The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:
Wednesday, 22 February, 2012 02:05:36 PM
Clerk, U.S. District Court, ILCD
This matter comes before the Court on Plaintiff John Tallman's Motion for Leave to Amend the Complaint (d/e 14) (Motion 14); Defendant Freedman Anselmo Lindberg, LLC's (Freedman) Cross-Motion for Sanctions (d/e 15) (Motion 15); Tallman's Cross-Motion for Sanctions Against Defendant's Counsel (d/e 16) (Motion 16); Tallman's Second Motion for Leave to Amend the Complaint (d/e 17) (Motion 17); and Tallman's Motion to Strike (d/e 20) (Motion 20). For the reasons set forth below, Motion 17 is ALLOWED and the other Motions are DENIED.
On July 8, 2011, Tallman filed the Complaint (d/e 1) in this action. Tallman alleged claims under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., and state law. The Complaint alleges Freedman is a debt collection agency that collected two debts that Tallman owed to two different creditors. Freedman is a law firm. A law firm can be a debt collection agency under the FDCPA. 15 U.S.C. § 1692a(6); see e.g., Buckley v. Bass & Associates, 249 F.3d 678, 679 (7th Cir. 2001). The Complaint alleges that Freedman had been contacting Tallman to collect the debts. Tallman had been paying regularly on one of the debts that had been reduced to judgment pursuant to the terms of court payment order. The Complaint alleges that Freedman threatened to take more money from Tallman than the court ordered monthly payment if his financial situation had improved.
On May 27, 2011, Freedman sent Tallman a letter regarding the second of the two Debts. The Complaint alleges that the letter failed to include the required notice that if Tallman requested proof of the debt within 30 days, Freedman would suspend efforts to collect the debt until proof is provided. Freedman alleged that the letter improperly contained an electronic signature rather than an actual signature.
The Complaint alleges that Freedman would not allow Tallman to determine the order in which the Debts would be paid off and threatened to sue Tallman if Tallman failed to pay the higher debt first.
Count I alleged a claim under the FDCPA. Tallman alleged that Freedman committed certain specific violations of the FDCPA. Tallman alleged that Freedman: (1) called before 8:00 a.m. and after 9:00 p.m.; (2) threatened Tallman with violence against his person; (3) used profane and abusive language; (4) misrepresented the character, amount and legal status of the Debts; (5) misled Tallman into believing the communication was from a law firm or an attorney; (6) failed to inform Tallman that the communication was an attempt to collect a debt; (7) attempted to collect an amount not authorized by the agreement creating the Debts; (8) caused charges to be made to Tallman; (9) did not apply payments to multiple debts in the order specified by Tallman; (10) failed to send Tallman a validation notice stating the amount of the Debt; (11) falsely designed, furnished and compiled a form that created a belief that a person or agency other than Freedman was collecting the Debt; (12) threatened to take legal action without actually intending to do so; and (13) used false and deceptive means to collect a debt (the FDCPA Allegations).
The Complaint also alleged supplemental counts for violation of the Illinois Collection Agency Act, 225 ILCS 425/1 et seq. (Count II); the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 5/505 et seq. (Count III); intentional infliction of emotional distress (Count IV); and invasion of privacy (Count V). Count II alleged that Freedman: (1) used profane, obscene, and abusive language; (2) engaged in conduct intended to cause and did cause mental and physical illness; (3) used communications that simulated legal or judicial process or which gave the appearance of being authorized, issued or approved by a governmental agency or official or by an attorney at law when it was not; (4) misrepresented the amount of the claim or debt alleged to be owed; (5) represented that an existing debt may be increased by the addition of attorney's fees, investigation fees, or any other fees or charges when such fees or charges may not legally be added to the existing debt; (6) collected or attempted to collect any interest or other charges or fees in excess of the actual debt or claim; and (7) engaged in dishonorable, unethical, or unprofessional conduct likely to deceive, defraud, or harm the public (the Illinois Allegations).
The Court entered a Scheduling Order on October 20, 2011 (d/e 13). The Scheduling Order set December 16, 2011, as the deadline for amending pleadings. On October 26, 2011, Freedman served written discovery on Tallman. Freedman propounded contention interrogatories asking Tallman to identify each fact and/or occurrence to support each of the FDCPA Allegations and each of the Illinois Allegations. Motion 15, at 2, and attached Exhibit E, Plaintiff's Response to Defendant's First Set of Interrogatories (Plaintiff's Response to Interrogatories).
On December 20, 2011, Tallman filed Motion 14 for leave to amend the Complaint. The proposed Amended Complaint attached to Motion 14 now alleged that the May 27, 2011, letter included include the required notice that if Tallman requested proof of the debt within 30 days, Freedman would suspend efforts to collect the debt until proof is provided. The proposed Amended Complaint also deleted all of the FDCPA Allegations except the allegations that Freedman (1) threatened to take legal action without actually intending to do so, and (2) employed false and deceptive means when attempting to collect a debt.*fn1 The proposed Amended Complaint deleted all the Illinois Allegations except the last allegation that Freedman engaged in dishonorable, unethical, or unprofessional conduct likely to deceive, defraud, or harm the public (The deleted FDCPA Allegations and Illinois Allegations are collectively referred to as the Deleted Allegations).
The Amended Complaint added an allegation to Count I that Freedman used unfair or unconscionable means to attempt to collect a debt and overshadowed the consumer's right to dispute the debt. Finally, the proposed Amended ...