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Lampert v. Weltman, Weinberg & Reis Co., LPA

United States District Court, C.D. Illinois

January 9, 2020

DEBBIE H. LAMPERT, Plaintiff,
v.
WELTMAN, WEINBERG & REIS CO., L PA, Defendant.

          ORDER AND OPINION

          JAMES E. SHADID, UNITED STATES DISTRICT JUDGE

         This matter is now before the Court on Defendant's Motion (Doc. 18) for Summary Judgment. Plaintiff has filed a Response (Doc. 21), to which Defendant has filed a Reply (Doc. 22). For the reasons set forth below, Defendant's Motion (Doc. 18) is GRANTED.

         Background

         Plaintiff, Debbie Lampert, alleges in her Complaint that Defendant, Weltman, Weinberg & Reis Co., L PA (“Weltman”), violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692g et seq., when it failed to cease collection activities following Plaintiff's request for verification of the debt. Doc. 1. Under the FDCPA, if a consumer notifies a debt collector in writing within the 30-day period following the debt collector's initial communication to the consumer that the debt is disputed, or the consumer requests verification of the debt, the debt collector must cease collection of the debt until the debt collector obtains and sends the consumer verification of the debt. 15 U.S.C. § 1692g(b).

         The following facts are undisputed by the parties. Plaintiff incurred a financial obligation to Discover Bank and defaulted on that debt some time in 2017. On November 3, 2017, Discover Bank placed the account balance owed of $5, 553.04 with Weltman for collection of the past due amount. On November 22, 2017, Weltman sent Plaintiff an initial collection letter seeking to collect the debt owed to Discover Bank. Plaintiff alleges in her Complaint that on November 27, 2017, she mailed Weltman a letter to dispute the validity of the debt and to seek verification of the debt.[1] On February 2, 2018, Weltman filed a collection lawsuit in the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois captioned as Discover Bank v. Debbie H. Lampert, 2018 S.C. 137 (the “collection lawsuit”). The collection lawsuit stated that the amount due and owing was the sum of $5, 553.04 and attached a copy of the Discover Card Account Summary showing the same amount owed. Doc. 21, at 2.

         Between November 22, 2017, when Weltman sent an initial collection letter to Plaintiff, and February 2, 2018, when Weltman filed a collection lawsuit on behalf of Discover Bank, Weltman did not send correspondence to Plaintiff with verification of her debt. Plaintiff claims in her Response to Defendant's Motion for Summary Judgment that on December 1, 2017 at 11:04 a.m., she faxed a three-page document to Weltman's fax number of (216) xxx-4121 from Plaintiff's fax number of (309) xxx-1939. Plaintiff has produced an alleged fax confirmation transmission page dated December 1, 2017 together with an unsigned two-page letter addressed to Weltman.[2] Doc. 21, at 3; Doc. 18-6.

         Legal Standard

         Summary judgment is appropriate where the movant shows, through “materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations … admissions, interrogatory answers, or other materials” 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. In resolving a motion for summary judgment, “[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

         In order to withstand a motion for summary judgment, the nonmovant must “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). When presented with a motion for summary judgment, the Court must construe the record “in the light most favorable to the nonmovant and avoid[] the temptation to decide which party's version of the facts is more likely true.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). If the evidence, however, is “merely colorable, or is not significantly probative or merely raises ‘some metaphysical doubt as the material facts,' summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50. Thus, in order to overcome the undisputed facts set forth in a defendants' motion for summary judgment, a plaintiff cannot rest on the allegations in his complaint but must point to affidavits, depositions or other evidence of an admissible sort that a genuine dispute of material fact exists between parties. Fed.R.Civ.P. 56(e)(2); Behrens v. Pelletier, 516 U.S. 299, 309 (1996).

         Discussion

         (1) Whether Plaintiff Submitted a Request for Verification to Weltman

         The Court first addresses whether Plaintiff submitted a request for verification to Weltman, beginning with the factual allegations in Defendant's Motion that Plaintiff asserts are disputed. Defendant asserts that Weltman did not send correspondence to Plaintiff with verification of her debt because Weltman has no record of receiving any verification request from Plaintiff. Doc. 18, at ¶8. Plaintiff asserts this fact is disputed because, “[a]lthough Weltman has no record of receiving Plaintiff's dispute and request for verification, Plaintiff did in fact send a dispute and request for verification to Weltman via fax to Weltman's fax number.” Doc. 21, at 5. Defendant's statement relates to whether Weltman has a record of Plaintiff's verification request, not whether Plaintiff actually sent the request or whether Weltman actually received the request. Therefore, the statement of fact is not properly disputed by Plaintiff, and the Court will consider it as undisputed.

         Defendant also asserts that AT&T, Weltman's telephone and fax service provider, responded to Plaintiff's third-party subpoena to produce all call details (incoming and outgoing) related to fax number (216) xxx-4121 from November 1, 2017 through December 31, 2017, and that AT & T 's records do not show that Weltman received any call from Plaintiff's fax number on December 1, 2017 at 11:04 a.m. Doc. 18, at ¶ 10. Plaintiff's response to this proposed statement of fact is set forth in its entirety below.

Basis for Dispute: According to the fax confirmation sheet, Plaintiff sent the fax to Weltman's fax number (216) xxx-4121 on December 1, 2017 at 11:04 a.m. and the fax took 1 minute and 31 seconds to transmit. (Ex. 6). At 11:06 a.m., Plaintiff received confirmation that the fax was successfully delivered to Weltman's fax number (216) xxx-4121. (Ex. 6; Ex. 5, at 53:17- 19). AT&T's records indicate that Weltman received a total of three faxes at 16:06 Coordinated Universal Time (UTC), which is expressed in military time. (Ex. 7, at Lampert 000012 and Lampert 000028). The 16:06 UTC reflected on AT&T's records converts to 11:06 a.m. Central Standard Time (CST), the precise time Plaintiff's fax machine issued the fax confirmation sheet. (Ex. 6, Ex. 7, at Lampert 000012 and Lampert 000028). ...

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