United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. LEE United States District Judge.
Holcomb has sued the law firm of Freedman Anselmo Lindberg,
LLC (“Freedman”), alleging a violation of the
Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692c(a)(2). In short, Holcomb alleges that
Freedman violated the FDCPA by mailing court filings to her
directly when Freedman knew that she was represented by
counsel in the case. Freedman counters that, while
Holcomb's attorney was present at a couple of court
hearings, the attorney did not file an appearance and,
therefore, was not an “attorney of record.”
According to Freedman, in such cases, Illinois procedural
rules required Freeman to mail the court papers to Holcomb
directly. The parties have filed cross-motions for summary
judgment. For the following reasons, the Court grants
Holcomb's motion  and denies Freedman's motion
material facts of this case are undisputed. Holcomb opened a
credit card account with Citibank, N.A. Pl.'s LR
56.1(a)(3) Stmt. ¶ 5. Holcomb eventually could not pay
the balance and defaulted on the account. Id.
Portfolio Recovery Associates, LLC then purchased
Holcomb's debt and hired Freedman to collect it.
Id. ¶¶ 6-7.
order to collect the debt, Freedman filed a complaint on
Portfolio Recovery's behalf against Holcomb in the
Circuit Court of Cook County on August 4, 2014. Id.
¶ 8. In response to the lawsuit filed against her,
Holcomb retained attorneys at Debtors Legal
Clinic. Id. ¶ 9; Def.'s Ex. 1,
9/16/14 Letter from Finko to Freedman, at 1.
attorney, Andrew Finko, notified Freedman via letter dated
September 16, 2014, that Holcomb was represented by Debtors
Legal Clinic and that she disputed the debt at issue.
Pl.'s LR 56.1(a)(3) Stmt. ¶ 10. In addition, Finko
specifically instructed Freedman to contact Debtors Legal
Clinic if Freedman wished to discuss the matter. Id.
Freedman received the letter, Freedman added two notations to
Holcomb's account: “n-c” and
“FDCPAA.” Id. ¶ 12. According to
Barbara Nilsen, who was Freedman's managing attorney at
the time, these notations meant “no calls, FDCPA
attorney.” Id. About three weeks later,
Freedman sent Holcomb's attorneys a copy of her credit
card contract and account information. Id. ¶
parties appeared before the Circuit Court on November 12,
2014, and January 6, 2015. Holcomb's attorney appeared on
behalf of Holcomb at both hearings. His appearance at these
two hearings was confirmed in notes taken by Freedman's
own attorney. Id. ¶¶ 14-18; see
Def.'s Ex. 4, Nilsen Dep. 18:1-20:1, 38:3-38:16,
39:6-39:20, Oct. 27, 2015; Def.'s LR 56.1(b)(3)(C) Stmt.
¶ 37; Def.'s Ex. 2, Case Information Summary, at 3.
More significantly, the appearance of Holcomb's attorney
was recognized by the Circuit Court in orders signed by Judge
Dennis McGuire and dated November 12, 2014, and January 6,
2015. [CITE-Ex. E and F in Pl.'s exhibits] For whatever
reason, however, Holcomb's attorneys did not file a
written appearance until January 20, 2015. Def.'s LR
56.1(b)(3)(B) Stmt. ¶ 11; Def.'s Ex. 2, Case
Information Summary, at 3.
January 8, 2015, Freedman, claiming that Holcomb was in
default in the state court proceedings, filed a motion for
judgment. Pl.'s LR 56.1(a)(3) Stmt. ¶ 20. The next
day, Freedman mailed a copy of its motion and notice of
motion to Holcomb as well as her attorney. Id.
¶ 21. These documents included the name of the current
owner of the debt and Holcomb's name. Def.'s Ex. 8,
Notice of Motion and Motion for Judgment. In addition, the
motion for judgment stated the amount of the alleged debt,
which was $10, 212.11. Id.
to Holcomb, upon receiving the documents, Holcomb began to
feel scared, anxious, and stressed, because she believed that
Portfolio Recovery would continue to contact her directly
even though she had retained an attorney. Pl.'s LR
56.1(a)(3) Stmt. ¶ 30. Holcomb also suffered anxiety and
stress because she thought she could face criminal
consequences if a judgment were entered against her.
Id. ¶ 32.
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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). At the summary
judgment stage, a court must consider any disputed facts in
the light most favorable to the nonmoving party, drawing all
reasonable inferences in the nonmoving party's favor.
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986);
Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719
F.3d 785, 794 (7th Cir. 2013). To survive summary judgment,
the nonmoving party must “do more than simply show that
there is some metaphysical doubt as to the material facts,
” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and instead “must
establish some genuine issue for trial such that a reasonable
jury could return a verdict in her favor.” Gordon
v. FedEx Freight, Inc., 674 F.3d 769, 772-73 (7th Cir.
FDCPA was enacted to “eliminate abusive debt collection
practices by debt collectors” and “to promote
consistent State action to protect consumers against debt
collection abuses.” 15 U.S.C. § 1692(e). To this
end, § 1692c(a)(2) of the FDCPA provides that
“[w]ithout the prior consent of the consumer given
directly to the debt collector or the express permission of a
court of competent jurisdiction, a debt collector may not
communicate with a consumer in connection with the collection
of any debt . . . if the debt collector knows the consumer is
represented by an attorney with respect to such debt and has
knowledge of, or can readily ascertain, such attorney's