ORDER
Plaintiff Manuel Pantoja has brought a two count complaint against defendant Portfolio Recovery Associates, LLC alleging violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (Count I), and the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/2 (Count II). Both counts are based on a dunning letter sent tо plaintiff by defendant by which defendant sought to collect on a time-barred debt. The parties have filed cross-motions for summary judgment. For the reasons desсribed below, plaintiffs motion for summary judgment is granted as to Count I. Defendant’s motion for
BACKGROUND
In 1993 plaintiff applied for a credit card from Capital One Bank (US) N.A. He was аpproved for the card but never activated the account and never used the card. Sometime in 1998 Capital One contacted plaintiff seeking to collect unpaid annual fees, activation fees and late fees.
On April 17, 2013, defendant sent plaintiff a collection letter attempting to “settle” the debt. The letter indicates that Capital One was the original creditor and sets out various “settlement options.” The letter further provides:
We are offering to settle this account FOR GOOD! Life happens and at times you may fall behind on your commitments. We understand and are offering you the opportunity to lоck in this settlement offer with a low down payment of $60.00. If settling this account with the options that we are offering is difficult for you, give us a call.
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Please understand, we can’t help you resolve this debt if you don’t call, our friendly representatives are waiting. Because of the age of your debt, we will not sue you for it and we will not report it to any credit reporting agency.
DISCUSSION
The parties have filed cross-motions for summary judgment on Count I, and defendant also seeks summary judgment on Count II. Summary judgment is appropriate when 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(a). The movant bears the burden of establishing both elements. Becker v. Tenenbaum-Hill Assocs., Inc.,
Count I
Count I alleges that the letter is a “deceptive communication” prohibited by the FDCPA. 15 U.S.C. § 1692e(10). To establish a prima facie case under the FDCPA plaintiff must prove that he is a natural person or “consumer” who is harmed by violations of the FDCPA; that the debt arises from a transaction entered for pеrsonal, family or household purposes; that defendant is a debt collector; and that defendant has violated a provision of the FDCPA. Freeland v. Kulak,
First, there is no dispute that plaintiff is a natural person and consumer. Defendant incorrectly argues that plaintiff has nоt established that the account at
Next, defendant argues that the letter is not dеceptive on its face. This argument is specious at best. The letter does not indicate when the debt was incurred, only that “[b]ecause of the age оf your debt, we will not sue you for it and we will not report it to any credit reporting agency.” The letter is deceptive because it does not tell the consumer that the debt is time-barred and defendant cannot sue plaintiff to collect it, rather, it implies that defendant has chosen not to sue. Nor does it tell plaintiff that the effect of making (or agreeing to make) a partial payment on a time-barred debt is to revive the statute of limitations for enforcing that debt. Phillip Ross v. St. Clair Foundry Corp.,
In deciding whether a dunning letter is misleading, the court asks whether a person of modest education and limited commercial savvy would be likely to be deceived. McMahon,
Whether a dunning letter is confusing is generally a question of fact. Id.; McMahon,
The instant letter is such a communication. ' Upon receipt of the letter the only reasonable conclusion that an unsoрhisticated consumer (or any consumer) could reach is that defendant was seeking to collect on a legally enforceable debt, even if defendant indicated that it chose not to sue. Nor would a consumer, sophisticated or otherwise, likely know that a partial payment would reset the limitations period, making that consumer vulnerable to a suit on the full amount. McMahon,
Because plaintiff has established all elements of his claim, his motion for summary judgment on Count I is granted.
Count II
Count II asserts a claim under the ICFA. To establish his claim plaintiff must show: (1) a deceptivе or unfair act or promise by defendant; (2) defendant’s intent that plaintiff rely on the deceptive or unfair practice; and (3) the unfair practice occurred during the course of conduct involving trade or commerce. Wigod v. Wells Fargo Bank, N.A.,
Defendant argues that plaintiff failed to prove this claim for the same reasons that it argued plaintiff failed to establish Count I. Defendant’s arguments fails for the reasons stated above. Defendant is correct, however, that plaintiff has failed to establish any actual damage as a result of defendant’s violations. He has not established any pecuniary loss. See Aker v. Bureaus Inv. Group, 12-3633, Slip. Op.,
CONCLUSION
• For the reasons set forth above, plaintiffs motion for summary judgment is granted on Count I as to liability. Defendant’s cross-motion for summary judgment on Count II is granted. This matter is set for a prove-up of damages and attorney fees on February 19, 2015, at 9:00 a.m. All documents in support of the prove-up are to be filed by February 12, 2015.
Notes
. Plaintiff's one paragraph motion indicates that he is moving for summary judgment on both counts. His briefs indicate, however, that he seeks summary judgment on Count I only.