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Phan v. Gartner Law Offices, Inc.

United States District Court, N.D. Illinois, Eastern Division

April 2, 2014

THONE PHAN, Plaintiff,
v.
GARTNER LAW OFFICES, INC., Defendant.

MEMORANDUM OPINION AND ORDER

ARLANDER KEYS, Magistrate Judge.

Thone Phan ("Ms. Phan")alleges that Gartner Law Offices, Inc. ("Gartner Law") violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e and f ("FDCPA"), when it threatened to garnish her wages in an email dated January 9, 2012. Ms. Phan requests that this Court enter summary judgment against Gartner Law for violations of the FDCPA under Federal Rule of Civil Procedure 56. [Dkt. #48]. In her motion, Ms. Phan seeks $1, 000 in statutory damages; $10, 000 in actual damages suffered as a result of Defendant's violations; and Plaintiff's reasonable attorney fees and costs incurred. For the reasons stated below, Ms. Phan's motion is denied.

Facts

On January 9, 2012, an associate attorney at Gartner Law sent the following e-mail directly to Ms. Phan:

This e-mail serves as our final attempt to collect the debt owed by you to Mr. Ratliff in the total amount of $14, 158.30 ($13, 150.00 debt plus $1008.30 in costs). Please remit certified funds made payable to Elster Ratliff and Gartner Law Offices, Inc. to our office no later than Friday, January 13, 2012 at 5:00 p.m. or we will be forced to garnish your wages through Mayer Brown.

("the E-mail"). Motion at Ex. A. Mayer Brown was Ms. Phan's employer at the time.

In her motion for summary judgment, Ms. Phan argues that this E-mail is a violation of the FDCPA, because "at the time Defendant sent the E-mail, Plaintiff was in an active Chapter 13 Bankruptcy and was protected [from wage garnishment] by the Bankruptcy Stay." Motion at ¶ 3. Gartner Law denies that Plaintiff was in Chapter 13 Bankruptcy at the time the E-mail was sent in January, 2012. Response at p. 2, ¶ 3. Instead, Gartner Law states that, "Plaintiff filed for Chapter 13 Bankruptcy on August 27, 2012, after Gartner [Law] filed an action to garnish the wages of Plaintiff, and wages were garnished by Plaintiff's employer, Mayer Brown, LLP." Id. at pp. 2-3, ¶ 3; Id. at Ex. B.

In her motion for summary judgment, Ms. Phan lists seven paragraphs of "uncontroverted relevant facts." Mot. at pp. 2-3. However, left out of Ms. Phan's fact section, and found in other pleadings, answers to interrogatories, and admissions in this case, are relevant facts to this motion, including the history behind the parties mentioned in the above E-Mail: Ms. Phan, Mr. Ratliff, and Gartner Law. Beginning in 2004, Ms. Phan borrowed money from Elster Ratliff. When she was unable to repay Mr. Ratliff and other creditors, Ms. Phan sought bankruptcy protection in 2008. Mot. at Ex. B. According to the Bankruptcy Court's docket provided to this Court, Ms. Phan originally filed a voluntary petition for Chapter 13 Bankruptcy on August 23, 2008. Id. However, she filed a voluntary conversion from Chapter 13 to Chapter 7 on May 16, 2009. Id.

Ms. Phan also neglects to mention in her motion for summary judgment that she did not identify Mr. Ratliff as a creditor in her bankruptcy filings. Nonetheless, Mr. Ratliff discovered the bankruptcy proceedings and filed an adversary complaint, arguing that Ms. Phan's debt to him was not dischargeable, because it was obtained by false pretenses, false representations, or actual fraud. Answer to the Complaint, p. 6; [dkt. #22].

On November 23, 2011, the bankruptcy court found that Ms. Phan borrowed from Mr. Ratliff never intending to repay him, and therefore, procured the debt by "false pretenses, false representation, or actual fraud." Response at Ex. C, p. 2. In that ruling, the bankruptcy court concluded that Ms. Phan's debt to Mr. Ratliff was not dischargeable, and stated that judgment would be entered against her and in favor of Mr. Ratliff for "the entire amount owed by the debtor [Ms. Phan] to the plaintiff [Mr. Ratliff]." Id at p. 2 and p. 5; Mot. at Ex. E, ¶¶1-2. Ms. Phan was represented by an attorney at that time. Response at p. 2, ¶2. On December 13, 2011, the Bankruptcy Court entered an order granting Mr. Ratliff costs in the amount of $1, 008. 30. Response at Ex. D.

Additionally, Ms. Phan failed to mention in her motion that Gartner Law and her bankruptcy counsel "were corresponding from November 2011 through January 2012 regarding payment and payment plans related to the debt." Answer, Affirmative Defense D, p. 6. "Gartner [Law] had several conversations with Plaintiff's attorney in attempt to collect the amount owed, but Plaintiff made no payments on the Judgment. When Defendant was informed by counsel for Plaintiff that he no longer represented Plaintiff, Gartner [Law] sent the E-mail to Plaintiff." Id. Shortly after the E-mail was sent, Ms. Phan filed the complaint in this action on February 21, 2012. [dkt. #1].

In April, 2012, after Ms. Phan attempted to argue that there was no judgment entered against her in the amount specified in the E-mail, the Bankruptcy Court clarified its November 2011 order, again entering judgment against Ms. Phan and in favor of Mr. Ratliff in the amount of $13, 150.00. Response at Ex. F, p. 7. When added to the December 13, 2011, order granting costs in the amount of $1, 008.30, which was left undisturbed in the motion to clarify ruling, the total amount owed by Ms. Phan was $14, 158.30. Response at Ex. D and Ex. F.

On July 16, 2012, Gartner Law issued a Wage Deduction Summons, Interrogatories, Notice and Affidavit to Ms. Phan's employer, Mayer Brown LLP. Response at Ex. F. On July 19, 2012, Mayer Brown LLP was served with said summons and began withholding a portion of Ms. Phan's wages. Id. at Ex. G. Ms. Phan then filed for Chapter 13 Bankruptcy on August 27, 2012. Response at Ex. B. The collection actions against Ms. Phan were ...


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