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Dasilva v. Law Office of IRA T. Nevel, Inc.

United States District Court, Seventh Circuit

April 25, 2013

MODUPE DASILVA, et al. Plaintiffs,
v.
LAW OFFICE OF IRA T. NEVEL, INC., Defendant.

MEMORANDUM OPINION AND ORDER

RONALD A. GUZM§N, District Judge.

Modupe and Anthony DaSilva filed suit against the Law Office of Ira T. Nevel ("Nevel") alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692g(a), (b), and (d). The DaSilvas allege that on October 7, 2011, they sent a Qualified Written Request ("QWR") to "Citimortgage, Inc., c/o Law Offices of Ira T. Nevel" requesting verification and validation of their mortgage debt. (Third Amended Complaint ("TAC"), Dkt. # 79, § 6.) According to the DaSilvas, despite having received the letter, Defendant did not verify the debt and continued collection activity. ( Id. § 7.) Nevel now moves for summary judgment. For the reasons stated herein, the motion is granted in part and denied in part.

Standard

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Thus, in order to withstand a motion for summary judgment, the nonmoving party must show that a dispute about a genuine issue of material fact exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party may not merely rest upon the allegations or details in his pleading, but instead, must set forth specific facts showing there is a genuine issue for trial. See Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. To succeed on a summary judgment motion, the evidence must be such "that [no] reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

Analysis

15 U.S.C. § 1692g(a)[1]

Section 1692g(a)(1) - (5) provides that:

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing-
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies 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 a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

On February 3, 2010, Nevel filed a foreclosure action against the DaSilvas in the Circuit Court of Will County. (Pls.' LR 56.1(b)(3)(B) Stmt., Dkt. # 92, § 4.) Summons was issued and served upon the DaSilvas in the foreclosure matter on February 10, 2010. ( Id. § 5.)[2] Nevel argues that the notice required under §§ 1692g(a)(1) - (5) ("FDCPA Notice") was attached ...


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