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Pierre v. Midland Credit Management, Inc.

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

February 5, 2018

RENETRICE R. PIERRE, Individually and on Behalf of others Similarly Situated, Plaintiff,
v.
MIDLAND CREDIT MANAGEMENT, INC., a Kansas Corporation, Defendant.

          MEMORANDUM OPINION AND ORDER

          Harry D. Leinenweber, Judge.

         Plaintiff Renetrice Pierre (“Pierre”) sued Defendant Midland Credit Management, Inc. (“Midland”) on behalf of a class of plaintiffs (Count I) and herself individually (Count II), alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Pierre now moves for summary judgment as to liability on both counts. (Pl.'s Mot., ECF No. 68.) Midland moves to strike (Def.'s Mot. to Strike, ECF No. 79) certain paragraphs from the documents Pierre files in support of her Motion. For the reasons stated herein, the Court grants Pierre's Motion for Summary Judgment and denies Midland's Motion to Strike.

         I. BACKGROUND

         Sometime in 2006 or 2007, Pierre opened and began to use a credit card account with Target National Bank (“TNB”). (Pl.'s Statement of Facts (“SOF”), ECF No. 70 ¶ 11; Def.'s Resps. to Pl.'s SOF, ECF No. 81 ¶ 11.) She eventually failed to pay off the balance (Pl.'s SOF ¶ 13) and later defaulted in March or April 2008. (Def.'s Resps. to Pl.'s SOF ¶ 14.) Thereafter, TNB sold the debt to Midland Funding, LLC, for which Defendant Midland Credit Management, Inc. is a debt collector. (Def.'s SOF Responses ¶¶ 7, 13.) In an effort to collect on that debt, Midland sent a dunning letter to Pierre on September 2, 2015. (Id. ¶ 17; see, Demand Let., Ex. 1 to Pl.'s Second Am. Compl. (“SAC”), ECF No. 40-1.) Pierre maintains, without contradiction by Midland, that the statute of limitations on a collection action for that debt had run by the time Midland sent the letter. (See, Pl.'s SOF ¶¶ 26-27; 735 ILCS 5/13-205.) That letter is the keystone in this case, so some description of it is necessary. The letter stated a current balance of $7, 578.57 and listed Target National Bank as the original creditor to the debt. (Demand Let.) The letter began by stating: “Congratulations! You have been pre-approved for a discount program designed to save you money.” (Id. (emphasis in original).) The letter then presented three “options”: Option 1 offered 40% off the advertised balance if Pierre paid by October 2, 2015; Option 2 offered 20% off if Pierre elected to make 12 monthly payments; and Option 3 invited Pierre to call Midland to discuss her options and perhaps pay only $50/month on the debt. (Id.) Finally, the letter included the following disclosure:

The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it, we will not report it to any credit reporting agency, and payment or non-payment of this debt will not affect your credit score.

Id.

         II. DISCUSSION

         Pierre filed this action alleging that Midland violated the Fair Debt Collection and Practices Act, 15 U.S.C. § 1692, et seq. (the “FDCPA”). She pressed both individual claims and putative class claims, and on April 21, 2017, the Court certified a class of all persons with Illinois addresses to whom Midland sent, from March 7, 2015 through March 7, 2016, a letter containing the disclosure laid out above. (See, generally, Mem. Op. and Order, Apr. 21, 2017, ECF No. 59.)

         This opinion now rules on two Motions before the Court: Pierre's Motion for Summary Judgment as to liability on both Count I (class claims) and Count II (individual claims), and Midland's Motion to Strike certain statements from the documents supporting Pierre's Motion. The Court addresses these in reverse order, and, for the reasons stated below, denies Midland's Motion to Strike and grants Pierre's Motion for Summary Judgment as to liability.

         A. Midland's Motion to Strike

         To establish a prima facie case for an FDCPA violation, a plaintiff must demonstrate (among other things, discussed below at Part II.B.1) that she incurred a debt arising from a transaction entered for personal, family, or household purposes. 15 U.S.C. § 1692a(5); Pantoja v. Portfolio Recovery Assocs., LLC, 78 F.Supp.3d 743, 745 (N.D. Ill. 2015) (hereafter, “Pantoja I”) aff'd, 852 F.3d 679 (7th Cir. 2017) (hereafter, “Pantoja II”). Midland moves to strike (ECF No. 79) certain paragraphs from Pierre's declaration (ECF No. 72-3) and her Statement of Facts (ECF No. 70), asserting that these paragraphs state legal conclusions and not facts. Midland further suggests that if these paragraphs are struck as it requests, the result will be “fatal” to Pierre's lawsuit. (Pl.'s Mot. to Strike ¶ 2.) In the paragraphs at issue, Pierre states: “From 2007 to 2008, I used the TNB Card for personal, family, household items for me and my son. I never used the TNB Card for anything other than personal, family, household items, including for any business purpose” (Pierre Decl., ECF No. 72-3 ¶¶ 4-5), and “[I] used the TNB Card only for personal, family, household purposes.” (Pl.'s SOF ¶ 12.)

         These statements may be lean, but in light of relevant case law and the lack of contrary facts before the Court, they are sufficient to demonstrate Pierre's personal use of the card. In Pantoja I, the defendant made the same argument Midland makes here: that the plaintiff failed to demonstrate he accumulated the at-issue debt for personal purposes. Pantoja I, 78 F.Supp.3d at 745-46. The Pantoja plaintiff never actually used the credit card in question, but had accumulated debt assessed from activation and late fees on the card. Id. The court found that the plaintiff had adequately demonstrated a consumer (i.e., personal purpose) debt because undisputed evidence showed that the card was issued to the plaintiff personally, and no evidence in the record “even remotely suggest[ed]” that the card was issued for anything other than household purposes. Id. at 746. In another FDCPA case, the plaintiff noted in her deposition that she used her credit to buy “gas, clothes, things like that.” Gomez v. Portfolio Recovery Assocs., LLC, No. 15 C 4499, 2016 WL 3387158, at *2 (N.D. Ill. June 20, 2016). The defendant protested that the plaintiff could not establish her personal use of the credit, but the defendant cited no evidence to contradict plaintiff's assertions, despite having “every opportunity” to develop its evidence on this issue at the plaintiff's deposition. Id. The court ruled that merely questioning the sufficiency of the plaintiff's evidence was not a proper basis to dispute assertions in a statement of facts and accordingly plaintiff's assertions of personal use were deemed undisputed pursuant to Local Rule 56.1. Id.

         Although the Court acknowledges that Pantoja and Gomez are not identical to the case at bar, these are differences without distinction. Pierre set forth that she used the (later defaulted-upon) card - which the parties do not dispute was issued to her personally, rather than to some business of hers - to buy household items for herself and her son, and that she never used the card for any business purpose. (Pierre Decl. ¶¶ 4-5; Pl.'s SOF ¶ 12.) Though Midland takes issue with the sufficiency of that description, Midland has not said it is untrue, nor has Midland put forward any evidence to contradict it. Gomez, 2016 WL 3387158, at *2. And as in Gomez, Midland did not pursue this issue when it had the opportunity during Pierre's deposition. Accordingly, Pierre's assertion that her debt was consumer in nature is deemed an undisputed fact. N.D.Ill. Local Rule 56.1. Midland's Motion to Strike is denied.

         B. Pierre's Motion for Summary ...


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