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In re Netzel

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

February 1, 2017

IN RE MICHAEL and KELLY NETZEL, Plaintiffs,
v.
WAKEFIELD & ASSOCIATES 830 E. Platte Ave. Unit A Fort Morgan, CO 80701 Defendant.

          MEMORANDUM ORDER

          Milton I. Shadur, Senior United States District Judge

         This action by Michael and Kelly Netzel (collectively "Netzels")[1] has invoked the Fair Debt Collection Practices Act (the "Act")[2] to charge Wakefield & Associates ("Wakefield") with having engaged in unlawful collection practices violating the Act. This memorandum order is issued sua sponte because of the problematic nature of the Complaint as presented by Netzels' counsel.

         What the Complaint targets is a single communication from Wakefield to addressees identified as "The Parents Of Harmony Richardson, " conveying a message admittedly identified in the document itself as "a communication from a debt collector." What is charged in the Complaint as having run afoul of the Act is the inclusion of the underscored portion of the following printed message that makes up the text of the communication:

Our client(s) referred your past due account(s) to this Agency for collection. If there is some reason why you are unable to make full payment on this outstanding balance we ask that you contact our office.
To insure proper credit to your account(s) please use payment coupon below and make your check payable to Wakefield & Associates, Inc. Interest may be accruing on the balance, please call for updated total before sending payment.
You may make your payment online by going to our payment vendor's secure website: wakefieldpaymentsolutions.com.

         According to Netzels' counsel, that communication violates Section 1692e. In that respect Complaint ¶¶ 22 through 24 allege:

22. There has been no agreement for interest between Plaintiff and the original creditor.
23. Therefore, the only interest that would apply would be statutory interest, which here in Illinois is governed by 815 ILCS 205/, which states statutory interest does not apply until there has been a 30 day notice for such interest by the Debt Collector.
24. Here, the letter is the thirty day notice, it is not legally possible for interest to accrue at this point.

         And as Netzels' counsel would have it, the language in Wakefield's communication that has been underlined above in this memorandum order violated Section 1692e by materially misleading Netzels[3] because, as Complaint ¶ 25 alleges:

It is a violation of 15 U.S.C. Section 1692e to imply an outcome that can not legally come to pass.

         This Court is of course well aware of the low level of sophistication or comprehension on the part of someone targeted by a debt collector that our Court of Appeals has set as the standard for finding any communication from that debt collector violative of the Act. But here Netzels'

         Complaint seeks to call to their aid caselaw from our Court of Appeals and other courts that does not at all justify the ...


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