United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. DOW, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on the parties' cross-motions
for summary judgment on Count I of Plaintiff's complaint,
which alleges violations of the Fair Debt Collection
Practices Act. See  and . For the reasons explained
below, the Court grants in part and denies in part
Plaintiff's motion  and grants in part and denies in
part Defendants' motion . Summary judgment is granted
in favor of Plaintiff and against Defendants on
Plaintiff's claim that Freedman's March 20, 2014 wage
deduction notice violated 15 U.S.C. § 1692c(a)(2).
Summary judgment is granted in favor of Defendants and
against Plaintiff on (1) Plaintiff's claim that Defendant
Freedman's February 13, 2014 letter to Plaintiff's
counsel violated 15 U.S.C. §§ 1692e, 1692e(5),
1692(e)(10), 1692f and 1692f(1); and (2) Plaintiff's
claim that Defendant Freedman's March 20, 2014 wage
deduction notice violated 15 U.S.C. §§ 1692e,
1692e(5), 1692(e)(10), 1692f and 1692f(1).
II of Plaintiff's complaint, a claim against Defendant
Freedman for abuse of process, remains pending. This case is
set for status hearing on October 19, 2016 at 9:00 a.m.
following facts are drawn primarily from the parties'
Local Rule 56.1 statements, [75-2], , [94-1], and [94-2],
and are undisputed unless otherwise noted.
Brenda Washington (“Plaintiff”) obtained a GE
Capital Retail Bank credit card branded as a Lord &
Taylor credit card (the “Card”). See  at 5.
According to her declaration and deposition testimony,
Plaintiff used the Card to buy clothing for her personal use
and did not use the Card for business purposes.  at 6;
[75-6] at 3; [76-1] at 101. In approximately July 2013,
Plaintiff lost her job and was unemployed for the next year
and a half. Plaintiff did not keep up with the payments on
the Card and Plaintiff's account went into default and
was charged off.  at 5-7.
Portfolio Recovery Associates, LLC (“PRA”)
purchased the alleged debt after it entered default. PRA is
licensed as a collection agency in Illinois and, in certain
circumstances, acts as a “debt collector” as
defined by the FDCPA.  at 2-3. PRA retains Defendant
Freedman Anselmo Lindberg, LLC (“Freedman”), an
Illinois law firm, to collect outstanding balances on
accounts on its behalf, including on consumer accounts. 
at 4. Freedman is also, in certain circumstances, a
“debt collector” as defined by the FDCPA.  at
hired Freedman to collect Plaintiff's outstanding debt on
the Card.  at 5, 7. The retainer agreement
(“Retainer Agreement”) between PRA and Freedman
provides that Freedman “may not adjust any Account
Balance at any time to include additional finance charge(s)
or other fees and charges, with the exception of allowable
pre-judgment and post-judgment interest, court costs
incurred, and attorneys' fees awarded by a court on the
court's own volition without a request made by
Attorney.”  at 8 (quoting [76-3] at 8, ¶
2(i)). The parties dispute whether the Retainer Agreement
allows the imposition of late charges. Defendants take the
position that the Retainer Agreement “would support
charges ordered by the Court.”  at 12. They cite
the deposition testimony of Barbara Nilsen, who was formerly
a Freedman attorney, that such charges would
“[p]ossibly” include late charges “if the
Court [awarded such charges] on its own volition.” 
Retainer Agreement also provides that Freedman shall,
“[a]fter reasonable notice, provide to PRA all letters,
notices, forms, scripts or other forms of communication with
PRA customers for PRA's approval, which may be withheld
or granted in PRA's sole discretion.”  at 9-10
(quoting [76-3] at 8, ¶ 2(g)). Further, the Retainer
Agreement requires Freedman to “establish and maintain
internal policies and procedure documents for the process of
receiving, collection, litigating, processing payments and
maintaining PRA accounts” and to “perform the
services as counsel for PRA using [Freedman's] reasonable
professional judgment.” [76-3] at 7-8, ¶¶
end of October 2013, Freedman, acting on behalf of PRA, filed
a complaint against Plaintiff in the Circuit Court of Cook
County, Illinois (Case No. 13-M1-159783) to collect the debt
(the “State Action”).  at 8. On December 17,
2013, the Cook County Circuit Court entered a default
judgment against Plaintiff in the amount of $803.60 with
costs assessed.  at 9.
consulted with attorneys at the Debtors Legal Clinic about
the State Action. On December 27, 2013, one of Debtors Legal
Clinic's attorneys, Andrew Finko, sent Freedman a letter
stating that he was representing Plaintiff in the State
Action and that Plaintiff “disputes this debt and
intends to fully participate in the case.”  at 9.
Plaintiff's attorneys entered appearances in the State
Action on January 14, 2014. At the same time, they filed a
motion to vacate the default judgment that had been entered
against Plaintiff.  at 9. Plaintiff's attorneys never
served Defendants with their appearances, the notice of
motion to vacate, or the motion to vacate. [94-1] at 1.
February 13, 2014, Freedman mailed a letter to
Plaintiff's counsel regarding Plaintiff's account.
The letter stated:
Pursuant to your request, we enclose a copy of the contract
and/or payment history and/or supporting documentation to
validate this particular issue. Please note that the original
creditor is GE CAPITAL RETAIL BANK at PC BOX 960061, ORLANDO,
FL 32896-0061, my client now the assignee of this particular
creditor. After your review, I invite you to contact our
office in hopes of amicable resolution of this matter without
further inconvenience to your client.
Further, as of the date of this letter, the balance claimed
is $1, 035.60. Because of interest, late charges, and other
charges that may vary from day to day, the amount due on the
day your client may pay could be greater. Hence, if your
client pays the amount shown above, an adjustment may be
necessary after we receive your client's check, in which
event we will inform you before depositing the check for
collection. It is important that you contact this office
regarding this account. [94-1] at 2.
March 5, 2014, the Cook County Circuit Court granted
Plaintiff's motion to vacate the default judgment that
had been entered against her.  at 11. Plaintiff's
attorneys never served Defendants with the order vacating the
default judgment. [94-1] at 1.
March 7, 2014, PRA communicated to the Equifax consumer
reporting agency that Plaintiff had a balance of $804. 
March 20, 2014, Freedman sent to Plaintiff (rather than to
her attorney) a Wage Deduction Notice.  at 12-13.
Defendants acknowledge that, as of this date, Freedman knew
that Plaintiff was being represented by counsel.  at 14.
The Wage Deduction Notice informed Plaintiff that there was a
judgment against her in the amount of $803.60 [1-1] at 23;
however, at the time Freedman sent the Wage Deduction Notice,
the default judgment against Plaintiff had already been
vacated by the Cook County Circuit Court.  at 14. The
Wage Deduction Notice also informed Plaintiff that her
balance due was $1, 102.93, and that the Cook County Circuit
Court had issued a wage deduction summons against her
employer. [1-1] at 23. The balance due consisted of the
judgment amount, interest, and court costs.  at 13.
According to Plaintiff, at the time she received the notice
she was undergoing treatment for cancer and she became
alarmed that she would not be able to afford her cancer
treatments and that she could lose her job as a result of the
garnishment.  at 14-15.
to Defendants, on March 21, 2014, Freedman learned for the
first time that the default judgment had been vacated. [94-1]
at 1-2. Freedman learned this information when it received
notice from an attorney at another law firm that had received
the Court's order in error. [94-1] at 2.
23, 2014, Plaintiff filed the instant lawsuit alleging claims
for violation of the Fair Debt Collection Practices Act
(“FDCPA”). See . First, Plaintiff alleged that
Freedman's February 13, 2014 letter falsely represented
to Plaintiff's attorney that “late charges”
could increase the total balance that Plaintiff owed, even
though “there was no legal possibility that such
charges could be added, ” in violation of 15 U.S.C.
§§ 1692e, 1692e(5), 1692e(10), and 1692f(1).
Second, Plaintiff alleged that Freedman's March 20, 2014
Wage Deduction Notice violated the FDCPA because (A) it was
mailed directly to Plaintiff rather than to her attorney, in
violation of 15 U.S.C. § 1692(a)(2); and (B) it falsely
represented that there was a judgment against Plaintiff and
that her wages could be garnished, in violation of 15 U.S.C.
§§ 1692e, 1692e(2), 1692e(5), 1692(e)(10).
Plaintiff's complaint also includes a claim against
Freedman for abuse of process.
before the Court are the parties' cross-motions for
summary judgment on Plaintiff's FDCPA claims.
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.”
Fed.R.Civ.P. 56(a). A party's assertion that a fact
cannot be or is genuinely disputed must be supported by the
materials in the record, including but not limited to
“depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, [and] interrogatory answers.” Fed.R.Civ.P.
56(c)(1). A genuine issue of material fact exists if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
party seeking summary judgment has the burden of establishing
the lack of any genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The Court “must construe all facts and draw all
reasonable inferences in the light most favorable to the
nonmoving party.” Majors v. Gen. Elec. Co.,
714 F.3d 527, 532 (7th Cir. 2013) (citation and internal
quotation marks omitted). Where, as here, the parties have