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Moore v. Blatt

June 29, 2006

RICK MOORE, PLAINTIFF,
v.
BLATT, HASENMILLER, LEIBSKER, AND MOORE, LLC, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge

OPINION

This case is before the Court on the Defendant's motion for summary judgment [d/e 8], the Plaintiff's motion for summary judgment [d/e 20], and the Defendant's motion for summary judgment due to the Plaintiff's failure to respond [d/e 17].

I. FACTUAL BACKGROUND

Plaintiff Rick Moore filed this lawsuit alleging that Defendant Blatt, Hasenmiller, Leibsker and Moore, LLC ("Blatt") violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Specifically, paragraph 17 of the Plaintiff's complaint alleges the following:

Blatt has violated 15 U.S.C. 1692g of the FDCPA by failing within five days after its initial communication with Plaintiff to give him notice concerning the right to obtain validation of the debt, for continuing its debt collection efforts in the absence of ever having provided the notice, and by failing to cease debt collection activities for 30 days while validating the debt upon receiving Plaintiff's request for validation.

Plaintiff Rick Moore is a resident of Springfield, Illinois, and a "consumer" within the meaning of 15 U.S.C. § 1692a(3). Blatt is a law firm, with its principal office located in Chicago, Illinois, which specializes in consumer debt collection and is a "debt collector" within the meaning of 15 U.S.C. § 1692a(6). The Plaintiff incurred charges on his Household Bank credit card and then defaulted. That account was charged off and later sold to Midland Credit Management, Inc. In December 2003, Midland retained Blatt to pursue collection.

Blatt alleges that it sent the Plaintiff an initial demand letter, dated January 2, 2004, seeking payment on the debt; that letter contained the "validation notice" required by the FDCPA. The Plaintiff disputes this allegation on the basis that he never received such a letter. Blatt further asserts that on October 1, 2004, it filed suit on behalf of Midland in the Sangamon County Circuit Court. The Plaintiff was served with that lawsuit on October 20, 2004. Blatt notes that the Plaintiff was served at the same address where the initial demand letter had been sent nine months earlier. The Plaintiff disputes the portion of Blatt's allegation pertaining to the demand letter. According to its complaint, Midland sought $1,232.26, plus costs. The Plaintiff contends that the summons and complaint in Midland Credit Management, Inc. v. Moore, 2004-SC-5497, were the first documents he had ever received from Blatt; he claims never to have received any correspondence from Blatt. Blatt disputes these allegations on the basis of the initial demand letter it claims to have sent to Plaintiff on January 2, 2004.

The Plaintiff asserts that no such demand letter was sent in January 2004. The Plaintiff states that he and his fiancé, who lives at the same address, regularly check their mail and open and read all mail, particularly any mail that appears to have legal or financial significance. According to the Plaintiff, neither individual ever received, opened or read any correspondence from Blatt. The Plaintiff further asserts that in early 2004, he and his fiancé experienced serious difficulties with their mail delivery service. Neighborhood youths stole their mail; their mail was sometimes scattered in the area; it was sometimes placed in their neighbors' mailboxes and expected mail sometimes never arrived. The Plaintiff claims these problems were eventually resolved and/or ceased, but not until after January 2004. Blatt contends these alleged problems are legally insufficient to overcome the presumption of receipt under the "mailbox rule."

The Plaintiff alleges that Blatt's own records reveal that not once between January 2, 2004 and October 20, 2004, when the 2004-SC-5497 complaint was served, did anyone from Blatt speak to him; therefore, Blatt never ascertained whether Moore had received the alleged January 2004 letter. Blatt contends this is immaterial in that the lack of subsequent contact does not establish that the initial demand letter was not sent. Moreover, Blatt claims its records indicate that it made several unsuccessful attempts at phone contact before filing suit. On October 29, 2004, the parties appeared in court at which time the court directed the matter to be set over for trial. The Plaintiff claims it was then that he informed Judge Hall (the presiding judge) that he disputed the debt. Judge Hall wrote down the fact of the dispute and issued an order that a trial would be held, which the Plaintiff claims would only occur when a debt was disputed. Blatt was notified in writing of the dispute on that day. Blatt asserts the Plaintiff's allegation is immaterial, contending that whatever Plaintiff told Judge Hall does not satisfy § 1692g(b)'s requirement that, in order to trigger the collector's obligation to suspend collection efforts, the consumer must notify the debt collector in writing that the debt is disputed. Blatt contends it is also immaterial (for the same reason) and denied that Judge Hall "wrote down the fact of the dispute" or that "Blatt was notified in writing of the dispute on that day." Blatt claims no such writing has been produced and the court's docket entry for that day merely reflects "Continued for Setting."

The Plaintiff claims Blatt has acknowledged that in initial appearances in small claims cases in Sangamon County, if a defendant admits a debt then a judgment is taken, but if a defendant disputes a debt it is set for trial. Only one of those two things can happen, and the only reason a case would be set for trial is because the defendant disputed the debt. Blatt contends this is immaterial in that whatever the Plaintiff told Judge Hall does not satisfy § 1692g(b)'s requirement that the debt collector must be notified in writing that the debt is disputed.

The Plaintiff also claims that after being served with the complaint on October 20, 2004, but before the October 29, 2004 court appearance, he attempted to contact Blatt to discuss the complaint. However, no individual attorney's name was on the complaint, and the Blatt representatives who answered the phone could not or would not provide Plaintiff with any information. Blatt claims this allegation is immaterial and disputed, in that Blatt's account notes reflect no contact from Moore between October 20 and October 29.

On November 18, 2004, Blatt served the Plaintiff with a Notice of Trial setting the case for trial on January 3, 2005. The Plaintiff claims that because he did not know what the lawsuit was about, and could not get Blatt to explain it to him, Plaintiff was forced to retain counsel, who filed pleadings in the case and ultimately began a dialogue with Blatt. Blatt alleges that these assertions are immaterial. On or about December 23, 2004, the Plaintiff, through his attorney, filed a Section 2-619 motion to dismiss and noticed it to be heard on the date of trial.

On January 3, 2005, the parties agreed to settle the case for $700.00 plus $96.00 in court costs, for a total of $796.00, to be paid in monthly installments of $100.00 commencing on January 17, 2005, and continuing thereafter until paid in full. Blatt drafted a proposed Stipulation Order and faxed it to counsel for the Plaintiff on the same day. Counsel subsequently executed the Stipulation Order on behalf of the Plaintiff, and it was filed with the court on January 31, 2005. The case was dismissed without prejudice with leave to reinstate if Plaintiff defaulted on his payment plan.

The Plaintiff made his first six payments without incident. When Plaintiff was unable to make the July 2005 payment, counsel requested and Blatt agreed to a two-week extension. The Plaintiff made his remaining payments and, in September 2005, the account was closed and marked paid in full.

The Plaintiff alleges that he incurred debt for counsel's legal expenses of $2,518.23 as a result of Blatt's failure to provide pertinent information about the debt. Blatt disputes that Plaintiff has paid any legal expenses whatsoever, or that he will ever have to, or that Blatt's actions are the cause of any legal expenses. The parties have filed cross-motions for summary judgment.

II. ANALYSIS

A. Blatt's Summary ...


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