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McKinney v. Cadleway Properties

December 4, 2006

VERSIA S. MCKINNEY, PLAINTIFF,
v.
CADLEWAY PROPERTIES, INC., AND CINDY SCIALOIA, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff, Versia McKinney ("Plaintiff") filed a complaint against Defendants, Cadleway Properties, Inc. ("Cadleway") and Cindy Scialoia ("Scialoia") (collectively "Defendants"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Pursuant to Federal Rules of Civil Procedure 56(c) Plaintiff and Defendants cross-move for summary judgment. Plaintiff's motion is granted with respect to Cadleway because within the meaning of the FDCPA, Cadleway is a "debt collector" and Plaintiff's obligation is a "debt." Defendants' motion is granted in favor of Scialoia because there is no genuine issue of material fact that she was employed by Cadleway and acting within the scope of her employment.

FACTS

Plaintiff acquired a home repair assistance loan from the Small Business Administration ("SBA") on September 19, 1996 to repair damage to her home caused by sewer overflow and to ensure protection from future water damage. (Pltf. Ex. O; Mem. Supp. Pl.'s Mot. Summ. J. at 2-3). In September of 2002, Aurora Services purchased Plaintiff's loan from the SBA and in turn sold the loan to Cadleway. (Mem. Supp. Pl.'s Mot. Summ. J. at 2-3.) Prior to Cadleway's acquisition of Plaintiff's loan, Plaintiff defaulted on her payments. (Id.) Subsequently, Cadleway sent Plaintiff a letter requesting validation and confirmation of Plaintiff's debt. (Id.)

Cadleway alleges that it is not a "debt collector" within the meaning of the FDCPA.*fn1 (Defs.' Br. Supp. Defs.' Mot. Summ. J. at 1.) Cadleway claims that it is an investment company that originated as a commercial real estate acquisitions company and currently seeks to acquire assets for profit. (Id. at 3.) Cadleway asserts that because it collects its own debts, it is a "creditor" and exempt from the provisions of the FDCPA. (Id.) Furthermore, Cadleway contends Scialoia, an employee of Cadleway, did not violate the Act because she falls within an exception provided for employees attempting to collect debts in the name of their employer. (Id. at 4-5.)

Prior to filing cross-motions before this Court, both parties filed for summary judgment before Honorable Ronald A. Guzmàn; both motions were denied on January 20, 2006.*fn2 In order to mount a successful claim under the FDCPA, Plaintiff must demonstrate: (i) plaintiff's obligation is a "debt;" (ii) defendant is a "debt collector;" and (iii) the "debt collector's" actions violate the FDCPA. Courts examine alleged FDCPA violations "through the eyes of an 'unsophisticated debtor." See Durkin v. Equifax Check Serv. Inc., 406 F.3d 410, 414 (7th Cir. 2005); Pettit v. Retrieval Masters Creditors Bureau, 211 F.3d 1057, 1060 (7th Cir. 2000) (stating "we and other courts have held that our uneducated debtor possesses rudimentary knowledge about the financial world, is wise enough to read collection notices with added care, possesses 'reasonable intelligence,' and is capable of making basic logical deductions and inferences."). In ruling upon the previous motions for summary judgment, Judge Guzmàn concluded, "[a]ny reasonable jury would find that the contested letter would confuse an unsophisticated consumer." McKinney v. Cadleway Prop., Inc., No. 04 C 8248, 2006 WL 208707 (N.D. Ill. Jan. 20, 2006.) However, because neither Plaintiff nor Defendants addressed whether Plaintiff's obligation is "debt" or whether Defendants are "debt collectors" within the meaning of the FDCPA, Judge Guzmàn did not grant summary judgment in favor of either party. Id. at *2. (stating "[b]ecause plaintiff has offered no evidence to establish an essential element of her claim, her summary judgment motion must be denied.").

Therefore, a determination of the cross-motions before this Court requires the resolution of two remaining issues: (i) whether, within the meaning of the FDCPA, Plaintiff's obligation is a "debt;" and (ii) whether, within the meaning of the FDCPA, Defendants are "debt collectors."

STANDARD OF REVIEW

Rule 56(c) states that a motion for summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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). Summary judgment is appropriate where there is no genuine issue as to any material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). This Court views evidence and draws all reasonable inferences in favor of the non-moving party. Michas v. Health Cost Controls of Ill, Inc., 209 F.3d 687, 692 (7th Cir. 2000). When considering cross-motions for summary judgment, this Court draws all reasonable inferences in favor of the party against whom the motion being considered is made. Allen v. City of Chi., 351 F.3d 306, 311 (7th Cir. 2003). Once a moving party has demonstrated that summary judgment is appropriate, the opposing party must do more than "simply show that there is some metaphysical doubt as to material facts" to defeat the motion. Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 547, 586-87 (1986). A "mere scintilla of evidence" is insufficient to defeat a motion for summary judgment. Anderson, 477 U.S. at 252.

DISCUSSION

Congress enacted the FDCPA to "protect against abusive debt collection practices which would likely disrupt a debtor's life." Pettit, 211 F.3d at 1059; see also 15 U.S.C. § 1692(e). The Act forbids the use of "false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. The FDCPA "applies only to 'debt collectors' whose conduct involves the collection of a debt." McCready v. Ebay, Inc., 453 F.3d 882, 887 (7th Cir. 2006). In order for a violation to occur, the debt in question must fall within the Act's definition of "debt," and the person collecting the debt in violation of the Act must fall within the Act's definition of "debt collector."

When interpreting a statute with plain language, a court's duty is to enforce the statute's terms. Pittway Corp. v. U.S., 102 F.3d 932, 936 (7th Cir.1996). The plain language of the FDCPA "tells us that an individual is not a 'debt collector' subject to the Act if the debt he seeks to collect was not in default at the time he purchased (or otherwise obtained) it." Bailey v. Sec. Nat'l Servicing Corp., 154 F.3d 384, 387 (7th Cir. 1998); Whitaker v. Ameritech Corp., 129 F.3d 952, 959 (7th Cir. 1997) (stating "[t]he statute specifically does not apply to entities who acquire a debt 'not in default at the time it was obtained.'"). Likewise, the statute's language indicates that an individual who obtains a debt that is in default is a 'debt collector' within the meaning of the FDCPA. 15 U.S.C. § 1692a(5); Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 536 (7th Cir. 2003); see also Bailey, 154 F.3d at 387 (stating "[c]ommon sense and the plain meaning of the statute require that we distinguish between an individual who comes collecting on a defaulted debt and one who seeks collection on a debt owed under a brand new payment plan").

The FDCPA defines "debt" as: any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. 15 U.S.C. § 1692a(5). The FDCPA defines "debt collector" as: any person who uses any instrumentality of interstate commerce or the mails in any business the principle purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. This term does not include

(a) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor . . . (f) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . (iii) concerns a ...


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