United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE
Evans has filed an action under the Fair Debt Collection
Practices Act (FDCPA) against Portfolio Recovery Associates,
LLC (PRA). Evans alleges that PRA violated the FDCPA by
reporting to a credit agency that Evans failed to pay her
credit card debt without also disclosing that Evans disputed
the debt. Evans has moved for summary judgment, and PRA has
filed a cross motion for summary judgment.
obtained an Avenue credit card that was financed by World
Financial Network Bank. Evans used this card to purchase
"clothes, purses, underwear, " and similar personal
items. Pl.'s Mot. for Summ. J., Ex. B (Evans Dep.) at
124:8-9. Due to a change to her financial circumstances,
Evans could not pay her credit card debt, and the debt went
licensed as a collection agency in the State of Illinois. On
April 23, 2013, PRA purchased Evans's defaulted account.
It sent Evans collection letters for several months reporting
that her Avenue balance of $1, 297.87 was due. Evans
eventually retained attorneys from Debtors Legal Clinic. When
Evans reviewed her credit report with her attorneys, she told
them she did not believe the amount of $1, 297.87 was
accurate because her credit limit had been only $400. On
March 27, 2014, Debtors Legal Clinic faxed a letter to PRA on
Evans's behalf that included the following statement:
"This client regrets not being able to pay, however, at
this time they are insolvent, as their monthly expenses
exceed the amount of income they receive, and the amount
reported is not accurate. If their circumstances should
change, we will be in touch." Def. Resp. to Pl.'s
Stat. of Material Facts, Ex. C.
December 2014, PRA reported Evans's debt to Experian, a
consumer reporting agency. PRA failed to communicate to
Experian, however, that Evans had disputed the amount
reported as her debt. Evans has filed this lawsuit claiming
that PRA's actions violated the FDCPA.
is entitled to summary judgment if it "shows that there
is no genuine dispute as to any material fact and [it] is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). On cross motions for summary judgment, the court
assesses whether each movant has satisfied the requirements
of Rule 56. See Cont'l Cas. Co. v. Nw. Nat'l Ins.
Co., 427 F.3d 1038, 1041 (7th Cir. 2005). "As with
any summary judgment motion, we review cross-motions for
summary judgment construing all facts, and drawing all
reasonable inferences from those facts, in favor of the
non-moving party." Laskin v. Siegel, 728 F.3d
731, 734 (7th Cir. 2013) (internal quotation marks omitted).
1692e of the FDCPA states that "[a] debt collector may
not use any false, deceptive, or misleading representation or
means in connection with the collection of any debt." 15
U.S.C. § 1692e. Evans contends that PRA violated this
provision. PRA contends that Evans cannot prove that it was a
debt collector, that the debt meets the FDCPA's
definition of that term, or that it knowingly made a
materially false, deceptive, or misleading representation.
PRA also argues that it is protected from liability by the
FDCPA's bona fide error provision. Finally, it contends
that Evans lacks standing to sue.
"debt" within the meaning of the FDCPA is an
obligation arising from a transaction that was primarily for
personal, family or household purposes. 15 U.S.C. §
1692a(5). As indicated earlier, Evans testified that she used
her credit card to purchase clothes, purses, underwear, and
similar personal items. PRA offers no evidence to call
Evans's testimony into question. The Court concludes that
no reasonable jury could find that the obligation in question
did not involve a debt within the meaning of the FDCPA.
FDCPA defines a "debt collector" as "any
person who uses any instrumentality of interstate commerce or
the mails in any business the principal purpose of which is
the collection of any debts, or who regularly collects or
attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another." 15 U.S.C.
§ 1692a(6). PRA is licensed as a collection agency. And
it has admitted in its answer to Evans's complaint that
"in certain circumstances and in certain instances, it
acts as a 'debt collector' as defined by the FDCPA .
. . ." Answer ¶ 3. The only basis for PRA's
hedging on this point was its claimed lack of knowledge of
whether Evans's debt was a consumer debt. See
Id. This uncertainty having been eliminated via
undisputed evidence as discussed in the preceding section,
the basis for PRA's hedging is now gone. PRA was a debt
collector; no reasonable jury could find otherwise.
Use of a false, misleading, or ...