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Holcomb v. Freedman Anselmo Lindberg, LLC

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

March 24, 2017

BETTY HOLCOMB, Plaintiff,
v.
FREEDMAN ANSELMO LINDBERG, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN Z. LEE United States District Judge.

         Betty 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 [64] and denies Freedman's motion [68].

         DISCUSSION

         The 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.

         In 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.[1] Id. ¶ 9; Def.'s Ex. 1, 9/16/14 Letter from Finko to Freedman, at 1.

         Holcomb's 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.

         After 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. ¶ 13.

         The 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.

         On 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.

         According 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.

         Legal Standard

         “The 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. 2012).

         Analysis

         The 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 name ...


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