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Richardson v. Diversified Consultants, Inc.

United States District Court, N.D. Illinois, Eastern Division

July 17, 2019

RANDY RICHARDSON, Plaintiff,
v.
DIVERSIFIED CONSULTANTS, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         Before the Court is Plaintiff's motion for summary judgment [31] and Defendant's cross-motion for summary judgment [41]. For the reasons set forth below, Plaintiff's motion for summary judgment [31] is denied and Defendant's cross-motion for summary judgment [41] is granted. Judgement shall be entered against Plaintiff and in favor of Defendant. Civil case terminated.

         I. Background

         Plaintiff Randy Richardson, a former customer of Verizon [43 (Def.'s Stmt. of Facts), at ¶ 1], brings this action under the Fair Debt Collection Practices Act (“FDCPA”) based on a letter sent to him regarding an alleged debt associated with his Verizon account. Plaintiff is a natural person who used the account associated with the alleged debt solely for personal purposes and did not use the account to buy goods for resale. [32 (Pl.'s Stmt. of Facts), at ¶ 6.] Defendant Diversified Consultants, Inc. (“Diversified”) is a Florida corporation that maintains a registered agent in Illinois. [Id. at ¶ 2.] The alleged debt consisted of Plaintiff's unpaid expenses for goods and services used for personal, family, or household purposes owed to Verizon, which went unpaid due to Plaintiff's financial difficulties. [Id. at ¶ 7.] The alleged debt was defaulted at the time Defendant was hired or retained for collection. [Id. at ¶ 9.]

         Defendant contends that Plaintiff entered into an agreement titled “My Verizon Wireless Costumer Agreement” on December 6, 2013 (the “Agreement”). [43 (Def.'s Stmt. of Facts), at ¶ 1.] However, the Agreement does not include Plaintiff's name, account number, or signature. [46 (Pl.'s Resp. to Def.'s Stmt. of Facts), at ¶ 1.] Meryl Friedman, a senior paralegal at Verizon Corporation Resources Group LLC, submitted an affidavit averring that it is Verizon's policy to provide each subscriber a copy of the customer agreement prior to the initiation of service. [43-1 (Freidman Aff.), at ¶ 5.] According to the affidavit, the customer agreement associated with Plaintiff's account provided that one method by which a customer accepts the terms of the agreement is by activating his service. [Id.] Verizon's records indicate that Plaintiff activated his service on December 6, 2013. [Id. at ¶ 6.] Attached as an exhibit to the affidavit is a correspondence dated January 8, 2014 that was mailed to Plaintiff following the initiation of service for his account and that enclosed a copy of the Agreement. [Id.; 43-1 (Def.'s Ex. A-2), at 9-10.] The Agreement provides that if a customer “fail[s] to pay on time and Verizon Wireless refers [the] 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 percent.” [43 (Def.'s Stmt. of Facts), at ¶ 7.]

         Plaintiff failed to make all agreed payments to Verizon pursuant to the Agreement. [43 (Def.'s Stmt. of Facts), at ¶ 6.] Verizon placed Plaintiff's account with Defendant for collection on January 27, 2016 with a balance of $726.89. [43 (Def.'s Stmt. of Facts), at ¶ 8.] Pursuant to the terms of the Agreement, [1] the $726.89 balance placed with Defendant included an 18% collection fee on the $616.01 principal balance, or $110.88. [Id. at ¶ 9.] This collection fee was immediately due at the time of the referral to Defendant and entailed no discretion by Defendant. [Id.] Defendant charges Verizon an 18% commission on collected accounts. [Id. at ¶ 10.] Defendant contends that the collection fee assessed to Plaintiff's account by Verizon was to reimburse it for this cost. [Id.] Verizon reported Plaintiff's account to the credit reporting agencies with an open balance of $616.01, which was the outstanding principal balance owed on the account at the time the account was assigned to collection. [Id. at ¶ 11.] Verizon does not include collection costs in its reporting of accounts. [Id.]

         On January 29, 2016, Defendant mailed a letter regarding Plaintiff's account to Plaintiff at 843 Staghorn Lane, Apartment 301, North Aurora, Illinois 60542-1443. [Id. at ¶ 12.] The letter provided Plaintiff's account number with Verizon, a “Principal Balance” of $616.01, “Collection Costs” of $110.88, and a “Current Balance” of $726.89. [Id.] Plaintiff resided at that address and received the letter.[2] [Id.] On May 27, 2016, Defendant mailed a second letter to Plaintiff (hereinafter, the “Letter”) regarding the account at the same address. [Id. at ¶ 13.] The Letter provided a “Current Balance” of $726.89. [Id.]

         When asked what this lawsuit was about during his deposition, Plaintiff testified that it was about Defendant sending him a letter regarding a debt he already had paid. [43-3 (Pl.'s Dep. Tr.), at 6:22-8:14.] Plaintiff made similar statements throughout his deposition. [Id. at 34:9-19, 40:6-18, 41:18-23, 60:23-61:13, 88:3-7.] Plaintiff disputes Defendant's characterization of this testimony but fails to explain how Defendant's characterization is inaccurate. [46 (Pl.'s Resp. to Def.'s Stmt. of Facts), at ¶ 14.] Instead, Plaintiff cites to a portion of Plaintiff's deposition testimony in which Plaintiff testified that his receipt of the Letter caused him stress because he did not believe that he owed the money. [Id.]

         II. Legal Standard

         Summary judgment is appropriate “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(a). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining summary judgment motions, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). However, the Court will not draw inferences that are “supported by only speculation or conjecture, ” Williams v. Brooks, 809 F.3d 936, 944 (7th Cir. 2016) (quoting Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008)) (internal citations omitted), and “[c]onclusory allegations alone cannot defeat a motion for summary judgment.” Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 892 (7th Cir. 2003). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).[3]

         Summary judgment is proper where “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.” Gibbs v. Lomas, 755 F.3d 529, 536 (7th Cir. 2014) (quoting Jewett v. Anders, 521 F.3d 818, 821 (7th Cir. 2008)). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).

         “Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials that ‘set forth specific facts showing that there is a genuine issue for trial.'” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008) (quoting Fed.R.Civ.P. 56(e)); see also Anderson, 477 U.S. at 250. 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. v. Catrett, 477 U.S. 317, 323 (1986). In evaluating a motion for summary judgment, the Court will construe all facts in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of the nonmoving party. Bell v. Taylor, 827 F.3d 699, 704 (7th Cir. 2016).

         III. Analysis

         A. ...


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