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Aitken v. Debt Management Partners, LLC

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

April 17, 2015

JAY AITKEN, Plaintiff,
v.
DEBT MANAGEMENT PARTNERS, LLC, et al., Defendants.

ORDER

JONATHAN E. HAWLEY, Magistrate Judge.

On February 9, 2015, this matter came before the Court for a bench trial[1] on Plaintiff, Jay Aitken's (Aitken) claims against Defendants Debt Management Partners, LLC (DMP) and Audubon Financial Bureau (Audubon).[2] Plaintiff sued Audubon and DMP, alleging violations of the Fair Debt Collection Practices Act (FDCPA), the Illinois Collection Agency Act (ICAA), and the Illinois Consumer Fraud Act (ICFA). Following cross-motions for summary judgment, this Court found that Defendants violated the FDCPA in a voice mail that Audubon left for Plaintiff on August 31, 2012. After summary judgment, the following issues remained for trial: (1) whether an employee of Audubon identifying herself as "Monica" falsely claimed that Plaintiff could be jailed or sued during a phone call on August 3, 2012; (2) whether Audubon violated the FDCPA and the ICFA by disclosing Plaintiff's debt to his mother, Judy Aitken; and (3) whether the Plaintiff was entitled to any damages. After the bench trial, this Court ordered the parties to submit post-trial briefs with proposed findings of fact and conclusions of law. The Court having considered the evidence and argument presented at the bench trial, as well as the post-trial briefs of the parties, this matter is now ripe for decision. Parts I and II of this Order address the questions of fact and law relevant to the question of liability, and Part III of this Order address the questions of fact and law relevant to damages.

I

A

The Court finds the following facts relevant to liability.

In January 2010, Plaintiff borrowed $2, 000 from a payday loan business called the Cash Store. Plaintiff took out a number of high-interest loans around this time, and sometimes borrowed from three different payday loan stores at once, including the Cash Store. Plaintiff stopped repaying the Cash Store loan in late 2010 or early 2011. The Cash Store and a collection company called the Bennett Law Firm began calling Plaintiff about his delinquent loan, demanding repayment in full. DMP then purchased Plaintiff's delinquent Cash Store loan, and in July 2012, placed it with Audubon for collection.

B

A critical fact in dispute at trial is exactly what transpired during an August 3, 2012 telephone call between Aitken and Audubon.

At trial, Plaintiff introduced into evidence an "account history log" from Audubon, which is a computerized record that is supposed to document everything Audubon did to collect Plaintiff's Cash Store debt. (Plaintiff's Exhibit #2; D. 68-3). This log has an entry for August 3, 2012, which notes that Audubon employee, Amanda Mottorn, "contacted Debtor." That same entry then notes, "Other, "with what appears to be a notation by a Manager named "Doug, " which indicated that the Plaintiff agreed to settle the account for four payments of $510, subject to his discussing the arrangement with his wife. The Debtor would contact Audubon with the "results" the next Monday. Id . "Doug" referenced in the log was Doug Borawski, an Audubon manager.

Contrary to what the log indicates, the Plaintiff testified that the following occurred on the August 3, 2012 telephone call with Audubon. According to the Plaintiff, he talked with two individuals who identified themselves as "Monica" and "Frank Salvasio." Aitken talked to Monica first, who stated, "You willingly defrauded the Cash Store. That's a Class 1 felony. People go to jail for that." Monica also asked him for his home and employment addresses. When Aitken asked her why she needed these addresses, she responded, "That will be the place where we can kick off the paperwork to have you served." Subsequently, Monica transferred Aitken to Frank Salvasio. Frank Salvasio, identified as an attorney, started the conversation by asking Aitken, "Did Monica make you aware of how serious this crime is?" Aitken then discussed payment arrangements with Mr. Salvasio.

The Court finds by a preponderance of the evidence that Aitken's version of what transpired during the August 3, 2012 telephone call is the more likely version of what actually happened. First, it is undisputed that neither a "Monica" nor "Frank Salvasio" worked for Audubon during the relevant time period. Nevertheless, it is also undisputed that on August 31, 2012, Amanda Mottorn, using the name "Monica, " left the following voice message for Aitken stating as follows:

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 on 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.

This voice message corroborates a number of facts consistent with Aitken's version of events. The message confirms that Amanda Mottorn, using the fictitious name "Monica, " previously spoke with Aitken. The only date prior to the voice message which the log shows someone made actual contact with Aitken was on August 3, 2012. Mottorn claims to be calling from the "A and B Fraud Division, " a representation which is consistent with Aitken's claim's regarding the August 3, 2012 telephone call referencing criminal conduct. Although Mottorn indicated in her deposition that she did not speak to Aitken at all on August 3, 2012, and implied that Borawski alone must have spoken with Aitken while logged into the computer under her name, this cannot be true, for the August 31 voice message is clear that she spoke to Aitken previously. And, as already noted, August 3 was the only date prior to the August 31 voice message when the log indicates anyone spoke to Aitken personally.

Likewise, the log itself at least in part corroborates Aitken's version of events to the extent that Aitken claimed to speak to both a man and a woman during the August 3 telephone call. The log indicates Aitken indeed spoke to a man and woman during that call, Borawski and Mottorn, and, given the fact that Mottorn indisputably used the fictitious name "Monica" during the August 31 voice message, one can reasonably infer that she used the same fictitious name during the August 3 telephone call, along with Borawski using the fictitious name of Frank Silvasio.

The Court notes that if the only evidence supporting Aitken's version of what transpired during the August 3 telephone was Aitken's testimony alone, then Aitken would have failed to meet his burden, given Aitken's lack of credibility, as discussed, infra. However, the other facts noted which corroborate portions of Aitken's testimony are enough to tip the balance in his favor on this question of fact, although just barely.

C

The other telephone call at issue is a telephone call made by Aitken's mother, Judy Aitken, to Audubon on November 13, 2012. Audubon's account history reflects that Audubon received a call from telephone number (269) 471-3026 on November 13, 2012 at 4:08 p.m. This is the number of ASAP Ministries, where Judy Aikten worked at the time. The account history indicates that someone named Brandi Hill took the call and made the notation "NON RPC/No longer works there." Audubon's representative, Randy Zaffran, testified that this notation means that someone other than the debtor called from a place of employment and that the debtor no longer works there.

Judy Aitken testified that she made this call to Audubon in response to a note she received from co-workers which indicated calls had come in for her at her place of employment. When she called Audubon, she reached a woman who identified herself, although Judy Aitken could not remember the name the woman used. According to Judy Aitken, after the Audubon employee asked if she was related to the Plaintiff and if she knew where he was, Judy Aitken asked, "What is the problem?" (Tr. at p. 50). The employee then responded, "He owes a debt and he needs to pay the debt." Id.

The Court finds by a preponderance of evidence that, as testified to by Judy Aitken, the Audubon employee stated to her that the Plaintiff "owes a debt." First, the Court finds Judy Aitken to be a credible witness. She was clear in her testimony, her demeanor supported the credibility of her testimony, and her testimony was internally consistent. The Defendant's cross-examination of her did nothing to effectively call her credibility into question. Second, Audubon's own account history corroborates that Judy Aitken made a call to Audubon. The fact that Judy Aitken called Audubon and had the telephone number to do so corroborates her version of events. Likewise, the account history corroborates that a woman from Audubon spoke with Judy Aitken as she testified. Finally, although the account history does not state that Audubon disclosed that the Plaintiff owed a debt to Judy Aitken, it is undisputed that the account history is not a verbatim account of every word said during a phone call.

II

Given the Court's findings of what transpired during the two calls in question, the Court will now address whether these facts amount to a violation of the ...


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