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Janetos v. Fulton Friedman & Gullace, LLP

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

April 13, 2015

MARY T. JANETOS AND ERIK KING, ON BEHALF OF A CLASS, PAMELA FUJIOKA, AND IGNACIO BERNAVE, Plaintiffs,
v.
FULTON FRIEDMAN & GULLACE, LLP AND ASSET ACCEPTANCE, LLC, Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS M. DURKIN, District Judge.

Mary Janetos and Erik King, individually and on behalf of a class, and Pamela Fujioka and Ignacio Bernave, individually, have filed Fair Debt Collections Practices Act ("FDCPA") claims against defendants Fulton Friedman & Gullace, LLP ("FF&G") and Asset Acceptance, LLC ("Asset"). In 2011, FF&G sent debt-collection letters to the plaintiffs on behalf of Asset, the then-current owner of plaintiffs' purported debts. FF&G's form letter stated that the debtor's "account has been transferred from [Asset] to [FF&G]." See, e.g., R. 125 ¶ 20. The plaintiffs allege that the defendants violated 15 U.S.C. §§ 1692e, 1692e(10), and 1692g(a)(2) because the letter is confusing with respect to which of the two entities-Asset or FF&G - is the creditor to whom the plaintiffs owed their debts.[1] The parties have filed cross-motions for summary judgment.[2] For the following reasons, the Court grants the defendants' motion, and denies the plaintiffs' motion.

BACKGROUND

I. Factual Background

In 2008 and 2009, Asset filed separate lawsuits against each of the plaintiffs in the Circuit Court of Cook County. R. 125 ¶¶ 13, 23, 31, 39. In each lawsuit, Asset claimed that it had purchased a delinquent debt owed by the plaintiff. Id. Janetos won her lawsuit. Id. at ¶ 16. Asset voluntarily dismissed its lawsuit against Bernave without prejudice. Id. at ¶ 42. And it obtained ex-parte default judgments against King, on August 14, 2008, and Fujioka, on January 4, 2010. Id. at ¶¶ 26, 34.

At some point, Asset retained FF&G to collect debts on its behalf. Id. at ¶ 53. On or about December 12, 2011, FF&G sent form collection letters to Janetos's and Bernave's counsel, and to King and Fujioka directly. Id. at ¶¶ 19, 27, 35, 43. Above the salutation, the letters provided information about the purported debt:

[3]

See id. at ¶¶ 21, 29, 37, 45. The letters that FF&G sent to Janetos's and Bernave's attorneys stated in relevant part:

Please be advised that the referenced account has been transferred from Asset Acceptance, LLC to Fulton, Friedman & Gullace, LLP.... If your client has already entered into a payment plan or settlement arrangement with Asset Acceptance, LLC, please note that we are committed to honoring the same.

See id. at ¶¶ 20, 44. The letters that FF&G sent directly to King and Fujioka contained similar language:

Please be advised that your above referenced account has been transferred from Asset Acceptance, LLC to Fulton, Friedman & Gullace, LLP. If you have already entered into a payment plan or settlement arrangement with Asset Acceptance, LLC, please note that we are committed to honoring the same.

Id. at ¶¶ 28, 36. The letters listed a return address for FF&G in Warren, Michigan below the line "***Detach Lower Portion and Return with Payment***." Id. at ¶ 49.

II. Procedural Background

On March 4, 2013, the Court denied the defendants' motion for judgment on the pleadings. Janetos, 2013 WL 791325, at *9. The Court considered it a "very close call" whether the plaintiffs had stated a claim for relief:

The Court is skeptical that FF&G's letters would confuse an unsophisticated consumer, let alone in any material way. The very first line of the header states, in King's case, "Re: Asset Acceptance, LLC Assignee of AMERISTAR, " and in Fujioka's case, "Re: Asset Acceptance, LLC Assignee of CAPITAL ONE BANK, NA." Those references appear to identify Asset Acceptance as the current creditor and owner of the debt. Moreover, although Plaintiffs take issue with FF&G's subsequent statement in the letter that the account "has been transferred" from Asset Acceptance to FF&G, the FDCPA's definition of "creditor" uses the word "transfer" in the same way that FF&G apparently intended it. See 15 U.S.C. § 803(4) ("The term creditor' means any person who offers or extends credit creating a debt or to whom a debt is owned, but such term does not include any person to the extent he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt from another.") (emphasis added). The Court is also uncertain whether it would make any difference to the unsophisticated consumer's decision process if FF&G had actually purchased the debts from Asset Acceptance as opposed to merely acting as Asset Acceptance's collection agent. That appears to be an internal issue largely between Asset Acceptance and FF&G.

Janetos, 2013 WL 791325, at *7. Despite these reservations, the Court concluded that the plaintiffs had "shown just enough potential for confusion in order to move past the pleadings and have the opportunity to develop evidence to support their claims." Id. at *8. The letters do not expressly identify which party owns the debt, and presumably an "unsophisticated consumer" would not read the letter with the statutory definition of "creditor" in mind. Id. The Court also rejected the defendants' argument that the plaintiffs' prior interactions with Asset clarified its role as creditor. Id. The fact that Asset claimed to have owned the debt in the past did not rule out the possibility that it later sold the debt to FF&G. Id.

During discovery, the plaintiffs elected not to obtain survey evidence or expert testimony to support their claim that the defendants' letters would confuse an "unsophisticated consumer." In lieu of such evidence, the plaintiffs served document requests and interrogatories seeking information about whether the defendants received inquiries from debtors "as to whom the current creditor or owner of the debt is." R. 100-1 at 4-5; see also R. 100-2 at 2; R. 100-3 at 2. The defendants objected to these discovery requests as, among other things, unduly burdensome. R. 107 at 12-16 (Trans. of Proceedings, dated May 28, 2013). On May 28, 2013, the Court ruled that ...


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