United States District Court, N.D. Illinois, Eastern Division
RENETRICE R. PIERRE, Individually and on Behalf of others Similarly Situated, Plaintiff,
MIDLAND CREDIT MANAGEMENT, INC., a Kansas Corporation, Defendant.
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge.
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.
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
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.
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.)
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.
Midland's Motion to Strike
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.)
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.
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.
Pierre's Motion for Summary ...