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Rongey v. Anselmo Lindberg & Associates LLC

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

September 12, 2019

WILLIAM R. RONGEY, individually, and on behalf of all others similarly situated, Plaintiff,
v.
ANSELMO LINDBERG & ASSOCIATES, LLC, Defendant.

          James C. Vlahakis Mohammed O. Badwan Counsel for Plaintiff

          MOTION FOR ENTRY OF JUDGMENT

          Honorable Judge Jorge L. Alonso

         NOW COMES the Plaintiff, WILLIAM R. RONGEY (“Plaintiff”), by and through his undersigned counsel, and pursuant to Fed.R.Civ.P. 68, seeking the entry of judgment against Defendant ANSELMO LINDBERG & ASSOCIATES, LLC (“Anselmo”), and in support thereof, stating as follows:

         I. Background

         1. On July 3, 2018, Plaintiff filed a class action complaint seeking redress for Anselmo's violations of the Fair Debt Collection Practices Act (“FDCPA”). [Complaint, Dkt. 1]

         2. Specifically, Plaintiff alleged that Anselmo violated the Sections 1692e, e(2), e(5), and e(10) of the FDCPA by falsely implying that late charges can be assessed against Plaintiff's mortgage loan, when in fact no such charges can be assessed as a matter of law. [Dkt. 1, ¶¶ 18-20, 32]

         3. The collection of late fees after a mortgage note has been accelerated is impermissible. See Rizzo v. Pierce & Assocs., 351 F.3d 791, 793 n.1 (7th Cir. 2003) (citing sixteen cases for the proposition that “a lender cannot demand payment of late fees for failure to make monthly payments after the loan has been accelerated.”) [Dkt. 1, ¶32]

         4. The underlying logic of these cases is simple: once the borrower is in default and the loan is accelerated, the full amount of the loan becomes due immediately, and there remains no obligation by the borrower to continue making monthly payments. In the absence of an obligation to make monthly payments, payments cannot be “late.” Id. [Dkt. 1, ¶32]

         5. Anselmo declined to file a motion to dismiss the Complaint and answered on September 13, 2018. [Dkt. 18]

         6. Recognizing that this case was filed as a class action, Anselmo's Third Affirmative Defense to its Answer stated that “additional affirmative defenses may exist as to individual class members in the event (and to the extent) a class is certified”. Anselmo's Third Affirmative Defense listed six (6) purported affirmative defenses: “the Voluntary Payment Doctrine, res judicata, litigation privilege, the Rooker-Feldman Doctrine, class members who filed for Chapter 7 bankruptcy, estoppel, and other individual defenses not presently known.” [Dkt.18, pg. 19]

         II. Discovery and Efforts to Resolve the Case

         7. The parties issued discovery. Notably, Plaintiff asked Anselmo to fully explain the factual basis for its Third Affirmative Defense. Plaintiff found that Anselmo's original discovery answers were deficient and thereafter Plaintiff prepared a lengthy Local Rule 37.2 email which resulted in Anselmo issuing supplemental answers. Yet again, Anselmo's supplemental discovery answers were deficient and Plaintiff sent a detailed Local Rule 37.2 email to Anselmo's counsel. This resulted in a second supplemental discovery response and a third Local Rule 37.2 email to Anselmo's counsel. Anselmo's 30(b)(6) deponent clarified and offered to amend prior discovery answers which resulted in Anselmo issuing a third supplemental discovery response. This third supplemental discovery response provided a detailed breakdown of the numbers of persons that it alleged were susceptible to the previously asserted affirmative defenses.

         8. Plaintiff answered discovery and was deposed.

         9. Anselmo did not move for summary judgment after the ...


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