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Longo v. Law Offices of Gerald E. Moore & Associates

September 26, 2008

SONYA L. LONGO, PLAINTIFF,
v.
LAW OFFICES OF GERALD E. MOORE & ASSOCIATES, P.C., WORLDWIDE ASSET MANAGEMENT, LLC, AND WORLDWIDE ASSET PURCHASING, LLC, DEFENDANTS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

MEMORANDUM OPINION AND ORDER

Plaintiff, Sonya L. Longo, brought a class action against the Law Offices of Gerald E. Moore & Associates, P.C. ("GEMA"), Worldwide Asset Management, LLC ("WAM"), and Worldwide Asset Purchasing, LLC ("WAP") (collectively, "defendants"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. On March 30, 2006, the court granted plaintiff's motion for class certification, defining the class as "all individuals, wherever located, who were sent a letter by one or more of the defendants referencing a fee for payments made by telephone in connection with a debt owned or serviced by or placed for collection with WAM or WAP anytime after September 1, 2003 and before September 21, 2004." Dkt. No. 50 (minute order) (March 30, 2006).

Before the court is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which defendants filed on January 28, 2008. On that same day, plaintiff filed a motion for "summary determination" pursuant to Rule 56(d). After reviewing all of the parties' briefs regarding both motions, however, the court has determined that plaintiff's motion essentially presents the flip side of defendants' motion and need not be addressed separately.

For the following reasons, defendants' motion for summary judgment [#113] will be granted. In light of the court's ruling on defendants' motion for summary judgment, plaintiff's motion for summary determination [#110] must be denied as moot.

BACKGROUND

In 2004, Longo's MasterCard credit card account, issued by Direct Merchants Credit Card Bank ("DMCCB"), went into arrears. Defs.' Local Rule 56.1 Statement of Material Facts ("Defs.' SoF") ¶ 1. By June of that year, Longo's debt was written off by DMCCB with an outstanding balance of approximately $3,800. Id. ¶ 2. DMCCB subsequently sold Longo's account to WAP, a purchaser of consumer debt. Id. ¶ 3. WAP then forwarded Longo's account to WAM, a master-servicing agency, that in turn referred it to National Asset Management, which placed it for collection with GEMA. Id. ¶¶ 5, 6. On or about June 17, 2004, GEMA sent a letter to plaintiff identifying WAP as the new owner of her DMCCB debt and identifying GEMA as the firm handling collections on the account. Id. ¶ 7. On receipt of the letter, Longo forwarded it to her attorney, Jerome Lamet of Debt Counsel for Seniors, who was representing her with respect to debt collection issues. Id. ¶ 8. On or about July 6, Longo called GEMA, informed it that she was represented by Lamet, and provided his name and contact information. Id. ¶ 10. After that, Longo had no further direct contact with GEMA. Id. ¶ 12.

On or about July 21, 2004, GEMA sent out a collection letter addressed to Longo in care of her attorney at her attorney's office address, as follows:

SONYA L LONGO C/O DEBT COUNSEL FOR SENIORS 542 S DEARBORN ST CHICAGO, IL 60605-1508

Defs.' SoF ¶ 13; Pl.'s Resp. to Defs.' SoF ¶ 16; Pl.'s Resp. to Defs.' Mot. for Summary Judgment ("Pl.'s Resp.") at 6. The letter presented Longo with an offer to "settle" the account originating from her outstanding DMCCB debt. Defs.'SoF ¶ 13. The letter also stated, in part:

If you have elected to make payments by phone, our office charges a processing and handling fee of $7.50 per transaction for this service. This fee is addition [sic] to your actual payment and the fee will not be credited to your outstanding balance.

Pl.'s Resp. to Defs.' SoF ¶ 13; Pl.'s Compl., Ex. A. Longo subsequently filed this lawsuit, alleging that the $7.50 fee referenced in the letter violates 15 U.S.C. § 1692f of the FDCPA and that defendants, by asking for the $7.50 fee, made deceptive representations in violation of § 1692e.

STANDARD

Summary judgment is properly granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986); Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 677 (7th Cir. 2008). Further, "[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." Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007) (citing Celotex, 477 U.S. at 324). A genuine issue of material fact must be outcome determinative under the governing law in order to warrant denial of summary judgment. Insolia v. Philip Morris Inc., 216 F.3d 596, 598--99 (7th Cir. 2000). Finally, in resolving a motion for summary judgment, the court must construe all ...


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