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DeKoven v. Plaza Associates

March 31, 2009

DORIS DEKOVEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
PLAZA ASSOCIATES, A NEW YORK COMPANY, DEFENDANT.



The opinion of the court was delivered by: David H. Coar United States District Judge

HONORABLE DAVID H. COAR

MEMORANDUM OPINION AND ORDER

Class representative Doris DeKoven ("Plaintiff" or "DeKoven"), individually and on behalf of all other similarly situated, brings this action against Defendant Plaza Associates ("Defendant" or "Plaza Associates") alleging a violation of Section 1692(e) of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. At issue are letters sent by Defendant to the plaintiff class, attempting to collect on delinquent debts allegedly owed to third parties. Both parties now move pursuant to Fed. R. Civ. P. 56 for summary judgment. Additionally, Defendant has filed a motion, pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993), to bar Plaintiff's expert Howard Gordon.

STANDARD

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the non-movant must set forth specific facts (a "scintilla of evidence" is insufficient) demonstrating that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 252; see also Celotex, 477 U.S. at 324. When reviewing a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Schuster v. Lucent Tech., Inc., 327 F.3d 569, 573 (7th Cir. 2003).

FACTS

The following facts are undisputed unless otherwise noted. Plaintiff Doris DeKoven is an Illinois resident from whom Defendant Plaza Associates attempted to collect a delinquent consumer debt allegedly owed to Card Management Services Spiegel's ("Spiegel's"). Pl.'s Local Rule 56.1 Statement of Material Facts ("Pl.'s SOF") ¶ 1. Defendant Plaza Associates is a New York company that acts as a debt collector as defined by § 1692(a) of the FDCPA. Id. at ¶ 2. Defendant sent Plaintiff two form collection letters, dated October 7, 2004 and October 8, 2004. Both letters stated in pertinent part:

A SETTLEMENT OFFER

Please be advised that we are a professional collection agency.

We have been authorized to offer you the opportunity to settle this account with a lump sum payment for 65 % of the above balance due, which is equal to $2,459.22.

This offer will be valid for a period of thirty-five (35) days from the date of this letter.

Id. at 5, Ex. B. DeKoven testified at her May 15, 2008 deposition that she interpreted Plaza's settlement offer as an ultimatum-that she would have to take the settlement or else. Id. at 14.

The collection agreement between Defendant and Spiegel's gave Defendant blanket authority to compromise or settle the amount owed on a debt at any time for 60% of the balance. Id. at 8. Defendant's account history for DeKoven shows that, in addition to settlement offers for 65% of the balance in the form collection letter at issue, Defendant subsequently sent DeKoven at least two additional form collection letters, on January 22, 2005 and March 5, 2005, offering to settle her account for 50% of the total balance. Id. at 10, Ex. F at 3.

This Court granted Defendant's motion to dismiss on September 29, 2006. On December 21, 2007, the Seventh Circuit remanded the case for reconsideration in light of Evory v. RJM ...


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