at 1.)*fn2 As
the Seventh Circuit recently explained, however, Lawent's intent
is irrelevant. Randolph, 368 F.3d at 730 ("§ 1692e(2)(A)
creates a strict-liability rule. Debt collectors may not make
false claims, period"). See also 15 U.S.C. § 1692e(2)(A) (a
debt collector violates this section if he makes a "false
representation of the character, amount, or legal status of any
Blum concedes that she was not in fact misled or deceived by
the Small Claims Complaint. She certainly knew that Dr. Que was a
dentist at Renwick; the Small Claims Complaint stated that Blum
owed "$817.00 plus costs for dental services rendered to the
defendant in a fully professional and competent manner"; and
Lawent attached a copy of the Renwick bill to the Small Claims
Complaint. In addition, Blum knew that Lawent was an attorney for
Dr. Que and/or Renwick: the Will County Summons identified him as
such. Further, Lawent's May 15, 2002 collection letter to Blum's
attorney stated that he was an attorney representing J.V.D.B. in
Blum's collection matter. The critical question, however, is not
whether Blum was actually misled, but whether an unsophisticated
consumer would have been misled. Turner, 330 F.3d at 995. "Debt
collectors may not make false claims, period," and Lawent made
objectively false statements in the Small Claims Complaint.
Randolph, 368 F.3d at 730. Lawent is thus strictly liable
unless he can establish an affirmative defense.
II. Affirmative Defense to Liability Under § 1692e
Though § 1692e creates a "strict-liability rule," the FDCPA
provides a defense "if the debt collector shows by a
preponderance of evidence that the violation was not intentional
and resulted from a bona fide error notwithstanding the
maintenance of procedures reasonably adapted to avoid any such error." Randolph, 368 F.3d at 730 (quoting
15 U.S.C. § 1692k(c)). In answering Blum's Complaint, Lawent set forth
several affirmative defenses but did not expressly mention §
1692k(c) or its elements. See, e.g., Turner, 330 F.3d at 997
(describing § 1692k(c) as an "affirmative defense"); Shula v.
Lawent, No. 01 C 4883, 2002 WL 31870157, at *11 (N.D. Ill. Dec.
23, 2002), aff'd, 359 F.3d 489 (7th Cir. 2004) ("§ 1692k(c) is
an affirmative defense, and therefore, must be pleaded in
Defendants' answer"). Even if Lawent had properly pleaded the
affirmative defense, moreover, it would still fail because he did
not set forth the required elements.
The mistakes in the Small Claims Complaint do appear to be
unintentional errors; Blum did not present any evidence
suggesting that Lawent deliberately sought to confuse her or to
recover money that she did not in fact owe. Nevertheless, this is
not the first time Lawent has violated the FDCPA. See Horkey,
333 F.3d 769; Shula, 2002 WL 31870157, aff'd, 359 F.3d 489.
See also Gonzalez v. Lawent, No. 03 C 2237, 2004 WL 2036409
(N.D. Ill. Sept. 10, 2004) (granting plaintiff leave to file
amended complaint charging Lawent with violations of the FDCPA).
Lawent testified that the only procedure he had in place to
prevent such errors was to personally review documents before
they were filed. He conceded that the Small Claims Complaint was
typed by a secretary employed by the collection agency
(presumably, J.V.D.B.) and not his own employee, and he admitted
that he did not show the complaint to his client, Dr. Que, before
filing it with the Will County Circuit Court. On these facts, the
court finds that Lawent did not have adequate procedures in place
to prevent the errors and does not have an affirmative defense to
Having determined that Lawent is liable under both §§ 1692e and
1692g, the court next considers whether Blum is entitled to any
damages. Section 1692k of the Act states:
any debt collector who fails to comply with any
provision of this subchapter with respect to any
person is liable to such person in an amount equal to
the sum of (1) any actual damage sustained by such
person as a result of such failure; (2)(A) in the
case of any action by an individual, such additional
damages as the court may allow, but not exceeding
$1,000; . . .
15 U.S.C. § 1692k. The FDCPA identifies the following factors as
relevant to a damages award under the Act: "the frequency and
persistence of noncompliance by the debt collector, the nature of
such noncompliance, and the extent to which such noncompliance
was intentional." 15 U.S.C. § 1692k(b). Blum has requested a
combined total of $500 in statutory damages for both the § 692e
and § 1692g violations. She also seeks to recover the $64 filing
fee she paid in responding to the Small Claims Complaint. Lawent
argues that Blum is entitled to only nominal damages.
It is undisputed that Lawent sent only one letter that violated
§ 1692g. (Letter from P. Lawent to D. Philipps of 5/15/02, Tr.
Ex. A.) Though that letter was technically confusing as to Blum's
right to challenge the debt, there is no evidence that Lawent
intended to deceive Blum or to violate the FDCPA. It is
undisputed that Blum was not in fact confused or deceived at all.
Blum knew that she owed the debt and has even asserted that she
would not have contested the Will County lawsuit had Lawent named
the proper plaintiff. (Stipulated Facts ¶ 11.) The court
questions this assertion; Lawent sent a letter to Blum's attorney
on August 2, 2002 stating his intent "to move instanter to amend
the caption of the case to Renwick Family Dental Care, LLC v.
Amanda Horkey, n/k/a Amanda Blum," yet less than a week later
Blum not only moved to dismiss the Will County complaint but also
filed this lawsuit. (Letter from P. Lawent to D. Philipps of
8/2/02, Tr. Ex. D; Motion to Strike and Dismiss and Motion for
Involuntary Dismissal, Tr. Exs. F, G.) In any event, Blum admits
that she was not in fact misled by the Small Claims Complaint
and, shortly after it was filed, she finally paid off her $817
debt nearly two years after she received the dental services
in one full payment. (Stipulated Facts ¶ 9.) On these facts, the
court finds that Blum is entitled only to actual damages and
nominal statutory damages.
For the reasons stated above, Plaintiff Amanda Blum is awarded
as actual damages the $64 filing fee for her appearance in the
Will County Circuit Court. She is also awarded $1 in statutory
damages for Defendant Paul Lawent's combined violations of §§
1692e and 1692g of the FDCPA.