The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge
MEMORANDUM OPINION AND ORDER
In Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir. 2004),
the Seventh Circuit vacated this Court's entry of summary
judgment for Unlimited Progress Corporation ("CDA" or
"defendant") on Count I of the Complaint, the entry of summary
judgment and an award of damages to the plaintiff on Count II,
and remanded the case to this Court for further proceedings as to
Count I alone. In light of those rulings, the plaintiff has
renewed her motion for summary judgment on Count I of the
complaint, which alleges a violation of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692e ("FDCPA"). Based on the rule of
law announced in Randolph and the factual record submitted on
summary judgment, the Court grants the plaintiff's motion for
summary judgment (doc. # 36).*fn1 I.
The legal standards governing a motion for summary judgment are
well-established. Summary judgment is proper if the record shows
that there is no genuine issue as to any material fact, and that
the moving parties are entitled to judgment as a matter of law.
Fed.R. Civ. P. 56(c).
With regard to factual issues, a genuine issue for trial exists
only when "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). If the evidence is merely
colorable, or is not significantly probative, summary judgment
may be granted. Id. at 249-50; see also Flip Side Productions,
Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1032 (7th
Cir.), cert. denied, 488 U.S. 909 (1988). In deciding a motion
for summary judgment, the Court must view all evidence in the
light most favorable to the nonmoving party, Valley Liquors,
Inc. v. Renfield Importers, Ltd., 822 F.2d 656, 659 (7th
Cir.), cert. denied, 484 U.S. 977 (1987), and must draw all
reasonable inferences in the non-movant's favor. Santiago v.
Lane, 894 F.2d 218, 221 (7th Cir. 1990).
When a material fact or a set of facts yields competing, but
reasonable, inferences, then there is a genuine issue that
precludes summary judgment. The non-moving party's burden is to
identify facts that are both material and genuinely disputed.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) To bele 56.1
Statement of Undisputed Facts ¶¶ 3 ("Pl.'s 56.1 St. ¶ ___"). The
defendant in this case is Unlimited Progress Corporation, doing
business as Creditor Discount & Audit Company ("CDA"). CDA is a
debt collector, as defined by the FDCPA, 15 U.S.C. § 1692a,
because it regularly uses the mails to collect, or attempt to
collect, consumer debts (Id. ¶ 4). Plaintiff filed a voluntary
Chapter 13 petition in bankruptcy on December 9, 1997 (Id. ¶
5). A debt in the amount of $1,125.00, allegedly owed to Joseph
V. Kannankeril, M.D. ("Dr. Kannankeril"), was listed on "Schedule
F-Creditors Holding Unsecured Nonpriority Claims" of Alexander's
bankruptcy petition" (Id. ¶ 6). On February 11, 1998, Dr.
Kannankeril filed a claim in plaintiff's chapter 13 bankruptcy
(Id. ¶ 8).
On March 22, 2001 and then again on May 7, 2001, defendant sent
plaintiff letters seeking to collect on the debt allegedly owed
to Dr. Kannankeril (Id. ¶ 9). At the time that defendant sent
its two form debt collection letters to plaintiff to collect on
the debt allegedly owed to Dr. Kannankeril, plaintiff's debt was
subject to her pending Chapter 13 bankruptcy (Id. ¶ 10).
Defendant did not know about the bankruptcy until May 22, 2001, when
plaintiff's attorney notified CDC of this fact (Pl.'s Ex. 6,
Armstrong Aff., ¶ 24-26). Defendant's procedure is to cease
collecting on a file once it learns the alleged debtor is in
bankruptcy (Pl.'s 56.1 St., Ex. 6, ¶ 23). Pursuant to that
procedure, defendant ceased all collection activity on
plaintiff's alleged debt once it learned of plaintiff's
bankruptcy (Id., ¶ 26).
In Count I plaintiff alleges that defendant violated the FDCPA
by sending collection letters to plaintiff claiming that she owed
a debt to Dr. Kannankeril, even though this debt was subject to a
pending Chapter 13 bankruptcy (Compl. ¶¶ 7-9). There are two
issues raised by the parties on summary judgment. First,
defendant claims that summary judgment should be denied because
there is a genuine dispute of material fact on the issue of
whether the statements made in the two collection letters were
false, in violation of 15 U.S.C. § 1692e(2)(A). Second,
defendant claims that even assuming there were false statements
in the collection letters, there is a triable issue as to whether
liability is foreclosed by the "bona fide error" affirmative
defense that defendant has raised.
For the reasons explained below, the defendant has not offered
facts sufficient to create a triable issue on either issue.
The Court will address the false statement issue first, since
without a false statement there is no need to address the bona
fide error issue. The defendant argues that there remains a fact
dispute over whether the statements made in the collection
letters to plaintiff were "false," in violation of the FDCPA. In
our view, the Seventh Circuit has already resolved this issue in
the earlier appeal in this case. In Randolph, the Seventh Circuit held that Section
1692e(2)(A) of the FDCPA "creates a strict liability rule. Debt
collectors may not make false claims, period." 368 F.3d at 730. A
"false claim," stated that appeals court, does not depend upon
knowledge of falsity. Rather,
[a] demand for immediate payment while a debtor is in
bankruptcy (or after the debt's discharge) is "false"
in the sense that it asserts that money is due,
although, because of the automatic stay
(11 U.S.C. § 362) of the discharge injunction (11 U.S.C. § 524),
it is not. A debt collector's false statement is
presumptively wrongful under the Fair Debt Collection
Practices Act, see 15 U.S.C. § 1692e(2)(A), even if
the speaker is ignorant of the truth; but a debt
collector that exercises care to avoid making false
statements has a defense under § 1692k(c).
Randolph, 368 F.3d at 728 (emphasis added).
It is undisputed that the two collection letters in this case
demanded immediate payment from plaintiff while the plaintiff was
in bankruptcy. Under Randolph, the claim for immediate payment
was false, in violation of 15 U.S.C. § 1692e(2)(A), because the
debtor had no obligation to make such a payment in light of the
bankruptcy stay. As the Seventh Circuit made clear in Randolph,
that is true even though it is undisputed that defendant was
unaware of the bankruptcy. Consequently, the Court finds, as a
matter of law, that the debt collection letters in this case made
false statements in violation of Section 1692e(2)(A).
We are unpersuaded by the defendant's argument that the holding
in the case of Turner v. J.V.D.B., & Assocs., Inc.,
330 F.3d 991 (7th Cir. 2003), on remand to the district court,
330 F.Supp.2d 998, supports the view that the falsity of the
statements in the defendant's collection letters is a question of
fact for the jury. On remand in Turner, the court found that
Randolph did not control the mandate issued to that court in
that case, namely, to conduct a trial to determine whether, "as a
matter of fact a misleading implication (that Turner had to pay
the $97.80 debt) arises from an objectively reasonable reading of
J.V.D.B.'s collection letter of March 29, 2001." Turner, 330 F.Supp.2d at 1002. Turner turns (no pun intended) on the facts
of that case. Here, however, the falsity of the statements in the
defendant's letters was directly analyzed by the Seventh Circuit
in Randolph, and we believe that analysis leaves open ...