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Jeffrey Lox v. Cda Ltd.

July 1, 2011

JEFFREY LOX, PLAINTIFF
v.
CDA LTD., D/B/A CREDITORS DISCOUNT & AUDIT CO., DEFENDANT



The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

E-FILED

Friday, 01 July, 2011 11:54:51 AM Clerk, U.S. District Court, ILCD

ORDER and OPINION

The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the court are the parties' motions for summary judgment (#30 and #31). They are fully briefed, and I have carefully considered the arguments and evidence submitted. As discussed herein, plaintiff's motion is denied and defendant's motion is granted.

JURISDICTION AND VENUE

This matter alleges violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §1692 et seq.. This Court accordingly has jurisdiction over the subject matter of the dispute pursuant to 18 U.S.C. §1331 because the dispute arises under the laws of the United States.

The Plaintiff is a resident of Glasford Illinois. Defendant is a corporation with a place of business in Peoria Illinois. The events giving rise to this litigation occurred in one or the other or both of those locations, both of which are within the Peoria Division of the Central District of Illinois. Venue is therefore proper in this district pursuant to 18 U.S.C. §1391(b).

SUMMARY JUDGMENT GENERALLY

The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment should be entered if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1016 (7th Cir.2000); Cox v. Acme Health Serv., 55 F.3d 1304, 1308 (7th Cir. 1995). In ruling on a summary judgment motion, the court may not weigh the evidence or resolve issues of fact; disputed facts must be left for resolution at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The court's role in deciding the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir.1994). The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.

The court is to examine all admissible facts, viewing the entirety of the record and accepting all facts and drawing all reasonable inferences in favor of the non-movant, Erdman v. City of Ft. Atkinson, 84 F.3d 960, 961 (7th Cir. 1996); Vukadinovich v. Bd. of Sch. Trustees, 978 F.2d 403, 408 (7th Cir. 1992), cert. denied, 510 U.S. 844 (1993); Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir. 1990); DeValk Lincoln-Mercury, Inc. V. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987); Bartman v. Allis Chalmers Corp., 799 F.2d 311, 312 (7th Cir. 1986), cert. denied, 479 U.S. 1092 (1987), and construing any doubts against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Trotter v. Anderson, 417 F.2d 1191 (7th Cir. 1969); Haefling v. United Parcel Serv., Inc., 169 F.3d 494, 497 (7th Cir.1999).

STATEMENT OF UNDISPUTED FACTS

The following statement of facts is taken from the parties' statements of undisputed facts, the responses and replies thereto, and the evidence submitted in support or in opposition.

Jeffrey Lox is an adult who lives in Glasford, Illinois, and he is a consumer as that word is defined by the FDCPA. He received medical treatment from Dr. Mark Baylor. At the time, he filled out and signed a "New Patient Information" form. (Plaintiff's Motion, Doc. #30 Exh. L). That form included the following language:

All professional services rendered are charged to the patient. The patient is responsible for all fees, regardless of insurance coverage. It is customary to pay for services when rendered unless other arrangements have been made in advance with our office bookkeeper.

Lox incurred a debt to Dr. Baylor in the amount of $235.07. He did not pay that debt*fn1 .

Dr. Baylor assigned the debt for collection to Creditors Discount & Audit Co. (referred to herein as "CDA"). It is not disputed that CDA is, a "debt collector" as that phrase is defined by the FDCPA. CDA's business includes collection of unpaid, outstanding account balances. As part of its daily business, CDA maintains account listings regarding the activity that takes place on each of its accounts. Notes about activities such as telephone calls, conversations, and written correspondence are noted contemporaneously in the account listing. If a debtor does not respond to CDA's letters, CDA seeks its client's permission to file suit. If permission is granted, CDA sends the account file to its attorney.

In late October of 2008 Lox received a one page letter at his home from CDA relating to the outstanding debt to Dr. Baylor. The substance of the letter (Amended Complaint, Doc. #5 Exh. A) was as follows:

Past Due Balance

***Detach Upper Portion And Return with Payment***

You have the right to pay this claim now. To avoid further steps, respond within 48 hours. Consider our clients lawful alternatives closely. Our Client may take legal steps against you and if the courts award judgment, the court could allow court costs and attorney fees.

Interest may be accruing if authorized under a contract.

DO NOT IGNORE THIS POSSIBLE LAST OPPORTUNITY TO PAY VOLUNTARILY

Creditor Name Account # Interest Balance

Total: $235.07

Mark C Baylor Md 2181a $0.00 $235.07

Contact: Ann

This is an attempt to collect a debt and any information obtained will be used for that purpose.

CDA did not communicate with Lox again until the spring of 2009. On May 13, 2009, CDA sent another letter to Lox at his home. This letter (Amended Complaint, Doc. #5, Exh. B) was identical to the first letter except for the date and some numeric coding.

CDA's account notes are difficult to decipher. Many abbreviations and codes are used. The entry from May 21, 2009 reads verbatim: "CLD HER NUMBR 7233; REC HAD NAME LM6109 P09 $25 MO". On that same date, CDA sent a third letter to Lox at his home. (Amended Complaint, Doc. #5, Exh. C). This letter did not appear to be a form letter, and its content was different from the first two. It read as follows:

CREDITORS DISCOUNT & AUDIT CO. 5/21/2009 ANN

2181a

LOX, JEFFREY [ADDRESS REDACTED] GLASFORD IL 61533

YOUR BALANCES DUE THE CLIENTS BELOW HAVE BEEN EXTENDED ON A PAYMENT PLAN OF $25.00 MONTHLY STARTING 5/29/09.

WE HAVE ALLOWED THIS COURTESY TO YOU BECAUSE WE BELIEVE THAT YOU WISH TO COOPERATE AND TAKE CARE OF THIS RESPONSIBILITY.

IF ANY PAYMENTS ARE MISSED WITHOUT OUR CONSENT, THE ENTIRE BALANCE WILL BECOME DUE.

THIS IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.

INTEREST MAY BE ACCRUING IF AUTHORIZED UNDER A CONTRACT.

CREDITORS DISCOUNT & AUDIT CO. [ADDRESS REDACTED]

PEORIA IL 60602-1499 PH.309-674-6109 OUTSIDE/309/ ...


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