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Skinner v. LVNV Funding, LLC

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

January 8, 2018

LISA SKINNER, Plaintiff,



         Presently before us are the parties' cross-motions for summary judgment. Plaintiff Lisa Skinner moved for summary judgment on her claims under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and Illinois Collection Agency Act (“ICAA”), 225 ILCS 452/1 et seq. (Pl.'s Mot. (Dkt. No. 30) at 1.) Plaintiff also submitted a motion for judicial notice of a document. (Pl.'s Mot. for Notice (Dkt. No. 48) at 2, Ex. A.) Defendant LVNV Funding, LLC (“LVNV”) responded to Plaintiff's motions by filing a cross-motion for summary judgment on the same claims. (Def.'s Mot. (Dkt. No. 40) at 1.) The parties have fully briefed the cross-motions. For the following reasons, we grant Plaintiff's motion for judicial notice, deny Plaintiff's motion for summary judgment, and grant Defendant's motion for summary judgment.


         On December 31, 2011, HSBC charged off a debt of approximately $243.00 Plaintiff incurred through a credit card account with the bank. (Pl.'s Statement of Uncontested Facts (“SOF”) (Dkt. No. 31) ¶ 8; Def.'s SOF (Dkt. No. 42) ¶ 4, Ex. 4.) Sherman Originator, LLC (“Sherman”) purchased the debt from HSBC in January 2012 and then transferred the debt to LVNV.[1] (Pl.'s SOF ¶¶ 2, 8; Def.'s SOF ¶¶ 2, 5.)[2] LVNV furnished Plaintiff's account information to credit reporting agency TransUnion through LVNV's servicing agent, Resurgent, in August 2015. (Pl.'s SOF ¶¶ 11-12; Def.'s SOF ¶¶ 8-9.) Through Resurgent, LVNV reported to TransUnion that Plaintiff originally owed $381.00 and had a current balance of $437.00. (Pl.'s SOF ¶ 11; Def.'s SOF ¶ 9.) The reported increase in the amount of debt from $243.00 is allegedly due to interest accrued after HSBC charged off the debt. (Pl.'s Mot. at 8.)

         Plaintiff filed a complaint in Federal Court on July 8, 2016 claiming Defendant's reporting of her balance violated the FDCPA and the ICAA. (Compl. (Dkt. No. 1).) Specifically, Plaintiff alleges Defendant illegally misrepresented that Plaintiff owed $437.00, $194.00 more than Plaintiff's charged off debt, because Defendant did not have the right to collect interest on the debt. (Id. ¶¶ 13-31.) In response, Defendant filed an answer denying the claims and asserting affirmative defenses. (Dkt. No. 11.)


         Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment only if it demonstrates there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). We may not grant summary judgment “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553 (1986). “On cross-motions for summary judgment, the Court assesses whether each movant has satisfied the requirements of Rule 56.” Portalatin v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 125 F.Supp.3d 810, 813 (N.D. Ill. 2015). As with any summary judgment motion, we consider 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) (citing Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir.2008)).


         I. Judicial Notice of LVNV's Filings in Illinois State Court

         As a preliminary matter, we first address Plaintiff's motion for judicial notice of a document listing results of a docket search from the Clerk of the Circuit Court of Cook County. (Pl.'s Mot. for Notice at 2, Ex. A.) The search lists hundreds of cases filed by a “LVNV Funding” as plaintiff in the Cook County Circuit Court in July 2017. (Id.) Plaintiff requests we take notice of this document in support of her motion for summary judgment. (Id. at 1.)

         Federal Rule of Evidence 201 allows a court to take judicial notice of any fact that is “not subject to reasonable dispute” because it is generally known in the court's jurisdiction or “can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.” Fed.R.Evid. 201(b). Judicial notice of Plaintiff's document is proper because the entries' existence is not in dispute and their accuracy can be easily confirmed by examining the court's electronic docket. Stern v. Great W. Bank, 959 F.Supp. 478, 481 (N.D. Ill. 1997) (taking judicial notice of the court record of a related proceeding); Cagan v. Intervest Midwest Real Estate Corp., 774 F.Supp. 1089, 1093 (N.D. Ill. 1991) (finding judicial notice of a court order in another case proper); Montanez v. Velasco, No. 1:12 C 00250 AWI, 2013 WL 4041847, at *3 n.1 (E.D. Cal. Aug. 7, 2013) (taking judicial notice of the results of a county court's electronic docket search); Rice v. Jones, No. CV 112 051, 2012 WL 3242038, at *1 n.3 (S.D. Ga. July 12, 2012), report and recommendation adopted, No. CV 112 051, 2012 WL 3242025 (S.D. Ga. Aug. 7, 2012) (same). Further, Defendant has not expressed any challenge to the authenticity of these entries and does not otherwise oppose the motion. We accordingly grant Plaintiff's motion for judicial notice. (Dkt. No. 48.)

         II. FDCPA Claim

         We turn next to Plaintiff's claim under the FDCPA. The FDCPA aims to deter wayward debt collection practices that disrupt debtors' lives. Henson v. Santander Consumer USA, Inc., 582 U.S.__, 137 S.Ct. 1718, 1720 (2017); Pettit v. Retrieval Masters Creditor Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir. 2000). The statute prevents debt collectors from utilizing “false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. However, the FDCPA only applies to “debt collectors” as defined by the statute in § 1692a(6). Ruth v. Triumph P'ships, 577 F.3d 790, 796 (7th Cir. 2009). Section 1692a(6) provides two alternative definitions of a “debt collector”: (1) “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” (the “principal purpose” definition), or (2) any person “who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another” (the “regularly collects” definition). 15 U.S.C. § 1692a(6); Schlaf v. Safeguard Props., LLC, No. 15 C 50113, 2017 WL 4856227, at *3 (N.D. Ill. Aug. 29, 2017). Plaintiff has the burden of establishing Defendant meets a statutory definition of a debt collector to succeed on her FDCPA claim. Heller v. Graf, 488 F.Supp.2d 686, 692 (N.D. Ill. 2007).

         The parties dispute whether Defendant meets the definition of “debt collector” under the FDCPA. It is undisputed Defendant owned Plaintiff's debt after it purchased it from Sherman. (Compl. ¶ 17; Def.'s Resp. at 2.) Defendant argues the Supreme Court's recent decision in Henson forecloses LVNV from qualifying as a debt collector. (Def.'s Mot. at 7; Def.'s Rep. (Dkt. No. 51) at 1.) In Henson, the Court unanimously held that a debt purchaser who seeks to “collect debts for its own account” is not a debt collector under the FDPCA based on the plain language of § 1692a(6). 137 S.Ct. at 1722. Plaintiff argues that Henson ...

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