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Bibbins v. McCarthy, Burgess & Wolff, Inc.

United States District Court, N.D. Illinois

March 29, 2018

JENNIFER BIBBINS and JORGE FLORES, Plaintiff,
v.
MCCARTHY, BURGESS &, WOLFF, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          SHARON JOHNSON COLEMAN, United States District Court Judge

         Plaintiffs, Jennifer Bibbins (“Bibbins”) and Jorge Flores (“Flores”) both move for summary judgment pursuant to Federal Rule of Civil Procedure 56 on their claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”).[1] Defendant, McCarthy, Burgess & Wolff, Inc. (“MBW”) filed a cross-motion for summary judgment pursuant to Flores' FDCPA and Illinois Collection Agency Act (“ICAA”) claims. Having reviewed the Parties' submissions, for the foregoing reasons, Plaintiff's Motion for Summary Judgment is denied and Defendant's Motion is granted.

         Background

         Plaintiffs, Bibbins and Flores, are both Illinois residents who entered into contracts with Verizon Wireless (“Verizon”) for personal cell phone accounts. Of the many documents that were incorporated into the Verizon Service Contract, Flores agreed to the “My Verizon Wireless Customer Agreement, ” which provided the following information about payments for the services:

If you're a post-pay customer and we don't get your payment on time, we will charge you a late fee of up to 1.5 percent per month (18 percent per year) on the unpaid balance or a flat $5 per month, whichever is greater if allowed by law in the state of your billing address. . . . If you fail to pay on time and Verizon Wireless refers your account(s) to a third party for collection, a collection fee will be assessed and will be due at the time of the referral to the third party. The fee will be calculated at the maximum percentage permitted by applicable law, not to exceed 18%.

(Dkt. 60-4)(emphasis added). Verizon provided customers with a Spanish translation of the service agreement on the website. While Defendant contends that Bibbins signed the same agreement, Bibbins' contract was not included with any of the Parties' filings.

         Flores now disputes that he read and understood the terms of the agreement with Verizon due to his inability to speak and read English fluently. Flores, originally a Mexican Citizen, came to the United States in 1982 and has been living and working here since. He was nationalized in 1998. During Flores' deposition, he was provided a Spanish-English interpreter. When asked about his Verizon Agreement, Flores recognized the document and affirmed that he signed it with the understanding that it was his agreement with Verizon as to the phone account. (Dkt. 60-5). He also acknowledged that he reviewed the provision of the contract discussing unpaid balances and potential collection fees. Id.

         Over time, both Plaintiffs incurred debts with Verizon that they were unable to pay and so, their accounts went into default. Defendant, MBW, is an Ohio Corporation that does business in Illinois as a debt collector. Verizon calculated the amounts due and hired Defendant to collect Plaintiffs' debts on their behalf. Plaintiffs both consulted with and retained legal aid attorneys to assist with the management of their debts. Both Plaintiffs purchased their credit reports to investigate the alleged debt. The report indicated that on December 31, 2015, Flores owed Verizon a balance of $3, 087.00.

         On April 3, 2015 MBW mailed Bibbins a collection letter that included an account number, the name of the creditor, and her account balance of $1559.51 and a collection charge of $281.71- 18% of the principal balance. MBW mailed Flores a similar collection letter that indicated he owed a balance of $3, 087.10 and a collection fee of 18% of the principal, $555.67. Although they were not directed to do so by Verizon, MBW included the following statement in the letter to Bibbins:

While we cannot give you tax advice, our client may file information returns with the IRS on IRS Form 1099-C for the cancellation of $600 or more of the principal of a debt.

(Dkt 55, Ex. C.). This provision was not included in the letter to Flores. (Dkt. 60-1). MBW did not file an IRS Form 1099-C for discharged debts and is unaware of whether Verizon did after the letter was sent to Bibbins. Only a copy of the letter to Flores was included in the Parties' filings.

         In nearly identical complaints both Plaintiffs brought actions, that were later consolidated, alleging that MBW violated several provisions of FDCPA and ICAA. Bibbins and Flores provided declarations stating that because of Defendant's “deceptive and misleading collection activity” they have “suffered stress, aggravation, and humiliation.” (Dkt. 57-1, Ex. A and B). Defendant contests that they suffered any harm.

         Legal Standard

         Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating that there is no genuine issue of material fact, and if done, judgment as a matter of law should be granted in its favor. Vision Church v. Vill. of Long Grove, 468 F.3d 975, 988 (7th Cir. 2006). “To determine whether genuine issues of material fact exist, we ask if ‘the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d ...


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