United States District Court, N.D. Illinois
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN, United States District Court Judge
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”). 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.
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
(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.
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.
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,
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
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.
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.
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 ...