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Voris v. Creditors Alliance

November 28, 2007

MARK VORIS, PLAINTIFF,
v.
CREDITORS ALLIANCE, INC., DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff, Mark Voris ("Voris"), brings suit against Defendant, Creditors Alliance, Inc. ("CAI") under 15 U.S.C. § 1692c(a)(1), the Fair Debt Collections Practice Act ("FDCPA" or "the Act"), seeking actual and statutory damages arising from phone calls made to Voris before 8:00 a.m. to collect a debt. CAI moves for summary judgment. For the reasons stated herein, CAI's Motion for Summary Judgment is granted and Voris's case is dismissed with prejudice.

STATEMENTS OF FACT

Voris resides at 116 S. Clifton in Park Ridge, Illinois ("the Clifton address") and is a twenty-two year veteran of the information technology sector. Pl. Resp. 56.1 ¶¶ 1, 4.*fn1 On February 13, 2000, Voris formed a single member limited liability company called Intelimind LLC ("Intelimind"). Id. Intelimind is an information technology company. Id. In 2000 and 2001, Voris ran Intelimind from his home and took a 25% deduction on his taxes for using his home as his business office. Id.

In May 2000, Voris engaged The Hechtman Group ("THG"), to perform accounting services and met with James Hechtman ("Hechtman"), a CPA and principal of THG. Pl. Resp. 56.1 ¶ 6. During their first meeting, Hechtman and Voris discussed forming Intelimind, using Quickbooks for business accounting, employee issues such as hiring and payroll, and taxes for Intelimind and Voris. Def. Resp. 56.1 ¶ 1. THG worked with Voris and Intelimind from May 2000 to October 2002 and THG prepared eight invoices associated with its work. The last invoice was dated October 31, 2002 and states as follows:

Professional Services Rendered as follows: Services rendered regarding preparation of federal and 1,370.00 state individual income tax returns for the year ended December 31, 2001.

Services rendered regarding income tax and financial 625.00 planning for the year ended December 31, 2001 and 2002.

Services rendered in client discussions and emails 150.00 regarding payroll for 2002, writing off old invoices and other quickbooks related questions.

Pl. Resp. 56.1 ¶ 7; Def. Resp. 56.1 ¶ 8; Ex. I. Hechtman cannot recall the specifics of the $625.00 charge for "income tax" and "financial planning" because the entry on the invoice was too vague. Def. Resp. 56.1 ¶ 7. The charge could have been related to work for Intelimind. Id. Regarding the $1,370.00 entry, Hechtman explained that the income tax preparation he performed was for Intelimind and Voris because Intelimind, as a single member limited liability company, is permitted under IRS regulations to file one set of taxes for both the member and the limited liability company. Pl. Resp. 56.1 ¶ 10. Intelimind, as a limited liability company, does not have its own tax liability from the IRS's perspective and essentially, for tax purposes, a single member limited liability company and the actual person are one in the same. Id. In other words, when an accountant does the taxes for the person, he is doing the taxes for the LLC. Id. Voris filed federal and state tax returns prepared by THG for the year ended December 31, 2001. Pl. Resp. 56.1 ¶ 9. Intelimind paid the taxes owed under the 2001 Tax Returns with checks drawn on Intelimind's bank account. Pl. Resp. 56.1 ¶ 9.

THG sent all eight invoices to Intelimind's registered business address, the Clifton address.*fn2 Pl. Resp. 56.1 ¶ 7; Def. Resp. 56.1 ¶ 8. Hechtman knew Voris was running Intelimind out of his home. Pl. Resp. 56.1 ¶ 7. Orla Voris ("Mrs. Voris') gave the invoices THG sent to Intelimind to Voris because those bills were for Intelimind. Pl. Resp. 56.1 ¶ 28. The invoices sought payment for THG's services which included preparing federal and state individual income tax returns, payroll taxes, income taxes, and financial planning. Pl. Resp. 56.1 ¶ 7; Def. Resp. 56.1 ¶ 8. Intelimind paid seven out of eight invoices from THG, but did not pay the October 31, 2002 invoice leaving a balance of $2,145.00 (the "debt"). Pl. Resp. 56.1 ¶ 8. The October 31, 2002 invoice was submitted by THG to Intelimind at the Clifton address which was Intelimind's registered business address. Ex. I. THG included Voris's name on the invoices in addition to Intelimind's because of prior problems associated with mailing items to Intelimind's registered business address. Def. Resp. 56.1 ¶ 6.

When Intelimind failed to pay the debt, THG sent the October 31, 2002 invoice to CAI, an Illinois corporation engaged in the business of collecting third party debts. Pl. Resp. 56.1 ¶¶ 2,8. Prior to commencing collection procedures, the original creditor, in this case THG, must prepare and submit a collection ticket indicating whether the referred debt is commercial or consumer in nature.

Pl. Resp. 56.1 ¶ 11. The original creditor must also provide information necessary to collect the debt such as the consumer or the business'saddress and contact information. Pl. Resp. 56.1 ¶ 11. CAI uses collection tickets to ensure compliance with the FDCPA. Pl. Resp. 56.1 ¶ 11.

On July 21, 2005, THG prepared and submitted a collection ticket to CAI to initiate collection of the debt. Pl. Resp. 56.1 ¶ 12. THG identified the debtor as Intelimind with an address of 116 S. Clifton, Park Ridge, Illinois, a phone number of (847) 384-1519, Voris's home number, a contact name of Mark Voris, and a debt amount of $2,145.00 for professional services. Id. THG marked the "commercial" versus the "consumer" box on the collection ticket indicting that the debt was "commercial" in nature. Def. Resp. 56.1 ¶¶ 4, 9; Ex. K.*fn3 CAI received the collection ticket on July 26, 2005 and assigned Agnes Hedin ("Hedin") as the debt collector. Pl. Resp. 56.1 ¶ 13. Hedin attempted to collect the debt as a commercial debt by sending collection letters to Intelimind and calling the phone number THG provided for Intelimind on the collection ticket--Voris's home number. Pl. Resp. 56.1 ¶ 11. Unbeknownst to CAI, when Voris filed his 2000 federal and state income taxes, he had a separate office line. Def. Resp. 56.1 ¶¶ 4, 9. Hedin believed that the Debt was a commercial debt and never received any information indicating that it was not a commercial debt. Pl. Resp. 56.1. ¶ 13. At the time CAI called Voris, CAI was not aware whether the person who answered the phone was an officer or employee of Intelimind. Def. Resp. 56.1 ¶ 14.

Voris alleges that he received three phone calls at an inconvenient hour-- October 25, 2005 at 7:55 a.m., November 21, 2005 at 7:15 a.m., and November 22, 205 at 7:25 a.m. Pl. Resp. 56.1 ¶ 19. However, at his deposition, Voris could not remember the dates or times CAI called and believed that his wife spoke with CAI on one occasion. Pl. Resp. 56.1 ¶ 20. Mrs. Voris is not an employee of Intelimind. Def. Resp. 56.1 ¶ 15. Both parties produced phone records for the relevant time period. Voris's phone records show that CAI called Voris on October 25, 2005 at 8:59 a.m. Pl. Resp. 56.1 ¶ 21. Voris's phone records do not show that he received any phone calls from CAI on November 21 and 22, 2005 before the hour of 8:00 a.m. Pl. Resp. 56.1 ¶ 22. Voris claims that his phone bills reflect call ...


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