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Jackson v. Midland Credit Management

August 18, 2006

PHILLIP JACKSON AND DANIECE BONNER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
MIDLAND CREDIT MANAGEMENT, INC. DEFENDANT.
NOAH DOWNS, JR., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
MIDLAND CREDIT MANAGEMENT, INC. DEFENDANT.
SHARON ACKMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
MIDLAND CREDIT MANAGEMENT, INC. DEFENDANT.



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER

On December 7, 2004, plaintiffs Phillip Jackson and Daniece Bonner filed a consolidated class action complaint alleging a violation Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., ("FDCPA"), against defendant Midland Credit Management, Inc. ("defendant") (04 C 5056, Dkt. No. 1). Two related cases, Downs v. Midland Credit Management, (05 C 724, Dkt. No. 26), and Ackman v. Midland Credit Management, (05 C 3759, Dkt. No. 17), were reassigned to this court pursuant to Local Rule 40.4 (collectively "plaintiffs"). Pending before the court are the defendant's April 27, 2006 motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rules") (Dkt. Nos. 132, 136), the defendant's April 27, 2006 Daubert motion to bar the plaintiffs' expert (Dkt. No. 139), the plaintiffs' June 5, 2006 motion for summary judgment (Dkt. No. 143) and the defendant's June 26, 2006 motion to strike (Dkt. No. 157). For the reasons set forth below, this court grants the defendant's motion for summary judgment.

BACKGROUND

The defendant is a debt collector. It purchased debts from third-party creditors. The plaintiffs had outstanding debts with the third-party creditors that were purchased by the defendant. The defendant sent letters to the plaintiffs attempting to collect the plaintiffs' outstanding debts. The plaintiffs alleges that these letters violate § 1692e of the FDCPA.

The collection letters in dispute are entitled "Settlement Opportunity." (Dkt. No. 145 at Ex. G). The top portion of the letter lists Midland Credit Management, Inc. plus its address, telephone and fax contact information. The letter also contained the date the letter was produced, the name of the plaintiff's account, account number, the third-party creditor that originally owned the debt, the current balance on the debt and a payment due date. (Id.) The payment due date stated in the letter is approximately one month after the date of the letter. The center portion of the collection letter states:

Dear [plaintiff], You won't want to miss this settlement opportunity offered to you by Midland Credit Management, Inc, servicer of the above referenced account. Recognizing that you may have gone through some financial difficulty and have been unable to satisfy your account we would like to offer you a positive and flexible option to resolve your account for 50% off the Current Balance.

If we receive payment by [one month after the date of the letter], in the amount of [50% of the current balance due], we will consider the account balance paid in full!

CALL NOW! To take advantage of this opportunity, please contact us TOLL-FREE at [providing 1 800 number] and any of our Account Managers will be able to assist you.

MAIL! You may prefer to settle your Current Balance by using the Acceptance Certificate below. Simply detach the form and enclose it with your [payment of 50% of the current balance due] in the envelope provided. ... (Id.) (emphasis in original). The bottom portion of the collection letter is a tear off stub that the plaintiff encloses with his or her mailed payment. The stub is entitled "Acceptance Certificate" and also states the account number, current balance, amount due and payment due date. (Id.)

LEGAL STANDARDS

Under Rule 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the evidence of the non-movant must be believed and all justifiable inferences must be drawn in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In considering a motion for summary judgment, this court is not required to scour the record in search of evidence to defeat the motion; the nonmoving party must identify with reasonable particularity the evidence upon which the party relies. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir. 2003). In evaluating a motion for summary judgment, this court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. See Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001) ("The primary purpose of summary judgment is to isolate and dispose of factually unsupported claims."). A party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see, e.g., Koszola v. Bd. of Educ. of the City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004) (citing Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003)). The evidence relied upon in defending a motion for summary judgment must be competent evidence of a type otherwise admissible at trial. Stinnett v. Iron Work Gym/Exercise Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002).

ANALYSIS

The FDCPA prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. §1692e. This includes "the use of any false representation or deceptive means to collect or attempt to collect any debt." 15 U.S.C. § 1692e (10). The purpose of the FDCPA is to "protect against abusive debt collection practices which would likely disrupt a debtor's life." Gully v. Van Ru Credit Corp., 381 F. Supp. 2d 766, 767 (N.D. Ill. 2005) (quoting Pettit v. Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir. 2000)).

This court evaluates FDCPA claims through the eyes of an "unsophisticated debtor." McMillian v. Collection Professionals Inc., -- F.3d --, No. 05-2745, 2006 WL 1867483, at *2 (7th Cir. July 7, 2006) (citing Gammon v. GC Servs. Ltd. P'Ship, 27 F.3d 1254, 1257 (7th Cir. 1994)). "The unsophisticated debtor is regarded as 'uninformed, naive, or trusting,' but nonetheless is considered to have a 'rudimentary knowledge about the financial world and is capable of making basic logical deductions and inferences." Sims v. GC Servs., L.P., 445 F.3d 959, 963 (7th Cir. 2006) (quoting Fields v. Wilber Law Firm, P.C., 383 F.3d 562, 564 (7th Cir. 2004)). This is an objective standard and therefore rejects "unrealistic, peculiar, bizarre and idiosyncratic interpretations of collection letters" or the view of the "least ...


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