United States District Court, N.D. Illinois, Eastern Division
DONNA M. SLICK, Plaintiff,
PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
THOMAS M. DURKIN, District Judge.
Donna M. Slick is seeking damages from Portfolio Recovery Associates, LLC ("PRA") for various violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. R. 27. Slick's amended complaint contains only one count, but that single count encompasses at least seven different alleged violations of the statute as a result of three different letters that PRA sent to Slick and various phone conversations PRA had with an employee at Slick's bank. Slick has filed a motion for partial summary judgment on liability. R. 73. In response, PRA filed its own motion for summary judgment on all the claims in the single count. R. 96. For the following reasons, Slick's motion is granted, and PRA's motion is denied.
Slick owned a Capital One credit card and ran up a balance into the tens of thousands of dollars. R. 106 ¶¶ 1-2. She claims that the majority of the charges were for "personal, family, and household purchases." R. 90 ¶ 15. To pay off the balance, Slick made payments on the account on September 2, 2003; September 18, 2003, and November 1, 2003. R. 106 ¶ 4. However, the balance was never paid off in full, and Capital One first reported the account as delinquent on December 2, 2003, which means Slick had failed to timely pay her bill. Id. ¶ 24. Slick made additional payments on January 2, 2004; February 18, 2004; March 22, 2004; April 20, 2004; June 5, 2004; June 28, 2004; and a final payment July 28, 2004, id. ¶ 4, though her account remained delinquent as a balance still remained, 90 ¶ 14. Slick's credit report indicates that Capital One "charged-off" Slick's account on December 3, 2004. Id. ¶ 10.
PRA, a company that owns and collects past-due debts, purchased Slick's Capital One account on July 28, 2011. R. 106 ¶ 3. The balance on the account was $19, 403.17. Id. On August 9, 2011, PRA mailed Slick a letter-it's "initial communication, " see 15 U.S.C. 1692g-in an attempt to collect on the account. R. 90 ¶ 13; see R. 1-3. The letter informed Slick that PRA had purchased her account from Capital One and that she owed $19, 403.17. R. 90 ¶ 14; R. 106 ¶ 3. It also stated, "This letter is from a debt collector and is an attempt to collect a debt, " R. 75-1,  and further provided:
NOTICE: If this account is eligible to be reported to the credit reporting agencies by our company, we are required by law to notify you that a negative credit report reflecting on your credit records may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations.
R. 90 ¶ 16. At the time PRA sent the letter, more than 7 years and 180 days had passed since Slick's Capital One account was reported as delinquent on December 2, 2003-7 years and 180 days after December 2, 2003, was June 3, 2011. Id. ¶ 25. June 3, 2011, is an important date because under 15 U.S.C. § 1681c, a credit reporting agency may not list a delinquent account on a credit report more than 7 years and 180 days after certain triggering dates, including the date on which an account is reported as delinquent. Slick alleges that she received PRA's letter on August 16, 2011, R. 27 ¶ 10, though neither party's Local Rule 56.1 statement of material facts provides the exact date. See R. 90; R. 105.
On August 31, 2011, Slick mailed a letter to PRA, in which she disputed that she owed the debt described in PRA's letter dated August 9, 2011. R. 90 ¶ 31; see R. 75-1. She also asked "for a complete breakdown of [the] balance of $19, 403.17." Id. ¶ 34. PRA received the letter two days later on September 2, 2011. R. 90 ¶ 32. The letter was processed and logged into PRA's collection records on the following business day, September 6, 2011. Id. ¶ 36.
Sometime prior to PRA processing the letter,  Slick went to her personal bank, Columbia Bank, and showed Debi Louden, a bank employee, the letter. R. 106 ¶ 33. Slick testified she did this because she "just wanted to be honest" and because she was "applying for a refinance." Id. ¶ 44. On August 30, 2011, Louden placed a call to PRA at 9:00 a.m. Id. ¶ 32. "Sarah" answered the call. Id. ¶ 33. Louden told Sarah that she was calling on behalf of "a mutual customer [who] is really upset because she said that... she only owed them like $900, " even though the stated balance was roughly $19, 000. Id. Sarah told Louden that she could not release account information over the phone and that Slick would need to send a letter requesting a breakdown of the balance. Id.
On September 1, 2011, Louden, with Slick physically present and listening to the call, placed a second call to PRA at approximately 2:49 p.m. and reached James Simmons, a PRA customer service representative. R. 90 ¶ 38; R. 106 ¶ 33. At the beginning of the phone conversation, Slick gave PRA permission to speak with Louden about her account. R. 106 ¶ 35. Simmons then informed Louden that the original balance was $8, 338.66-the rest was the result of accrued interest and late fees-and that Slick could possibly "settle the account" for $9, 700 or through a one-time payment of the original balance. Id. At some point, "Mr. Medina, " Simmons's manager, got on the call to discuss Slick's ability to pay and closing out the account. Id. The parties discussed certain options, and Louden asked for an "arrangement letter" that said "if [Slick] makes [the] payment of $9, 701.59[, ]... that will close out [Slick's] account." Id. Mr. Medina asked if he would receive payment by September 5, 2011, to which Loudin responded that it might take a little longer to make the payment, but she would call back with a specific date. Id. The phone call ended after Mr. Medina said he would fax Louden the letter. Id.
Roughly 15 minutes after Louden placed the second call to PRA, Louden placed a third call to PRA at 3:03 p.m., which was answered by "Mrs. Burton." Id. ¶ 36. No evidence has been set forth, and no contention has been made, that Slick was with Louden at the time or listening to the third call. Louden explained that she had previously spoken to Simmons and Mr. Medina and was awaiting a fax describing the settlement terms. Id. ¶ 37. Mrs. Burton told Louden to hold while she contacted the manager. Id. Without warning, the call ended a moment later. Id.
Louden made a fourth call to PRA at 3:11 p.m. Id. ¶ 38. "Renee" answered the call, and Louden explained that she was still waiting for the fax. Id . ¶ 39. A woman named "Robin" got on the line and told Louden that the fax machines were down. Id. The call ended without warning shortly thereafter. Id.
Louden placed a fifth call to PRA at 3:15 p.m. Id. ¶ 40. Speaking to "Kimberly, " Louden stated that she had spoken to about four people in trying to reach Mr. Medina and was waiting for the settlement letter to be faxed. Id. ¶ 41. Mr. Medina got on the line at some point and informed Louden that he would send the fax later that day by 5:00 p.m. Id. Louden had mistakenly been of the opinion that Mr. Medina was going to immediately fax over the letter after the first call she made that day ended (i.e., the second call overall to PRA). Id. The letter, addressed to Slick and dated September 1, 2011, was eventually faxed to Louden that day. R. 83 at PRA 009. It provided in pertinent part, "This letter confirms your arrangement to make the following payment(s) to settle this account. Payment in the amount of $9, 701.59 is due by 9/7/2011." Id.
The next day, on September 2, 2011, Louden placed another call to PRA at 2:50 p.m. Id. ¶ 42. This was her sixth (and final) call to PRA. Louden told "Ms. Patner, " the PRA representative who answered the call, that she had received the faxed settlement letter for Slick but that there was a mistake on the fax. Id. ¶ 43. Ms. Patner asked Louden if Slick was on the line, Louden said, "No, she is not, " and then Ms. Patner asked Louden what the error was. Id. Louden said that the faxed letter required Slick to pay the full $9, 701.59 amount by Monday, September 7, 2011, which Slick could not do because that was the Monday of Labor Day weekend and the bank was closed. Id. Louden further stated that Mr. Medina had informed her that Slick only needed to make payment by the end of the month. Id. Ms. Patner attempted to transfer Louden to the people whose names appeared on the fax- Jarret Wynter and Joanna Stenson-but they were unavailable. Id. The call ended after Ms. Patner told Louden that she would have her manager send Louden a fax with the correct date of September 30, 2011, so that Louden would "have that in black and white." Id.
On September 7, 2011, PRA sent another letter to Slick via Louden. R. 90 ¶ 46. The letter included the following relevant information:
Dear DONNA M SLICK:
Your account was purchased on 7/28/2011 from CAPITAL ONE BANK, N.A. This letter confirms your arrangement to make the following payment(s) to settle this account.
Payment in the amount of $9, 701.59 is due by 9/30/2011
Should you miss any of the payments described herein, this payment plan may become null and void.
If you complete this payment plan and our company is reporting our company's trade line for this account to the three major credit reporting agencies, ...