53 F. Supp. 3d 1072
N.D. Ill.2014Background
- Kasalo discovered a Trident-related collection entry on a credit report in March 2012, then called Trident (initial oral communication) to dispute the debt; a follow-up validation letter from Trident (naming OPS 10 LLC as current creditor) was postmarked April 10, 2012.
- Trident's phone representatives used a script for FDCPA §1692g disclosures; parties dispute what was actually said in the call and the call was not recorded.
- OPS purchased the debt at some point, but defendants admit OPS did not own the debt at the time the April letter was sent (Rule 36 admission that was not withdrawn).
- Kasalo served his complaint on Trident within 30 days of the initial communication; the complaint expressly disputed the debt in writing and was accepted by Trident’s vice president/registered agent.
- Parties dispute when Trident began reporting to credit bureaus and whether Trident reported an incorrect date of first delinquency (Feb 6, 2009 vs. earlier dates), creating factual issues on timeliness and falsity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OPS is a "debt collector" under the FDCPA | OPS bought defaulted debts to have them collected and therefore is a debt collector | OPS merely purchases debts and hires others (Trident) to collect; it did not itself collect | OPS is not a debt collector as a matter of law; OPS summary judgment granted |
| Whether oral initial communication complied with §1692g(a) | Oral disclosures are inadequate; too voluminous and Miller forbids oral compliance | FDCPA permits oral disclosures in an initial oral communication; Trident followed its script | Court: oral disclosure permitted; disputed content of call precludes summary judgment for either party on what was said |
| Whether Kasalo provided timely written dispute under §1692g(b) | Complaint served within 30 days constituted written dispute | Complaint sent by counsel or served on registered agent insufficient | Complaint served on Trident’s VP within 30 days was written dispute; Trident failed to cease collection — plaintiff summary judgment on §1692g(b) liability granted |
| Whether Trident/OPS made false representations re: creditor status and unauthorized collection (§1692e(2)(A), §1692f(1)) | Letter falsely stated OPS was current creditor and thus collection was unauthorized | Defendants later argued OPS did own the debt when letter sent | OPS admitted it did not own the debt when letter sent; plaintiff summary judgment granted on §1692e(2)(A) and §1692f(1) against Trident/OPS (and OPS dismissed on other grounds) |
| Whether Trident reported false credit information (§1692e(8)) | Trident reported incorrect date of delinquency (or an obsolete debt) to CRAs | Defendants argue no false reporting or claims are time-barred; contradictory discovery responses about reporting start date | Genuine disputes of material fact exist about what was reported and when; summary judgment denied to both parties on §1692e(8)/related §1692e and §1692f claims |
| Whether Trident told Kasalo he had to submit dispute reasons via letter (§1692e, e(10), f) | Trident told him he had to communicate dispute reason by letter (false/improper requirement) | Defendants say no evidence supports that assertion; immaterial if said | Plaintiff failed to oppose on the evidence; court grants summary judgment to defendants on these claims |
Key Cases Cited
- Miller v. McCalla, Raymer, Padrick, Cobb, Nichols & Clark, L.L.C., 214 F.3d 872 (7th Cir.) (discussion of oral compliance with §1692g in context of inadequate phone disclosure)
- Schlosser v. Fairbanks Capital Corp., 323 F.3d 534 (7th Cir.) (purchaser-of-defaulted-debt treated as debt collector when it engages in collection)
- McKinney v. Cadleway Props., Inc., 548 F.3d 496 (7th Cir.) (purchaser of defaulted debt is a debt collector even if it owns the debt)
- Ruth v. Triumph P’Ships, 577 F.3d 790 (7th Cir.) (party that acquires defaulted debts is a debt collector; affirmative conduct in directing notices can establish collection activity)
- McMahon v. LVNV Funding, LLC, 744 F.3d 1010 (7th Cir.) (false or misleading statements actionable under §1692e only if material)
- Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323 (7th Cir.) (FDCPA violation occurs when required disclosures are confusing or overshadowed)