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Edward Day v. Etan General

March 30, 2012


The opinion of the court was delivered by: Judge Joan H. Lefkow


Plaintiff Edward Day filed suit against Credit Protection Association, L.P. ("CPA"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA" or the "Act"), 15 U.S.C. § 1692, et seq.*fn1 Before the court are the parties' cross motions for summary judgment and CPA's motion to strike. For the following reasons, Day's motion for summary judgment [#37] will be denied, CPA's motion for summary judgment [#40] will be granted, and CPA's motion to strike [#48] will granted.*fn2


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). To determine whether any genuine issue of fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Fed. R. Civ. P. 56(c) & advisory committee's notes. The party seeking summary judgment bears the initial burden of proving that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In response, the nonmoving party cannot rest on mere pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue at trial. Id. at 324; Insolia v. Phillip Morris Inc., 216 F.3d 596, 598--99 (7th Cir. 2000). Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must construe all facts in a light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).


Edward Day is an adult who resides in Arlington Heights, Illinois. Sometime prior to August 2008, he incurred a debt to Comcast for personal or household use of Comcast's cable, internet, or telephone service. Day's account with Comcast fell into arrears and Comcast disconnected his service on August 28, 2008.

CPA is a limited partnership in Dallas, Texas that is licensed by the State of Illinois as a collection agency. It regularly attempts to collect consumer debts using the mail and phone and has forty employees who attempt to collect debts by phone. CPA oversees the collection of approximately 700,000 active debts and sends approximately 100,000 letters per day.

CPA obtained Day's unpaid debt to Comcast on October 5 or 6, 2008. At that time, the debt was in default. On October 6, 2008, CPA sent Day a collection letter. (Pl.'s Ex. 5.) The letter stated that Day's account with Comcast was past due in the amount of $1,492.85 and that CPA had been retained by Comcast to collect the debt. The reverse side of the letter contained the following notice:

The Fair Debt Collection Practices Act requires that we, as the debt collector, inform you that unless you, within thirty days after receipt of this initial notice, dispute the validity of the debt, or any portion thereof, the debt will be assumed valid by the debt collector. If you notify the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of judgment against you and mail it to you. If requested in writing within thirty days, the debt collector will also provide you with the name and address of the original creditor, if different from the current creditor. (Pl.'s Ex. 5 at 2.) Day received the letter within two to five days of the date it was mailed. When he read the letter, Day understood that he had thirty days to dispute the validity of his alleged debt to Comcast.

On October 24, 2008, CPA sent Day a second collection letter. The first paragraph stated:

Comcast has informed us that no payment or arrangement was made to settle your overdue account in the amount of $1,492.85, which includes 5 non-returned equipment [sic] valued at $855.00. Be advised that the thirty (30) day validation period discussed in our first letter concerning the validity of your debt will pass within the next three (3) weeks. If you do not seek validation, we will assume that your debt is valid at the end of that period. If this account is not settled, your name and account number will be reported to credit bureaus throughout the country. (Pl.'s Ex. 6 at 1 (emphasis added).) Day was not confused by the language of CPA's second letter.

Day disputed the debt with the credit reporting agencies after he received CPA's second notice and reviewed his credit report.


I. The ...

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