United States District Court, N.D. Illinois, Eastern Division
CHERYL McCOY, individually and on behalf of a class of similarly situated individuals, Plaintiff,
MIDLAND FUNDING, LLC, MIDLAND CREDIT MANAGEMENT, INC., and ENCORE CAPITAL GROUP, INC., Defendants.
MEMORANDUM OPINION AND ORDER
McCoy alleges that a collection letter she received from
Midland Credit Management, Inc. violated the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq. Doc. 1. (There are other
defendants, but the claims against them rise or fall with the
claim against Midland.) With discovery closed, the parties
cross-move for summary judgment, Docs. 36, 62, and McCoy
moves for class certification, Doc. 41. Midland's summary
judgment motion is granted, McCoy's summary judgment
motion is denied, and McCoy's class certification motion
is denied as moot.
Because summary judgment will be granted to Midland, the
facts are sets forth as favorably to McCoy as permitted by
the record and Local Rule 56.1. See Calumet River
Fleeting, Inc. v. Int'l Union of Operating Eng'rs,
Local 150, 824 F.3d 645, 647-48 (7th Cir. 2016). On
summary judgment, the court must assume the truth of those
facts, but does not vouch for them. See Donley v. Stryker
Sales Corp., 906 F.3d 635, 636 (7th Cir. 2018).
defaulted on a credit card account. Doc. 58 at ¶¶
8-9. The account's owner placed the account with Midland
for servicing, and Midland sought to collect the amount owed.
Id. at ¶¶ 11-13. Only Midland communicated
with McCoy about the account. Id. at ¶ 14.
McCoy received eighteen letters from Midland, each with
Midland's name, logo, and address at the top.
Id. at ¶ 15.
January 2015, McCoy agreed to a payment plan, but one of her
checks was returned for insufficient funds. Id. at
¶ 16. She agreed to a second payment plan in March 2015,
but again one of her checks was returned for insufficient
funds. Id. at ¶ 17. In November 2015, Midland
transferred the account to its internal collections
department. Id. at ¶ 18.
November 7, 2016, the account's owner, represented by
Midland's counsel, sued McCoy to collect on the account.
Id. at ¶ 19. On March 22, 2017, the parties
reached a settlement, and McCoy signed an agreed order
dismissing the case with leave to reinstate. Id. at
¶¶ 20-23. The agreement set out a payment plan and
provided that the suit was subject to reinstatement if McCoy
defaulted. Id. at ¶¶ 23-24. The order also
provided: “In the event of reinstatement …, [the
account owner] shall be entitled to judgment on the date of
hearing of its Motion for the balance prayed for on the
Complaint, less payments to date thereof.” Id.
at ¶ 25 (quoting Doc. 38-9 at ¶ 3). McCoy knew that
entry of a judgment could be a consequence of failing to make
payments. Id. at ¶ 29. After McCoy failed to
make the required payments, the case was reinstated on
November 7, 2017, and the court entered judgment against her
in the amount of $1, 008.62 plus costs. Id. at
then sent McCoy a letter dated December 1, 2017, the first
page of which is reproduced here:
38-12 at 1; Doc. 58 at ¶ 30.
letter began: “On November 07, 2017 a judgment was
entered against you in the amount of $1, 347.62. We have the
right to inquire regarding the existence and location of
assets, and your ability to satisfy the judgment.” Doc.
38-12 at 1. The letter then stated: “Complete the
enclosed Financial Disclosure Form and send your response [by
email or mail].” Ibid. (emphasis omitted). The
enclosed disclosure form sought McCoy's contact
information and asked nine questions about her income and
assets. Id. at 3-4; Doc. 58 at ¶ 33.
letter continued: “If you wish to resolve this matter
voluntarily, it's not too late. Call (866) 300-8750 if
you would like to discuss one of the payment options listed
below.” Doc. 38-12 at 1 (emphasis omitted). The listed
options were paying in full or agreeing to a monthly payment
plan. Ibid. The letter warned: “If we are
unable to reach a voluntary resolution with you, [the account
owner] may seek to enforce the judgment in accordance with
applicable state laws.” Ibid. (emphasis
alleges that Midland violated §§ 1692e(13) and
1692f of the FDCPA by falsely implying that the letter and
enclosed financial disclosure form were legal process. Doc.
57 at 2, 6-11. Section 1692e prohibits a debt collector from
using “any false, deceptive, or misleading
representation or means in connection with the collection of
any debt.” 15 U.S.C. § 1692e; see Ruth v.
Triumph P'ships, 577 F.3d 790, 799-800 (7th Cir.
2009). This provision, essentially a “rule against
trickery, ” Beler v. Blatt, Hasenmiller, Leibsker
& Moore, LLC, 480 F.3d 470, 473 (7th Cir. 2007),
sets forth “a nonexclusive list of prohibited
practices” in sixteen subsections, McMahon v. LVNV
Funding, LLC, 744 F.3d 1010, 1019 (7th Cir. 2014).
Although “a plaintiff need not allege a violation of a
specific subsection in order to succeed in a § 1692e
case, ” Lox v. CDA, Ltd., 689 F.3d 818, 822
(7th Cir. 2012), McCoy invokes subsection (13), which
proscribes “[t]he false representation or implication
that documents are legal process, ” 15 U.S.C. §
1692e(13). Section 1692f ...