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Beler v. Blatt

March 30, 2007

ELLA M. BELER, PLAINTIFF,
v.
BLATT, HASENMILLER, LEIBSKER, & MOORE, LLC. DEFENDANTS.



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

ORDER

In this consolidated case, the Court considers two motions to dismiss filed by Defendant Blatt, Hasenmiller, Leibsker & Moore, LLC ("Blatt") with respect to claims Plaintiff Ella Beler ("Beler") filed under the Fair Debt Collection Practices Act, 15 U.S.C. §1692, et seq. ("FDCPA").

FACTS

Beler accumulated charges on her Providian credit card and then failed to pay her debt. Providian sold her account to Palisades Collection LLC and Palisades retained Blatt to collect Beler's debt. Blatt sent Beler an initial demand letter on August 19, 2004. Beler ignored the letter.

Acting on Palisades' behalf, Blatt sued Beler on October 21, 2004, for $3011.70 plus court costs. See Palisades Collection LLC v. Beler, Sangamon County Cir. Ct., Case No. 2004 SC 4801. The complaint Blatt filed on that date was supported by an affidavit from a Palisades employee attesting to the amount due. The affidavit also stated that Palisades was the assignee of "Providian National Bank." Beler admitted she owed the money and judgment was entered against her on November 19, 2004. Beler failed to satisfy the judgment or make arrangements to do so. Thus, on January 28, 2005, Blatt issued a citation to discover assets. On February 25, 2005, the state court issued a conditional judgment against Beler's bank for an amount equal to the underlying judgment. Beler's attorney filed a motion to quash on March 24, 2005, arguing that the funds in her bank account contained exempt Social Security benefits. Blatt dismissed its citation, but the judgment against Beler has never been satisfied.

In addition to the foregoing state court matter, Beler was subjected to a second state court lawsuit. Like the first suit, the second one began when Beler failed to pay other charges she accumulated on her Providian credit card. Providian sold the delinquent account to Palisades and Palisades retained Blatt to collect Beler's debt. Once again acting on Palisades' behalf, Blatt sent Beler an initial demand letter on December 16, 2004. Beler ignored that letter as she had the previous one. On February 18, 2005, Blatt sued Beler in state court on Palisades' behalf. Blatt sought judgment of $2855.50 plus court costs. See Palisades Collection LLC v. Beler, Sangamon County Cir. Ct., Case No. 2005 SC 0947. An affidavit from a Palisades employee attested to the amount due and stated that Palisades was "Providian National Bank['s]" assignee. Id.

On February 24, 2005, Beler was served with a copy of the complaint. Id. Beler appeared with counsel at a March 18, 2005, hearing and the court set the case for trial. Prior to trial, Palisades moved to voluntarily dismiss the case. On June 21, 2005, the state court dismissed the case without prejudice.

On February 24, 2006, Beler turned the tables and filed two FDCPA lawsuits against Blatt in this Court. She filed both cases on the same day. Because the cases involved the same parties and raised similar issues, the Court consolidated them under Federal Rule of Civil Procedure 42(a). See docket entry dated Oct. 2, 2006.

In the first lawsuit, Beler v. Blatt, Hasenmiller, Leibsker, & Moore, LLC., 06-3038 (C.D.Ill. Feb. 24, 2006), Beler alleged Blatt violated §1692e of the FDCPA by filing and "serving upon Plaintiff a pleading and affidavit that is false and misleading as to the identity of the creditor and the existence of an assignment of the underlying alleged debt," and by "threatening to take the action of litigating the debt" when Blatt did not intend to litigate. Id. In the second lawsuit, Beler v. Blatt, Hasenmiller, Leibsker, & Moore, LLC., 06-3040 (C.D.Ill. Feb. 24, 2006), Beler alleged Blatt violated § 1692f of the FDCPA by attempting to collect a debt from exempt Social Security benefits. Id. She also claimed Blatt violated § 1692e by filing and serving upon her a pleading an affidavit that was false and misleading as to the creditor's identity and the existence of an assignment of the debt. Id.

Blatt moves the Court to dismiss Beler's cases as untimely. Alternatively, Blatt asserts that dismissal is appropriate because the state court complaint was not false or misleading and there was no false threat of legal action.

STANDARD OF REVIEW

When considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a court must accept the allegations set forth in a plaintiff's complaint as true and all reasonable inferences should be drawn in favor of Plaintiffs. Cleveland v. Rotman, 297 F.3d 569, 571 (7th Cir. 2002). Dismissal is appropriate only if "no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

ANALYSIS

The FDCPA provides a one-year statute of limitations. 15 U.S.C. ยง 1692k ("An action to enforce any liability created by this subchapter may be brought . . . within one year from the date on which the violation occurs."). The offending acts that Beler alleges are all contained in the state court complaint that Blatt filed on February 18, 2005. Blatt served Beler with a ...


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