Lee Momient v. Northwest Collectors, Inc.
666 F. App'x 531
| 7th Cir. | 2016Background
- Momient sued Northwest Collectors after receiving about 40 autodialed calls to his cell phone from Nov 2011–May 2012, alleging violations of the TCPA, FDCPA, FCRA, and several Illinois tort/statute claims.
- He alleges he told Northwest in the first call (Nov. 2011) to stop calling and disputed the debt; he also sent a fax and a certified-mail letter disputing the debt and demanding verification and cessation of calls.
- Northwest produced blank, undated form validation notices and an assertion that the certified-mail envelope it received was empty; Momient produced his letter and swore he never received validation notices.
- During discovery Momient was briefly noncompliant (late Rule 36 answers; missed/rescheduled depositions), the court deemed admissions and compelled deposition; Momient later sat for deposition and opposed summary judgment with a declaration.
- At a hearing the district court dismissed the case on unclear grounds—appearing to fault Momient for failing to prosecute and for delaying—while Northwest argued summary judgment was warranted based on deemed admissions and documentary evidence.
- The Seventh Circuit vacated dismissal as unjustified and remanded: it affirmed dismissal/summary judgment on several claims (FCRA and Illinois-law torts/statute) but reversed dismissal of TCPA and FDCPA claims, finding genuine fact disputes for a jury.
Issues
| Issue | Momient's Argument | Northwest's Argument | Held |
|---|---|---|---|
| Whether district court lawfully dismissed for failure to prosecute | Momient said he complied after orders, sat for deposition, responded to summary judgment; judge misattributed delay and did not consider lesser sanctions | Northwest said Momient delayed, ignored court-ordered conference, merited dismissal/sanctions | Reversed: dismissal for failure to prosecute was unjustified; lesser sanctions had been effective and record lacked contumacious conduct |
| Whether summary judgment on TCPA claim was appropriate (consent to autodial calls) | Momient: did not consent to calls re: debt and revoked any prior consent when he demanded calls stop; he never received validation notices | Northwest: Momient provided cell number to hospital (implied consent); admissions and envelope evidence show no revocation and compliance | Reversed as to TCPA: factual disputes (consent and revocation) preclude summary judgment; claim remanded for jury |
| Whether summary judgment on FDCPA claims (cease communications and failure to validate) was appropriate | Momient: he sent written dispute/cease notices (certified mail and fax) and never received §1692g validation; therefore calls continued unlawfully | Northwest: it sent validation notices and did not receive a written cease request (envelope was empty); Rule 36 admissions undermined some damages allegations | Reversed in part: genuine issues whether Momient sent valid written disputes/cease requests and whether validations were sent; remanded for trial on FDCPA claims |
| Whether FCRA and Illinois state-law claims survive summary judgment | Momient: furnisher failed to investigate after disputes; Consumer Fraud and tort claims based on calls and alleged misrepresentations | Northwest: no private right to enforce §1681s-2(a); it reasonably investigated and Momient lacks damages; state claims lack causation or extreme-outrageous conduct or proof of anguish | Affirmed: FCRA §1681s-2 claims and Illinois Consumer Fraud/tort claims lack merit or requisite proof; summary judgment for Northwest on these claims affirmed |
Key Cases Cited
- Pendell v. City of Peoria, 799 F.3d 916 (7th Cir. 2015) (factors for dismissal for failure to prosecute)
- Kasalo v. Harris & Harris, Ltd., 656 F.3d 557 (7th Cir. 2011) (failure-to-prosecute dismissal is an extraordinary sanction)
- Soppet v. Enhanced Recovery Co., 679 F.3d 637 (7th Cir. 2012) (TCPA requires express consent to autodial cell phones; burden on defendant)
- Tinsley v. Integrity Fin. Partners, 634 F.3d 416 (7th Cir. 2011) (FDCPA liability for continued calls after written cease request)
- Sims v. GC Servs. L.P., 445 F.3d 959 (7th Cir. 2006) (FDCPA §1692g validation requirement)
- Purcell v. Bank of Am., 659 F.3d 622 (7th Cir. 2011) (consumers lack private right to enforce certain FCRA furnisher duties)
- Crabill v. TransUnion, LLC, 259 F.3d 662 (7th Cir. 2001) (causation/damages requirement for FCRA-related claims)
- Swearnigen-El v. Cook County Sheriff's Dep't, 602 F.3d 852 (7th Cir. 2010) (elements of intentional infliction of emotional distress)
- Simstad v. Scheub, 816 F.3d 893 (7th Cir. 2016) (district court discretion in relieving deemed admissions under Rule 36)
- United States v. Funds in Amount of One Hundred Thousand One Hundred and Twenty Dollars ($100,120), 730 F.3d 711 (7th Cir. 2013) (self-serving affidavit testimony can defeat summary judgment)