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Kubert v. AID Associates

May 7, 2009

KENT B. KUBERT, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
AID ASSOCIATES, D/B/A PLAZA ASSOCIATES, DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This matter comes before the court on the motion of Defendant AID Associates d/b/a Plaza Associates ("Plaza") to bar testimony from Howard Gordon and the cross motions of the parties for summary judgment. For the reasons set forth below, the motion to bar testimony is granted. Plaza's motion for summary judgment is granted; the plaintiff class's motion for summary judgment is denied.

BACKGROUND

In 2005, Plaintiff Kent Kubert allegedly owed a consumer debt to Target National Bank. Plaza acted as debt collector on behalf of the bank, and in the course of its collection efforts, Plaza sent a letter to Kubert. In pertinent part, the letter stated as follows:

We have been authorized to offer you the opportunity to settle this account with a lump sum payment for 50% of the above balance due, which is equal to $479.09.

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

Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. ...

You may already have satisfactory proof that this account is listed with us in error. If so, please send this notice back along with a copy of one of the following to support your claim: Bankruptcy Notice from the court stating case number and filing date, Satisfaction of Judgment, Proof of prior settlement, Letter from the original Creditor clearing your account. Approximately five months after receiving the letter from Plaza, Kubert filed the instant two-count complaint. Count I asserts that the letter ineffectively conveyed the 30-day validation notice required by 15 U.S.C. § 1692g(a). Count II claims that the language quoted above was a false, deceptive, or misleading statement in violation of the Fair Debt Collection Practices Act ("FDCPA"). 15 U.S.C. § 1692e. Kubert sought to represent a class of Illinois residents from whom Plaza attempted to collect a delinquent consumer debt allegedly owed to Target National Bank between October 12, 2004, and October 12, 2005. The class, which contains approximately 1850 members, was certified on February 9, 2006.

Discovery has been completed; the process included a survey of 160 users of credit at a mall in a suburb of Chicago conducted by Howard Gordon. Plaza has moved to bar testimony from Gordon as inadmissible. Each party also moves for summary judgment.

LEGAL STANDARDS

A. Motion to Bar Expert Testimony

The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and the standard of review initially established in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).*fn1 United States v. Parra, 402 F.3d 752, 758 (7th Cir. 2005). To be admissible, expert testimony must both be offered by a person qualified as an expert by their knowledge, skill, experience, training, or education and assist the trier of fact to understand the evidence or to determine a fact in issue. Fed. R. Evid. 702. The testimony must be based on facts and data that reliably relate to the facts of the case and that are proved by valid theory or technique. See Daubert, 509 U.S. at 593, 113 S.Ct. at 2796-97. The admission or exclusion of expert testimony is a matter left to the discretion of the trial judge. See Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990). Whether a particular witness as an expert is qualified is determined by comparison of the area in which the witness has superior skill, knowledge, education, or experience with the subject matter of the witness's proposed testimony. Id.

B. Cross Motions for Summary Judgment

Summary judgment is appropriate only when "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. Proc. 56(c). A genuine issue of material fact exists when the evidence is such that a reasonable jury could find for the non-movant. Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir. 1994). The movant in a motion for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact by specific citation to the record; if the party succeeds in doing so, the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554 ...


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