United States District Court, N.D. Illinois, Eastern Division
NACOLA MAGEE and JAMES PETERSON, individually and on behalf of all others similarly situated, Plaintiffs,
PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
W. DARRAH United States District Court Judge.
9, 2016, Portfolio Recovery Associates, LLC's
(“Defendant”) Motion for Summary Judgment was
denied as to Counts I and II of Plaintiffs' First Amended
Complaint, and Plaintiffs Nacola Magee and James
Peterson's (“Plaintiffs”) Motion for Summary
Judgment was granted. On June 6, 2016, Defendant filed a
Motion to Reconsider, or Alternatively, to Stay 
pursuant to Federal Rule of Civil Procedure 59(e). For the
reasons set forth below, Defendant's Motion  is
brought this class action against Defendant for alleged
violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et.
seq. On August 15, 2012, this Court granted
Defendant's Motion to Dismiss Plaintiffs' initial
Complaint and granted Plaintiffs leave to file an amended
pleading. Plaintiffs filed a two-count amended complaint on
August 23, 2012 (Dkt. 39), asserting violations of the FDCPA
in Count I (Misleading Settlement Offers on Time-Barred
Debts) and Count II (Threat of Credit Reporting).
October 16, 2015, Plaintiffs filed a Motion for Summary
Judgment on all of Plaintiffs' claims. (Dkt. 269.)
Defendant filed a Response to the Motion for Summary Judgment
as well as a Cross-Motion for Summary Judgment. (Dkt. 277.)
On May 9, 2016, the Court denied Defendant's Motion for
Summary Judgment as to Counts I and II and granted
Plaintiffs' Motion for Summary Judgment
(“Order”). (Dkt. 292.) Defendant filed a Motion
to Reconsider the Order granting Plaintiff's Motion for
Summary Judgment on Count I of the First Amended Complaint
or, alternatively, to stay this case pending the outcome of
an appeal of a case cited in this Court's opinion. (Dkt.
purposes relevant to the Motion at issue, the Order held that
Defendant's failure to include language stating that
Plaintiffs' debt was time barred, that Plaintiffs could
no longer be sued on that debt, and that Plaintiffs'
partial payment would reset the statute of limitations period
was clearly deceptive on its face. (Order at p. 4.)
Therefore, summary judgment was awarded on Count I without
extrinsic evidence as the deceptive language is materially
for reconsideration serve a limited function: to correct
manifest errors of law or fact or to present newly discovered
evidence.” Caisse Nationale de Credit Agricole v.
CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir.1996)
(internal citation omitted). Under Federal Rule of Civil
Procedure 59(e), a motion to alter or amend a judgment is
permissible when there is newly discovered evidence or there
has been a manifest error of law or fact. Harrington v.
City of Chi., 433 F.3d 542, 546 (7th Cir. 2006). A
manifest error of law is the “disregard,
misapplication, or failure to recognize controlling
precedent.” Oto v. Metro. Life Ins., 224 F.3d
601, 606 (7th Cir. 2000) (quoting Sedrak v.
Callahan, 987 F.Supp. 1063, 1069 (N.D. Ill. 1997)). To
succeed on a Rule 59(e) motion, the movant must
“clearly establish one of the aforementioned grounds
for relief.” Harrington, 433 F.3d at 546.
is not intended as an opportunity to reargue the merits of a
case, Neal v. Newspaper Holdings, Inc., 349 F.3d
363, 368 (7th Cir.2003), or to submit evidence that could
have been presented earlier. Dal Pozzo v. Basic Machinery
Co., Inc., 463 F.3d 609, 615 (7th Cir. 2006) (citing
Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th
Cir.1995)); see also Oto, 224 F.3d at 606 (7th Cir.
2000) (a motion to reconsider should not be used to rehash
these guidelines here, the Motion must be denied. Defendant
presents three arguments as to why the Court should
reconsider its judgment granting Plaintiff's Motion for
Summary Judgment on Count I under Rule 59(e). First,
Defendant argues that the Court erred because it did not
address whether an unsophisticated consumer would believe the
Defendant's settlement offer implied that it would sue.
Defendant further argues that the Court previously found that
the letters were plainly and clearly not misleading. Finally,
the Defendant argues that the Court erred in finding that the
language in the letters could influence a consumer's
decision and was material and that applying Pantoja v.
Portfolio Recovery Associates, LLC, No. 13 C 7667, 2015
WL 848568, *3 (N.D. Ill. Jan. 14, 2015), was in error.
raised its first argument (that an unsophisticated consumer
would not believe the settlement offer implied that the
Defendant would sue) in its Cross-Motion for Summary
Judgment. In its Memorandum in Support of its Cross-Motion,
Defendant argued that Plaintiffs must prove that the letters
at issue deceived unsophisticated consumers into believing
that the debts were legally enforceable. (See, e.g.,
Dkt. 277 at pp. 8, 14-15, 19.) In the Order, the Court
determined that Defendant's failure to include language
in the dunning letter that Plaintiff's debt was time
barred, that Plaintiffs could no longer be sued on the debt
and that a partial payment would reset the statute of
limitations period is clearly deceptive on its face, and that
the “settlement” language in the letters misleads
consumers to believe that their time-barred debt is legally
enforceable. Order at pp. 7-9. Because the Defendant raises
arguments in the Motion that the Defendant has already
presented and that this Court has already considered and
rejected, the Motion is denied.
Defendant argues that the Court erred in finding the letter
fell within the “clear violation” category
because this Court previously held, on August 15, 2012, that
the language in the letters was plainly and clearly not
misleading. According to Defendant, the Court
previously held that the language in the letters fell within
the plainly and clearly not misleading category because the
Court noted that a dunning letter may use
“settle” or “settlement” and that the
operative pleading at the time did not contain allegations
that the letters were threatening or confusing. (Dkt. 294 at
p. 5.) Defendant's argument, however, takes liberties
with the Court's prior ruling and misconstrues the
prior ruling, granting Defendant's Motion to Dismiss the
Plaintiffs' initial Complaint, held that the allegations
in the initial Complaint had not alleged that the letters
contained “any threat, either explicit or implicit,
” was accompanied by actual litigation, or that any
language contained in the letters was confusing. (Dkt. 38 at
p. 6.) The prior ruling noted that a debt collector is
allowed to use the term “settle” or
“settlement” in a debt-collection letter.
(Id.) The prior ruling does not, however, hold that
the letters were plainly and clearly not misleading nor does
the prior ruling contradict the Order. In this respect, the
prior ruling did not specifically hold that the letters were
plainly and clearly not misleading. ...