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Turner v. J.V.D.B. & Associates

April 9, 2007

STEPHEN P. TURNER, PLAINTIFF,
v.
J.V.D.B. & ASSOCIATES, INC., AN ILLINOIS CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

This opinion is the latest, but probably not the last, chapter in six years of litigation. The litigation includes two trips to the Seventh Circuit, two summary judgment decisions, a motion for judgment on the pleadings, and now a second bench trial. Plaintiff Stephen P. Turner ("Plaintiff" or "Turner") seeks to recover $1000.00 for an allegedly wrongful attempt by Defendant, J.V.D.B. & Associates, Inc. ("Defendant" or "J.V.D.B."), to collect from him a $97.80 debt that had been discharged in bankruptcy. The Court conducted a bench trial and heard closing arguments on March 20, 2007. The Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

I. PROCEDURAL BACKGROUND

A. PROCEEDINGS THROUGH THE FIRST APPEAL

Plaintiff filed his complaint on August 1, 2001. The complaint alleged that Defendant violated sections 1692e,*fn1 1692f,*fn2 and 1692c(a)(2)*fn3 of the Fair Debt Collection Practices Act ("FDCPA") by sending Plaintiff a letter attempting to collect a debt that had been discharged in bankruptcy. The debt was owed to Pre-Paid Local Access Phone Service Company ("Pre-Paid"), who sold it to a third party, who hired Defendant to collect it. The magistrate judge previously assigned to the case granted Defendant's motion for summary judgment, finding that Defendant did not know of the bankruptcy and that at the time of the letter in question, Plaintiff did not have an attorney for the debt collection matter, and therefore could not be held liable as a matter of law.Turner v. J.V.D.B., No. 01 C 5896 (N.D. Ill. Aug. 27, 2002).

Plaintiff appealed, and the Seventh Circuit reversed and remanded as to the section 1692e count, finding that Defendant's ignorance of thebankruptcy was no excuse, and affirmed as to the section 1692f count.*fn4 Turner v. J.V.D.B. & Assoc. Inc., 330 F.3d 991 (7th Cir. 2003) ("Turner I"). The Seventh Circuit noted that, on remand, Defendant might properly raise an affirmative defense of bona fide error under section 1692k(c).*fn5 Id. at 995.

B. PROCEEDINGS THROUGH THE SECOND APPEAL

On remand, the magistrate judge granted Plaintiff's motion for summary judgment on Defendant's section 1692k(c) affirmative defense, conducted a bench trial on Plaintiff's section 1692e count, and entered judgment in favor of Defendant by way of minute order. Turner v. J.V.D.B. & Assoc., Inc., 318 F.Supp.2d 681(N.D. Ill. 2004) (summary judgment); Turner v. J.V.D.B. & Assoc., Inc., No. 01 C 5896 (N.D. Ill. April 25, 2004) (judgment in bench trial). Plaintiff also moved for judgment on the pleadings, arguing that under Randolph v. IMBS, Inc., 368 F.3d 726 (7th Cir. 2004), the collection letter falsely stated that the Pre-Paid debt was still owed and was therefore presumptively wrongful. The magistrate judge denied the motion, reasoning that the specific mandate in Turner I controlled the case on remand, and that the language in Randolph on which Plaintiff relied was dictum. Turner v. J.V.D.B. & Assoc., Inc., 330 F.Supp.2d 998 (N.D. Ill. 2004).

Plaintiff appealed the judgment from the bench trial, but Defendant did not appeal from the ruling striking its section 1692k(c) defense. The Seventh Circuit vacated and remanded because no findings of fact on the evidence were made. The Seventh Circuit defined the question to be answered on remand in connection with the claim under section 1692e as "whether J.V.D.B.'s letter to Turner implied to a reasonably objective, but unsophisticated consumer that the debt discharged in bankruptcy was still payable." Turner v. J.V.D.B. & Assoc., 202 F. App'x 123, 125 (7th Cir. 2006 ) ("Turner II"). That question is now before the Court.

II. FINDINGS OF FACT

A. Evidence Presented

1. Bankruptcy Documents

Plaintiff filed a voluntary bankruptcy petition on March 17, 2000. PX 2.*fn6 Plaintiff listed a $100.00 debt owed to Pre-Paid Local Access Phone Service Company for account number 5418 on his Schedule F form, which lists creditors holding unsecured non-priority claims. Id. Notice of Plaintiff's bankruptcy was served on Pre-Paid ...


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