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Beler v. Blatt

May 18, 2006

ELLA M. BELER, PLAINTIFF,
v.
BLATT, HASENMILLER, LEIBSKER, AND MOORE, LLC, DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on cross-motions for summary judgment. Plaintiff Ella Beler claims that Defendant Blatt, Hasenmiller, Liebsker, and Moore, LLC, (Blatt) violated the Fair Debt Collection Practices Act (FDCPA) in its efforts to collect her unpaid charge account bill at J. C. Penney Co. For the reasons set forth below, the Court denies Beler's summary judgment motion and allows Blatt's summary judgment motion.

STATEMENT OF FACTS

On March 3, 2004, Blatt, as attorneys for Monogram Credit Card Bank of Georgia (Monogram), filed a lawsuit against Beler in the Illinois Circuit Court for Sangamon County, Illinois. The state court complaint (Collection Complaint) alleged that: (1) Beler opened a charge account with Monogram at J. C. Penney Co.; (2) Beler charged purchases totaling $730.91 on the account; and (3) Beler defaulted on the account. Monogram asked for judgment in the amount of $730.91, plus costs and interest. Affidavit of Kenneth Wake (d/e 13), Deposition Exhibit D, Collection Complaint.

Attached to the Collection Complaint was an affidavit signed by Paul Weir. The Affidavit stated, in part:

1. I am a competent person over eighteen years of age. I am an employee of General Electric Capital Corporation ("GE Capital") and an authorized agent for GE Capital with respect to its accounts for MONOGRAM CREDIT CARD BANK OF GEORGIA revolving credit accounts.

2. The scope of my job responsibilities includes the performance of collection and recovery services. In the performance of my duties for GE Capital, I am familiar with the manner and method by which GE Capital creates and maintains its normal business books and records, including computer records of its revolving credit accounts held under the name of MONOGRAM CREDIT CARD BANK OF GEORGIA. . . . .

4. In the ordinary course of business GE Capital maintains or has access to copies of revolving credit agreements/credit card applications entered into between MONOGRAM CREDIT CARD BANK OF GEORGIA and its customers enabling such customers to open revolving credit accounts with MONOGRAM CREDIT CARD BANK OF GEORGIA. The agreement specifically provides the GE Capital is entitled to recover, to the extent permitted by applicable law, its reasonable attorney's fees and costs incurred in any action to enforce its rights under the agreement. . . . .

6. The just and true balance due and owing to GE Capital by the accountholder(s) on Account number CG8892481168470 as of the date hereof is $730.91 and all just and lawful offsets, payments and credits have been allowed; together with interest thereon at a rate of .00% per annum.

Id.

Monogram's collection action was called for a hearing in state court on March 26, 2004. Blatt's associate K. Damon Young appeared for Monogram. Beler appeared personally. Beler admitted that she owed the amount claimed. The Court entered judgment in favor of Monogram and against Beler in the sum of $730.91.

Beler informed Young at the March 26, 2004, court hearing that her only source of income was Social Security. Beler Deposition (d/e 14) at 13. Blatt previously had collected information on Beler that indicated that she was disabled. Wake Deposition at 73 and Deposition Exhibit B at 1. Blatt further received a credit bureau report in April 2004 that indicated that Beler was "LISTED AS SSI DISABILITY." Wake Deposition, Deposition Exhibit B at 4. Blatt did not use any supplementary proceedings, such as an Illinois Citation to Discover Assets, to question Beler under oath about her assets and sources of income. See 735 ILCS 5/2-1402.

Rather, on June 30, 2004, Blatt served a Citation to Discover Assets to Third Party (Citation) on U.S. Bank (Bank) in Springfield, Illinois. The Citation informed the Bank:

YOU ARE PROHIBITED from making or allowing any transfer or other disposition of, or interfering with, any property not exempt from execution or garnishment belonging to the judgment debtor or to which he may be entitled or which may be acquired by or become due to the judgment debtor and from paying over or otherwise disposing of any money not so exempt, which is due or becomes due to the judgment debtor, until further order of court or termination of ...


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