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Perry v. Capital One Bank

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS URBANA DIVISION


November 13, 2008

DAVID P. PERRY, SR., PLAINTIFF,
v.
CAPITAL ONE BANK, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

ORDER

Reports and Recommendations (#69, #70) were filed by Magistrate Judge David G. Bernthal in the above cause on October 23 and 24, 2008. On October 28, 2008, Plaintiff filed an Objection to Report and Recommendation #70 (#71). This court has conducted a careful and thorough de novo review of Judge Bernthal's reasoning and Plaintiff's Objection. Following this careful review, this court agrees with Judge Bernthal that the Fair Debt Collection Practices Act (FDCPA) applies only to "debt collectors" whose conduct involves the collection of a debt. This court further agrees that the FDCPA "does not contemplate personal liability for shareholders or employees of debt collection companies who act on behalf of those companies." Instead, the FDCPA employs the principle of vicarious liability, holding the employer responsible for the acts of its employees. Therefore, Plaintiff's arguments regarding telephone calls made by individual Defendants are unavailing. This court accepts, in their entirety, Judge Bernthal's Reports and Recommendations.

IT IS THEREFORE ORDERED THAT:

(1) The Reports and Recommendations (#69, #70) are accepted by this court.

(2) The Motion to Dismiss (#40) filed by Defendants Atlantic Credit & Finance, Inc., Richard Woolwine, Kelly Woolwine, Chris Hanson, John Harvey, Jaideep Ganguly, Kevin Hudson and Todd Kaus is GRANTED. The claims against these Defendants are dismissed with prejudice.

(3) Plaintiff's Motion to Deny Motion to Dismiss (#62) is DENIED as moot.

(4) The Motion to Dismiss (#47) filed by Defendants Blitt & Gaines, P.C., Fred Blitt, Jan Gaines, Michael Starzec and Angela Vandeventer is GRANTED in part and DENIED in part. The claims against the individual Defendants are dismissed with prejudice.

(5) Based upon this Order and the Order (#63) entered by this court on October 16, 2008, the only remaining Defendant in this case is Defendant Blitt & Gaines, P.C. Therefore, the clerk is hereby directed to terminate the following parties as Defendants: Capital One Bank, Richard D. Fairbank, Atlantic Credit & Finance, Inc., Richard Woolwine, Kelly Woolwine, Chris Hanson, John Harvey, Jaideep Ganguly, Kevin Hudson, Todd Kaus, Jan B. Gaines, Michael L. Starzec, Angela Vandeventer, and Fred N. Blitt.

(6) This case is referred to Judge Bernthal for further proceedings.

ENTERED this 13th day of November, 2008

20081113

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