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Aitken v. Debt Management Partners, LLC

United States District Court, C.D. Illinois, Peoria Division

October 28, 2014

JAY AITKEN, Plaintiff,
v.
DEBT MANAGEMENT PARTNERS, LLC and AUDUBON FINANCIAL BUREAU, Defendants.

OPINION

JONATHAN E. HAWLEY, Magistrate Judge.

Now before the Court is the Plaintiff's Motion for Summary Judgment on Liability (Doc. 47) and the Defendants' Motion for Summary Judgment on Actual Damages (Doc. 46). The Motions are fully briefed, and for the reasons set forth below, the Defendants' Motion for Summary Judgment is DENIED and the Plaintiff's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.

I

The Plaintiff, Jay Aitken, borrowed $2, 000 from the Cash Store, a "payday" loan purveyor in East Peoria, Illinois. Defendant Debt Management Partners, LLC (DMP) is a debt collector, particularly, it purchases delinquent credit accounts and places the accounts with collection agencies to collect on its behalf. Defendant Audubon Financial Bureau (Audubon) is also a debt collector. In particular, it is in the business of collecting consumer debts originally owed to others. From June 2011 through August 2011, the Plaintiff received automated phone calls at his home from the Cash Store's headquarters regarding payment of his payday loan. Then, in early 2012 through May or June 2012, the Plaintiff received phone calls at his home from the Bennett Law Firm regarding full repayment of his payday loan. In July 2012, the Plaintiff's Cash Store debt was placed with Audubon to collect. DMP appointed Audubon as its collection agent for the Collections of Consumer Charged-Off Accounts. Audubon's policy manual instructs its collectors in the event the debtor refuses or avoids the collectors to contact the debtor's 1) parents; 2) grandparents, aunts, uncles, and cousins; 3) neighbors; and 4) place of employment.

Also in July 2012, the Plaintiff received a phone call from a DMP employee who agreed to let him make a series of installment payments on his payday loan. However, though the Plaintiff initially believed that DMP would allow payment on the debt in installments, he was not permitted to do so and was subsequently told he could not pay in installments when he attempted to make the first installment payment. Audubon's account notes show that someone at Audubon had a conversation with the Plaintiff on August 3, 2012.

The Plaintiff testified during his deposition that he received a call from someone who identified herself as "Monica" on August 3, 2012 who accused him of having "willingly defrauded the Cash Store of money, " that doing so was "considered a Class I felony, " and that "[p]eople go to jail for that." He testified that Monica also asked him for his current address and place of employment because either place would be an appropriate place to "serve" him. The Plaintiff also testified that during the August 3rd call he was transferred to a man who identified himself as Frank Salvasio, who was further identified as an in-house attorney. The Plaintiff said that Salvasio offered him an opportunity to pay the Cash Store debt in monthly installments and that the offer should be accepted because "if we face you in court in Peoria you will pay 10 times that amount in attorney fees and such." The Plaintiff says that following the August 3rd phone call, he became very fearful he would face arrest because of the debt and would not be able to post bail.

The Defendants counter that there is no evidence in the record to corroborate the Plaintiff's claims that he spoke with "Monica" and Frank Salvasio on August 3, 2012. The Defendants point to Audubon bill collector Amanda Mottron's deposition testimony during which she denied that she ever spoke to the Plaintiff by phone on August 3rd, and the Defendants cite to Audubon's call log which indicates that the Plaintiff spoke to a man named Doug who noted, among other things, "good convo... feel strong about resolution."

On August 6, 2012, the Plaintiff received a voice message that referenced a phone number belonging to Audubon regarding his Cash Store debt. The message stated:

Hi, this message is for Jay Aitken. My name is Monica. I'm calling in regards to what we had spoken to you about on Friday. Please give our office a call immediately today at 1-888-896-2115, extension 111. Thank you.

The Plaintiff received another voice message on August 31, 2012 from the same phone number that left him the voice message on August 6, 2012. That message stated:

Hi. This message is for Jay Aitken. My name is Monica. I'm with the A and B Fraud Division. Jay, um, I did speak with you a couple of weeks ago. Um, you stated in a federally recorded line you wanted to take care of this matter. Obviously you had no intentions taking care of this matter, because we have not spoken with you since. I don't know if you felt that just because we dropped the judgment that you'd be OK, and you wouldn't have to go to court on the account. Um, as of today, if there is not a payment in this office, we will be sending you to court. You will be served at your homestead. If you can make a payment today, please give our office a call at 1-888-506-1740, extension 111.

In August or September 2012, the Plaintiff contacted an attorney, Patrick Chambers, about the Defendants' phone calls and specifically about whether Attorney Chambers could assist him in posting bail. Attorney Chambers told the Plaintiff not to worry about the Defendants' collection efforts because it was unlikely that they would file a lawsuit against him. They spoke for about five minutes total. Nevertheless, the Plaintiff did save money by clipping coupons and trying to be a bit more frugal in case he was arrested and needed to post bail. He also tried to keep $1, 000 in his checking account which could be used to post bail, and he set up an arrangement with his father to help him post bail in the event the Plaintiff was jailed. In November 2012, the Plaintiff disconnected his phone because he was worried about the Defendants' phone calls. He also had a conversation with his mail carrier, Brian Robinson, expressing his concern that someone might be looking for him. The Plaintiff attempted to keep a low profile by maintaining a post office box and picking up his mail after hours, by taking the numbers off of his house, and by asking Robinson not to disclose to anyone where the Plaintiff lived. The Plaintiff did not seek any medical treatment, psychiatric treatment, or professional counseling regarding the Defendants' phone calls. He did talk to his father, who had a degree in counseling, about his intense anxiety at being jailed.

On December 14, 2012, the Plaintiff filed his Complaint against DMP and Audubon Financial Group, LLC pursuing four counts against the Defendants including: 1) a violation of the Fair Debt Collection Practices Act (FDCPA), Section 1692e, 2(A), (4), (5), (7), and (10) and Section 1692c; 2) a violation of the Illinois Collection Agency Act (ICAA); 3) invasion of privacy; and 4) a violation of the Illinois Consumer Fraud Act (ICFA). The Plaintiff was granted leave to amend the Complaint on February 25, 2013 to add a defendant, remove Count III (invasion of privacy), and add additional allegations in support of the remaining counts. On April 18, 2013, the Plaintiff filed his Second Amended Complaint naming as Defendants Audubon, DMP, and Fanelli and Associates, LLC, and pursing one count for violation of the FDCPA, one count for violation of the ICAA, and one count for violation of the ICFA. The crux of the Plaintiff's Second Amended Complaint is that the Defendants' phone calls to the Plaintiff and to his mother in an attempt to collect the Cash Store debt were in violation of the FDCPA, ICAA, and ICFA. On June 14, 2013, the Plaintiff filed a Notice of Dismissal with Prejudice as to the defendant Fanelli and Associates, LLC due to settlement with that defendant.

As of April 18, 2013, the date on which the Plaintiff filed his Second Amended Complaint, neither DMP nor Audubon had filed a suit against him. As of May 14, 2013, the date on which the Plaintiff filed his Motion for Summary Judgment, DMP and Audubon still had not filed a suit against him.

II

"The court shall grant summary judgment 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." FRCP 56(a). A movant may show the absence of material fact by citing to admissible evidence in the record or by showing that the nonmovant "cannot produce admissible evidence to support the fact." FRCP 56(c)(1)(A), (B). The party opposing summary judgment must not merely rest upon the allegations of his complaint but must instead also point to admissible evidence in the record to show that a material fact is genuinely disputed. Id; Anderson v Liberty Lobby, Inc. , 477 U.S. 242, 257 (1986) (explaining that the plaintiff must "present affirmative evidence in order to defeat a properly supported motion for summary judgment").

At the summary judgment stage, evidence is viewed in the light most favorable to the nonmovant, with material factual disputes resolved in the nonmovant's favor. Id at 248. There is a genuine dispute of material fact only where there is sufficient evidence favoring the nonmoving party that would permit a jury to return a verdict in the nonmoving party's favor. Brummet v Sinclair Broadcast Group, Inc. , 414 F.3d 686, 692 (7th Cir 2005).

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