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Stephanie Kaylor-Trent v. John C. Bonewicz

January 4, 2012

STEPHANIE KAYLOR-TRENT, PLAINTIFF,
v.
JOHN C. BONEWICZ, P.C., DEFENDANT.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Wednesday, 04 January, 2012 11:21:55 AM

Clerk, U.S. District Court, ILCD

OPINION

This cause is before the Court on the Motion for Judgment on the Pleadings (Motion) filed by Defendant John C. Bonewicz, P.C. (d/e 8). Defendant asks the Court to enter judgment against Defendant and in favor of Plaintiff, Stephanie Kaylor-Trent, on liability. Defendant also asks, however, that the Court find Plaintiff is not entitled to damages.

Defendant's Motion is GRANTED IN PART and DENIED IN PART. The Court will enter judgment in favor of Plaintiff and against Defendant on liability. However, the Court will not enter judgment in favor of Defendant and against Plaintiff on damages. Plaintiff has alleged a plausible claim for statutory damages.

I. FACTS

In August 2011, Plaintiff filed suit against Defendant pursuant to the Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. § 1692 et seq.), alleging violations of various sections of the FDCPA. See 15 U.S.C. §1692(d)(providing that "[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt"); 15 U.S.C. §1692d(6) (providing that "the placement of telephone calls without meaningful disclosure of the caller's identity" is a violation of § 1692d*fn1 ); 15 U.S.C. §1692(e) (providing that "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt"); 15 U.S.C. §1692(e)(10) (providing that it is a violation for a debt collector to use "any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer); 15 U.S.C. §1692(e)(11) (providing that it is a violation for a debt collector to fail "to disclose in subsequent communications that the communication is from a debt collector"). Plaintiff alleges that in June 2011, Defendant, in an attempt to collect a consumer debt from Plaintiff, began placing collection calls to Plaintiff on her cell phone. ¶ 12. Defendant left a message on Plaintiff's cell phone that failed to properly identify the caller' s identity and failed to disclose that the communication was from a debt collector. Cmplt. ¶¶ 14, 15.

Plaintiff seeks statutory damages of $1,000. Cmplt. ¶ 17. Plaintiff also seeks to recover costs, reasonable attorney fees, and such further relief that the Court deems appropriate. Cmplt. ¶¶ 18, 19. Plaintiff demands a jury trial.

In October 2011, Defendant filed an answer admitting that Defendant left a message on Plaintiff's cell phone that failed to properly identify the caller's identity and failed to disclose that the communication was from a debt collector. Defendant further admitted that Defendant violated § 1692d(6) and § 1692e(11) of the FDCPA but denied that Defendant violated §1692d, § 1692e, and §1692e(10). Defendant denied Plaintiff was entitled to statutory damages, costs, attorney fees, or any other relief.

Defendant also filed the Motion for Judgment on the Pleadings at issue herein. In the Motion, Defendant admits that leaving a voicemail on Plaintiff's answering machine that failed to identify the caller's identity and status as debt collector constituted a "technical violation" of the FDCPA. Defendant asserts, however, that "[o]ne simple error, which caused no harm to Plaintiff, should not [be] sufficient to grant Plaintiff a windfall of damages." Defendant therefore moves the Court to enter judgment in favor of Plaintiff on liability but to decline to award damages to Plaintiff.

Plaintiff agrees that judgment should be entered in her favor regarding liability. Plaintiff argues, however, that the issue of damages is not ripe and that Plaintiff should be afforded an opportunity to conduct discovery in this case to provide further support of Plaintiff's damages. Plaintiff also disputes Defendant's characterization of the violation as a "technical violation," noting that a survey of cases cited on PACER reveals Defendant has a history and pattern of repeated violations of the FDCPA. Plaintiff attaches as exhibits copies of the complaints filed against Defendant in various federal courts.*fn2

II. JURISDICTION AND VENUE

Plaintiff brought a claim under the FDCPA, and this Court has jurisdiction over this claims pursuant to 28 U.S.C. § 1331. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States"); see also 15 U.S.C. § 1692k(d) ("An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction"). Venue is proper because the events giving rise to the claim occurred in Ursa, Illinois. See 28 U.S.C. § 1391(b) (a civil action where ...


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