United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL UNITED STATES DISTRICT JUDGE.
case involves a remarkably small amount of disputed charges,
specifically $390, from five years ago, which have led to
this federal case and the current cross-motions for summary
judgment on Plaintiff Javari Keys' complaint, which
alleges violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et
seq., and the Illinois Collection Agency Act
(“ICAA”), 225 ILCS 452/1 et seq. For the
reasons explained below, Keys' motion (Dkt. 27) is
granted in part and denied in part, and Defendant Collection
Professionals, Inc.'s cross-motion (Dkt. 34) is granted
in part and denied in part.
following facts are drawn primarily from the parties'
Local Rule 56.1 statements (Dkt. 29), (Dkt. 33), (Dkt. 39),
and are largely undisputed unless otherwise noted.
Javari Keys incurred charges for medical services on two
accounts from Sarah Bush Lincoln Health System - Physicians
First (“Physicians First”). (Dkt. 33) at ¶
35. According to his declaration and deposition, Keys and his
family visited Physicians First for personal purposes. (Dkt.
29-2) at ¶ 2; (Dkt. 33-1) (J. Keys Dep.) at 30:3-21.
Keys could not pay two bills - one for $218 and one for $172
-- and so his accounts went into default. (Dkt. 29) at ¶
7. While it held Keys' debts, Physicians First did not
charge him interest. Id. at ¶ 16. In 2013,
Physicians First assigned the defaulted debts to-or
“placed them for collection” with- Defendant
Collection Professionals, Inc. (“CPI”).
Id. at ¶ 8. Specifically, CPI purchased one
account with a balance due of $218 on September 24, 2013, and
it purchased the second account with a balance due of $172 on
October 16, 2013. (Dkt. 33) at ¶¶ 38, 42. CPI is a
licensed debt collection agency in Illinois, and it acts as a
“debt collector” as defined by the FDCPA.
Id. at ¶¶ 2-3. There was no contract
between CPI and Physicians First that allowed CPI to charge
interest on Keys' accounts. Id. at ¶ 16.
CPI's practice and policy to send an initial collection
letter that includes validation language under § 1692g
of the FDCPA and also notifies the consumer that balances
remaining after 30 days “may have interest added to
them as permitted by law.” (Dkt. 33) at ¶ 28.
Internally, CPI refers to this as “SN10, ” and it
is automatically generated for every new account.
Id. at ¶ 39. Then, per its policy, CPI charges
5% interest 35 days after “placement of the
account” and begins to report the account-both the
principal debt and interest due-to the credit reporting
agencies 60 days after “placement” if the account
is not paid. Id. at ¶¶ 29-31. In line with
these practices and policies, CPI sent Keys an SN10 on
September 25, 2013 after receiving his first account, but the
letter was returned to CPI and not received by Keys.
Id. at ¶¶ 39, 41; see (Dkt. 29-4)
(S. Edwards Dep.) at 11:16-18, 12:8-9. The return was
recorded in CPI's notes for Keys' account with CPI.
No SN10 was sent out regarding Keys' second account;
CPI's system “suppressed” it because of the
return of the previous letter. (Dkt. 33) at ¶ 43; (Dkt.
29-4) at 45:5-13. CPI's CEO, serving as its corporate
representative, testified that it “could not send out
letters to accounts if they're marked mail return. The
letter gets suppressed. We're not sending letters to bad
addresses.” (Dkt. 29-4) at 45:7-9. However, over the
course of the next two years, CPI acquired different
addresses for Keys and attempted to send him at least seven
various other notices that referenced both accounts placed
for collection. No other initial collection letters, or
SN10s, were mailed. Id. at 11:16-14:9. Further,
there is no dispute that CPI reported Keys' delinquent
accounts to the credit reporting agencies, although, despite
CPI's stated practice of reporting both the principal and
interest due on such accounts, there is no evidence in the
record that CPI reported anything other than the principal
amounts due. See (Dkt. 33) at ¶ 44; (Dkt. 39)
at ¶ 19.
sent Keys a notice dated October 15, 2015, and Keys received
it. Id. at ¶ 48. The letter provided Keys'
CPI account number and itemized Keys' two accounts (or
“previous debts”) with Physicians First-the first
with a principal balance of $218 and the second with a
principal balance of $172. The letter also noted interest
associated with those accounts, $12.57 and $9.92
respectively, making Keys' total “amount
owed” $412.49. See (Dkt. 1-1) at 10 (Oct. 15,
2015 Letter); see also (Dkt. 29) at ¶¶
13-15. The letter further stated: “[b]efore proceeding
with our collection efforts we would like to request that you
pay the entire amount due or call our office to make other
arrangements.” Id. Keys did not contact CPI or
pay the amount due. (Dkt. 33) at ¶¶ 49-50. Instead,
Keys sought legal representation. Id. at ¶ 51.
the alleged debts still outstanding, in November 2015, a CPI
collection agent recommended that litigation be initiated to
collect the debt. Id. at ¶ 45. Because CPI has
a policy not to report interest accrued on any debts
considered for litigation, on November 23, 2015, CPI
communicated two outstanding accounts for Keys to
credit-reporting agency TransUnion without interest: (1) $218
and (2) $172, for a total of $390. (Dkt. 29) at ¶ 20;
(Dkt. 33) at ¶¶ 20, 32, 46-47. In January 2016, CPI
communicated the same two outstanding amounts and total debt
of $390 to Experian. (Dkt. 29) at ¶ 22. Although
Keys' counsel ordered his TransUnion credit report, Keys
testified that he ordered his Experian report, which cost
$11.50. The parties, however, dispute the purpose for which
Keys ordered the Experian report. CPI argues that Keys
ordered the report in preparation of filing bankruptcy; Keys
argues that he ordered the report to verify the alleged debt
held by CPI after receiving the October 2015 collection
on August 30, 2016, Keys filed the instant lawsuit.
See (Dkt. 1). In Count I of his complaint, Keys
alleges that CPI violated three separate sections of the
FDCPA: Keys contends that CPI added interest to his debt that
was not authorized by Keys' contract with Physicians
First or permitted by law in violation of 15 U.S.C. §
1692f and § 1692e(8) and then reported the debt
without interest to TransUnion and Equifax, meaning
that CPI misrepresented the amount of the debt by attempting
to collect multiple amounts of the same debt in violation of
15 U.S.C. § 1692e. In Count II, Keys alleges that CPI
violated the ICAA by attempting to collect interest to which
it was not entitled and also by conveying varying balances
due on the alleged debt to Plaintiff and the credit reporting
agencies in violation of 225 ILCS 425/9(a). To date,
Plaintiff has not made any payments on his alleged debt.
(Dkt. 29) at ¶ 19. Plaintiff seeks $11.50 in actual
damages for obtaining his credit report, statutory damages of
$1, 000, and reasonable attorneys' fees on his FDCPA
claim, and compensatory and punitive damages on his ICAA
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(c); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). A genuine issue of
material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. The party
seeking summary judgment has the burden of establishing the
lack of any genuine issue of material fact. See Celotex
Corp., 477 U.S. at 323. In ruling on a motion for
summary judgment, the court must consider the record as a
whole, in a light most reasonable to the non-moving party,
and draw all reasonable inferences in favor of the non-moving
party. Anderson, 477 U.S. at 255. To survive summary
judgment, a party cannot rely on his pleadings and
“must set forth specific facts showing that there is a
genuine issue for trial.” Id. at 248. When
there are cross motions, the court should “construe the
evidence and all reasonable inferences in favor of the party
against whom the motion under consideration is made.”
Premcor USA, Inc. v. Am. Home Assurance Co., 400
F.3d 523, 526-27 (7th Cir. 2005).
The Fair Debt Collection Practices Act Claim (Count
FDCPA was enacted “to eliminate abusive debt collection
practices, to ensure that debt collectors who abstain from
such practices are not competitively disadvantaged, and to
promote consistent state action to protect consumers.”
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich
LPA, 559 U.S. 573, 577 (2010) (citing 15 U.S.C. §
1692(e)); see also Henson v. Santander Consumer USA,
Inc., 137 S.Ct. 1718, 1720 (2017) (the FDCPA aims to
deter “wayward debt collection practices” that
disrupt debtors' lives). A plaintiff who prevails on an
FDCPA claim is entitled to “(1) any actual damage
sustained by such person as a result of [a debt
collector's failure to comply with the FDCPA], ” ...