Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Zachial v. Cascade Capital, LLC

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

September 30, 2019

FLORENCE ZACHIAL, Plaintiff,
v.
CASCADE CAPITAL, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          Andrea R. Wood United States District Judge.

         Plaintiff Florence Zachial has sued Cascade Capital, LLC (“Cascade”), alleging two violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p. Specifically, Zachial claims that Cascade violated the FDCPA by contacting her after she directed it to cease its communications (Count I) and by contacting her even though it knew she was represented by counsel (Count II). Cascade has now moved for judgment on the pleadings as to both counts. (Dkt. No. 21.) For reasons explained below, Cascade's motion is granted as to Count I but denied as to Count II.

         BACKGROUND

         Zachial is a senior citizen who lives in Illinois. (Compl. ¶ 8, Dkt. No. 1.) She has a limited income and was unable to pay a debt she allegedly owed to Santander Consumer USA (“Santander”). (Id.) To help with her financial issues, Zachial obtained assistance from legal aid attorneys in Chicago. (Id. ¶¶ 8-9.) In March 2017, a legal aid attorney sent a letter to Santander stating that Zachial was represented by counsel and directing Santander to cease communications with her. (Id. ¶ 9; Compl. Ex. C, Dkt. No. 1-3.)

         Sometime after the legal aid attorney sent that letter to Santander, the company sold the right to collect Zachial's alleged debt to Cascade. (Compl. ¶ 10.) According to Zachial, Cascade knew from the “account notes” it received from Santander that Zachial was represented by counsel and that she had demanded that she not be contacted. (Id.) Nonetheless, Cascade had a third-party debt collector, MRS Associates, send Zachial a collection letter in February 2018 demanding payment of the debt she originally owed Santander. (Id.; Compl. Ex. D, Dkt. No. 1-4.)

         After receiving the February 2018 collection letter, Zachial retained new counsel and brought this lawsuit against Cascade. According to the complaint, Cascade violated the FDCPA by (1) contacting her after she demanded that Santander stop contacting her, and (2) contacting her even though it knew she was represented by counsel with respect to the alleged debt. Cascade answered the complaint and then moved for judgment on the pleadings.

         DISCUSSION

         Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” As with a motion to dismiss for failure to state a claim brought under Federal Rule of Civil Procedure 12(b)(6), “to survive a motion for judgment on the pleadings, a complaint must ‘state a claim to relief that is plausible on its face.'” Wagner v. Teva Pharm. USA, Inc., 840 F.3d 355, 357-58 (7th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court “draw[s] all reasonable inferences and facts in favor of the nonmovant, but need not accept as true any legal assertions.” Wagner, 840 F.3d at 358.

         I. Count I

         The FDCPA regulates how debt collectors may communicate with consumers.[1] Among other requirements, the FDCPA provides that if “a consumer notifies a debt collector in writing . . . that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt.” 15 U.S.C. § 1692c(c). Zachial claims that Cascade violated this provision by sending her a collection letter after she informed Santander, the original creditor, that she wanted Santander to cease contact with her.

         Section 1692c(c), however, only restricts a debt collector's communications with the consumer if the consumer “notifies the debt collector in writing” that she wants the debt collector to cease contacting her. Id. § 1692c(c) (emphasis added). By Zachial's own admissions, she only asked the original creditor-not the debt collector-to cease contacting her. (Compl. ¶¶ 9-11; Compl. Ex. C.) Indeed, Zachial does not claim that she ever notified Cascade that she wished it to cease contact with her.

         Zachial's primary argument for why Cascade nonetheless violated § 1692c(c) is that, as Santander's assignee, Cascade was “subject to all of the same information on Ms. Zachial's putative debt” that Santander had. (Pl.'s Resp. in Opp'n to Mot. for J. on the Pleadings at 6, Dkt. No. 30.) To support this argument, Zachial points to the Illinois common law principle that an assignee generally assumes the assignor's rights and obligations. See, e.g., PRA III, LLC v. Hund, 846 N.E.2d 965, 972 (Ill.App.Ct. 2006) (creditor's assignee may charge the same interest rate as the creditor); Cmty. Bank of Greater Peoria v. Carter, 669 N.E.2d 1317, 1321 (Ill.App.Ct. 1996) (mortgagee's assignee has right to insurance proceeds for preassignment property damage); Carlyle v. Jaskiewicz, 464 N.E.2d 751, 756 (Ill.App.Ct. 1984) (cotenant's assignee must, under some circumstances, pay contribution to cotenants for unpaid preassignment costs). But by its plain language, § 1692c(c) only imposes a duty on a debt collector when the consumer has contacted the debt collector, not when the consumer has contacted the original creditor.[2] Because the statute's language is plain, this Court must enforce it according to its terms. Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 680 (7th Cir. 1997).

         Moreover, this Court is aware of no case law suggesting that either common law principles or the FDCPA would impute a creditor's knowledge that the consumer has asked it to cease contact to the debt collector. In fact, while considering a different section of the FDCPA, the Seventh Circuit cast doubt on the idea that information may be imputed from the creditor to the debt collector, because in the FDCPA Congress placed obligations on debt collectors but not on creditors. See Randolph, 368 F.3d at 729-30. Thus, because the pleadings establish that Zachial only asked Santander, not Cascade, to cease contact with her, Cascade's motion for judgment on the pleadings is granted as to Count I.

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.