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Conway v. Done Rite Recovery Services, Inc.

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

November 17, 2015

MELVIN CONWAY, Plaintiff,
v.
DONE RITE RECOVERY SERVICES, INC., and CREDIT ACCEPTANCE CORP., Defendants.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge

         Before the Court is Defendants' motion to enforce settlement agreement [69]. For the reasons that follow, the Court grants in part Defendants' motion to enforce settlement agreement [69]. Plaintiff is ordered to comply with the terms of the formal settlement agreement [69-3] that memorialize the settlement agreement created by the parties' emails on August 14, 2015. However, the Court declines to enforce the terms of the formal settlement agreement that were not agreed to in the August 14, 2015 email correspondence. Plaintiff's other pending motions [57], [76], and [78] are stricken as moot. The case is dismissed with prejudice. The Court will enter a final judgment and close the case.

         I. Background

         Plaintiff Melvin Conway, representing himself pro se in this action, filed a complaint against Defendants Done Rite Recovery Services, Inc. and Credit Acceptance Corp. alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., the Illinois Collection Agency Act (“ICAA”), 225 ILCS 425/1 et seq., the Illinois Consumer Fraud and Deceptive Practices Act (“ICFDPA”), 815 ILCS 505/1 et seq., and conversion under Illinois state law. Plaintiff alleges that he purchased a 2004 Nissan Altima on July 6, 2012, taking out a loan from the dealer, Ideal Motors, Inc., to finance the purchase. Ideal Motors assigned the debt agreement to Defendant Credit Acceptance, Corp. (“CAC”). When Plaintiff defaulted on his loan, CAC made various collection attempts, giving rise to this complaint.

         Plaintiff alleges that during the collection process, CAC violated the FDCPA and ICFDPA by misrepresenting that the debt was a consumer loan, that he was obligated to repay the loan, that CAC was a debt collector attempting to collect a debt, that CAC had a right to collect payments from him, and that CAC had an enforceable security interest in Plaintiff's car, among other alleged misrepresentations. Plaintiff further alleges that CAC violated the TCPA by calling Plaintiff's cell phone after Plaintiff expressly revoked any prior consent given to CAC to call him on his cell phone or any other phone.

         On or around June 12, 2014, CAC allegedly assigned, transferred, or otherwise engaged the services of Defendant Done Rite, which repossessed Plaintiff's car on April 10, 2014 for failure to make payments. Plaintiff alleges that neither Defendant is a registered debt collector, so in his view, their collection attempts and repossession violated the ICAA. Finally, Plaintiff alleges that he redeemed the loan with a cash payment in an amount proposed by CAC but did not receive his car in return and that Defendants' repossession of his car constituted conversion.

         Defendants moved to compel arbitration [see 18, 30, 34], arguing that the arbitration clause in the Retail Installment Contract requires Plaintiff to arbitrate this dispute. On April 30, 2015, the Court granted Defendants' motion, compelling arbitration and staying this litigation in the interim. [52.] Despite this ruling, Plaintiff filed a motion for summary judgment [57] on March 24, 2016.

         On May 5, 2016, Defendants filed a motion to enforce settlement agreement [69], stating that shortly after the Court granted Defendants' motion to compel arbitration, the parties engaged in settlement discussions that culminated in a meeting of the minds on August 14, 2015. [69, at 1; see also Plaintiff's response 71, and Defendants' reply 82.] According to Defendants, on August 14, 2015, Plaintiff contacted counsel for Defendants via email and asked if he could still accept a previous settlement offer.[1] [69-1, at 2.] Later that day, counsel for Defendants allegedly advised Plaintiff that the offer was still on the table and restated the offer:

1) Waiver of the balance due on the account - per our records $5, 889.58 is owed to date; and 2) $2, 000.00
conditioned upon receipt of your W-9, agreement to confidentiality, release of all claims, a dismissal of the case with prejudice as to both Credit Acceptance and Done Rite within 15 days of the receipt of the settlement check.
***
We'd also agree to trade line deletion here with regard to credit reporting.

[69-1, at 1-2.] Defendants contend that Plaintiff accepted the offer to settle via email on the same day, stating “i [sic] accept offer please call.” [69-1, at 1.]

         Defendants further contend that on September 16, 2015, counsel for Defendants sent Plaintiff a formalized settlement agreement for Plaintiff to review and sign, along with a form W-9 for Plaintiff to complete and return. [69, at 2; 69-2, at 1.] Defendants contend that there are no material differences between the terms outlined in the August 14, 2015 emails and this formal settlement agreement. Plaintiff did not respond. Defendants contacted Plaintiff multiple times via email and mail asking Plaintiff to execute the settlement agreement and to return the W-9 so that Defendants could prepare the settlement check. Specifically, Defendants followed-up with Plaintiff on ...


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