United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. Shah United States District Judge.
Ruge alleges that Delta Outsource Group, Inc., violated the
Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq. (FDCPA), while trying to collect on
Ruge's debt. Delta and Ruge both move for summary
judgment. For the following reasons, Delta's motion is
denied and Ruge's motion is granted.
cross-motions for summary judgment, a court must “look
to the burden of proof that each party would bear on an issue
of trial; we then require that party to go beyond the
pleadings and affirmatively to establish a genuine issue of
material fact.” Santaella v. Metro. Life Ins.
Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
For each motion, factual inferences are viewed in the
nonmovant's favor. See Hotel 71 Mezz Lender LLC v.
National Ret. Fund, 778 F.3d 593, 603 (7th Cir. 2015).
However, “[c]ross-motions must be evaluated together,
and the court may not grant summary judgment for either side
unless the admissible evidence as a whole-from both motions-
establishes that no material facts are in dispute.”
Bloodworth v. Village of Greendale, 475
Fed. App'x 92, 95 (7th Cir. 2012) (citing Dynegy
Mktg. & Trade v. Multiut Corp., 648 F.3d 506, 517
(7th Cir. 2011)).
Angela Ruge had a consumer, retail credit card account with
Comenity Bank.  ¶ 6. Her debt was in default, and by
June 2015, the bank stopped charging her interest and late
fees.  ¶ 8. In late August 2015, the bank assigned
Ruge's debt to defendant Delta Outsource Group, Inc., a
licensed collection agency.  ¶¶ 4, 12-13.
Within a few days, Delta sent Ruge a letter with information
about the debt, including the identity of the current
creditor, identity of the original creditor, account number,
and a current balance on the debt.  ¶¶ 1- 2.
Delta's letter also stated: “Because of interest,
late charges, or other charges that may vary from day to day,
the amount due on the day you pay may be greater.” 
¶ 3. Delta did not actually add interest, late
fees, or other fees to Ruge's account,  ¶ 9, and
Delta does not add interest or late charges to Comenity Bank
accounts assigned to it for collection.  ¶
seeks summary judgment, arguing that Delta lacked authority
and never intended to charge interest, thereby violating 15
U.S.C. § 1692e, which prohibits a debt collector from
using false, deceptive, or misleading means to collect a
debt, and violating § 1692f, which prohibits a debt
collector from using unfair or unconscionable means to
collect a debt. Under the umbrella of § 1692e, she
specifically invokes: § 1692e(2)(A), which prohibits the
false representation of the character, amount or legal status
of a debt; § 1692e(5), which prohibits threatening to
take “any action that cannot legally be taken or that
is not intended to be taken;” and § 1692e(10),
which prohibits the use of any false representation or
deceptive means to collect a consumer debt. Delta also seeks
summary judgment, maintaining that it did not use deceptive
or unfair means to collect Ruge's debt because its letter
conformed to safe harbor language outlined by the Seventh
Circuit in Miller v. McCalla, Raymer, Padrick, Cobb,
Nichols, & Clark, L.L.C., 214 F.3d 872 (7th Cir.
2000), and because it had authority to collect interest.
arguments are largely unpersuasive, but she prevails on the
parties' cross-motions for summary judgment because the
undisputed evidence is that Delta did not charge interest on
Comenity Bank accounts. As a result, Delta's dunning
letter was materially false or misleading, because it implied
that “because of interest” the amount due may
increase. This implied an action-the assessment of
interest-that Delta did not intend to take, in violation of
§ 1692e claim requires demonstrating that the debt
collection language constituted a materially false statement
that was misleading-a technically false statement that is not
misleading does not run afoul of § 1692e. Lox v.
CDA, Ltd., 689 F.3d 818, 822 (7th Cir. 2012). A false or
misleading statement is material if it has the ability to
influence a consumer's decision. Id. at 826. In
deciding whether a dunning letter is misleading, the letter
is viewed through the perspective of an
“unsophisticated consumer.” Id. at 822.
letter to Ruge stated: “As of the date of this letter,
our records indicate that you currently owe $814.94. Because
of interest, late charges, or other charges that may vary
from day to day, the amount due on the day you pay may be
greater.” [1-1] at 4. The letter implied that adding
interest was a possible outcome of Delta's debt
collection. The conditional nature of the language at issue
does not save it from the misleading impression that
additional interest debt was possible, when the truth is that
Delta was never going to assess interest against Ruge.
See Lox, 689 F.3d at 825 (“[C]onditional
language, particularly in the absence of any language
clarifying or explaining the conditions, does not insulate a
debt collector from liability.”) (quoting Gonzales
v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1059 (9th Cir.
2011)); Ruth v. Triumph P'ships, 577 F.3d 790,
801 (7th Cir. 2009) (the only reasonable interpretation of a
letter stating that debt collector “may collect and/or
share all information we obtain in servicing your
account” to “the extent permitted by law”
was that the letter threatened to share information without
permission). “When language in a debt collection letter
can reasonably be interpreted to imply that the debt
collector will take action it has no intention or ability to
undertake, the debt collector that fails to clarify that
ambiguity does so at its peril.” Lox, 689 F.3d
argues that it is entitled to summary judgment because its
letter describes the amount of Ruge's debt using
“safe harbor” language provided in
Miller v. McCalla, Raymer, Padrick, Cobb,
Nichols, & Clark, L.L.C., 214 F.3d 872 (7th Cir.
2000). In Miller, the Seventh Circuit outlined safe
harbor language for a debt collector to state the amount of a
debt, if the amount varies day-to-day:
As of the date of this letter, you owe $ [the exact amount
due]. Because of interest, late charges, and other charges
that may vary from day to day, the amount due on the day you
pay may be greater. Hence, if you pay the amount shown above,
an adjustment may be necessary after we receive your check,
in which event we will inform you before depositing the check
for collection. For further information, write the
undersigned or call 1-800- [phone number].
Id. at 876. While Delta's letter is nearly
identical to the safe harbor language in Miller,
Miller does not provide a defense if the safe harbor
language itself is inaccurate under the
circumstances.Id. (a debt collector using the
“safe harbor” language does not misstate the
amount of a varying debt “provided, of course, that the
information he furnishes is accurate”). It is
undisputed that Delta did not charge interest on
Comenity Bank accounts assigned to it for collection,
including Ruge's account.  ¶ 18. The ...