Summary
finding that initial communication with a debtor was made by the first debt collector and not the second debt collector
Summary of this case from Senftle v. LandauOpinion
No. 99 C 7222.
February 21, 2001
MEMORANDUM OPINION AND ORDER
Pending is Plaintiffs' Michael and Melissa Weinstein's motion for partial summary judgment pursuant to Fed.R.Civ.P. 56(a) and motion to strike the affidavit of Richard Seeling. Also pending is Defendant Payco-General American Credits, Inc.s' cross motions for summary judgment pursuant to Fed.R.Civ.P. 56(b). For the reasons set forth below Plaintiffs' motion for partial summary judgment is denied (#42-1) and Defendant's motion for summary judgment granted (#38-1). Plaintiffs' motion to strike the affidavit of Richard Seeling is stricken as moot (#54-1) as well as Plaintiffs' motion for class certification (#35-1). Plaintiffs request for decision is hereby granted. (75-1).
BACKGROUND FACTS
Plaintiffs, Michael Weinstein and Melissa Weinstein ("the Weinsteins"), have filed a Class Action Complaint against defendants which alleges violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq. ("FDCPA"). The Weinsteins were named as defendants in a lawsuit filed by Defendant, Steven J. Fink ("Fink") on behalf of Evanston Hospital ("Evanston") in connection with the collection of a debt owed to Evanston.
During the years 1995 and 1996, Melissa Weinstein, then a minor, incurred medical expenses as a result of services she received from Evanston Hospital. After the Weinsteins' medical insurance failed to pay the full amount billed by Evanston Hospital, the hospital sought payment directly from the Weinsteins. After the Weinsteins failed to make payment to Evanston Hospital, the hospital turned the account over to Defendant Payco-General, Inc. ("Payco"). Defendant Payco was a subsidiary of Payco-General American Corporation, licensed to do business in Illinois, and engaged in the business of the collection of consumer debts. On June 1, 1999, Payco-General American Credits, Inc. changed its name to OSI Collection Services, Inc.
Payco has had a long-standing relationship with Evanston wherein Payco would engage in the collection of delinquent debts owed to Evanston in exchange for a predetermined percentage of the amount of the debt ultimately collected by Payco. This ongoing agreement is verbal in nature. Sometime in 1997, Evanston referred the Weinsteins' outstanding debt to Payco for collection. Payco then sent between six and eight dunning letters to the Weinsteins with no success. Weinstein recalls receiving "dunning letters" from Payco notifying him that Payco had been retained to collect the delinquent account. The "dunning letters" were misplaced lost or destroyed and are not at this time accessible to Plaintiffs.
On August 17, 1998, Evanston, by its agent, Michael Lewis, and Payco entered into an "Affidavit, Authorization" agreement. Said agreement was a sworn statement that Melissa Weinstein and Michael Weinstein owed Evanston Hospital a balance of $1,215.66 on their account. Additionally, the agreement authorized Payco to retain an attorney for Evanston Hospital under a retainer agreement and to institute legal action against the Weinsteins for $1,215.66. The agreement also provided that "[s]uit shall be commenced in our name [Evanston] only, and the attorney shall be regarded as our [Evanston] attorney and he shall be free to report directly to us or through you, as our agent, as he desires. Moreover, the agreement stated that "[t]he attorney shall remit any money recovered less his fees and disbursements to [Payco] as our agent, and you shall forward to us said sum less your agreed commission and disbursements." The "Affidavit Authorization" did not notify Evanston that Payco intended to refer the Weinstein account to Fink.
After receiving the authorization, Payco then retained Fink to file suit. Defendant Fink is an attorney licensed to practice law in the State of Illinois. It is undisputed that Fink regularly engages in the collection of debts alleged to be owned by consumers.
On or about March 17, 1999 Fink filed suit and served summons against Michael Weinstein. The summons issued by Fink contained the following:
"NOTICE REQUIRED BY THE FAIR DEBT COLLECTION PRACTICES ACT (The Act), 15 U.S.C. § 1601 as Amended:
1. The Amount of the debt is stated in the complaint which is attached hereto.
2. The Plaintiff as named in the attached is the creditor to whom the debt is owed or is the servicing agent for the creditor to whom the debt is owed.
3. The debt described in the letter attached hereto will be assumed to be valid by the creditor's law firm, unless the debtor, within thirty (30) days after the receipt of this notice, dispute, in writing, the validity of the debt or some portion thereof.
4. If the debtor notifies the creditor's law firm in writing within thirty(30) days of the receipt of this notice that the debt or any portion thereof is disputed, the creditor's law firm will obtain a verification of the debt and a copy of the verification will be mailed to the debtor by the creditor's law firm.
5. The name of the original creditor is set forth in the letter attached. If the creditor named in the attached letter is not the original creditor, and if the debtor make a written request to the creditor's law firm within Thirty (30) days from the receipt of this notice, the name and address of the original creditor will be mailed to the debtor by the creditor's law firm, within thirty five (35) days of the receipt of such written request.
6. Written request should be addressed to Steven J. Fink Associates, P.C., 25 E. Washington, Suite 1125 Chicago, Illinois 60602. We are attempting to collect a debt and any information obtained from you will be used for that purpose."
The summons and complaint filed by Fink, represented Fink as the creditor's law firm. The summons, complaint or attachments filed by Fink did not set out or identify Payco as the debt collector only Evanston as the creditor/plaintiff. The summons, complaint or attachments filed by Fink did not contain or incorporate by reference the Affidavit Authorization. Payco was not set out in the summons or complaint as an assignee for the debt or debt collector. Fink verified the facts alleged in the complaint. On April 14, 1999, the Weinsteins were served with a copy of the complaint.
Sometime in May of 1999, Michael Weinstein made a $100.00 payment to Fink which Fink deposited into a client trust account. Fink thereafter retained a fee from the $100.00 payment from Michael Weinstein and turned the remaining balance over to Payco who deposited the remainder into a trust account for the benefit of Evanston Hospital. Payco, thereafter, by either payment from Evanston and/or by set off in amounts due to Evanston received a fee from funds turned over to them by Fink on the Weinstein account and paid the remaining balance to Evanston. On May 10, 1999, Fink obtained a default judgment against Michael Weinstein the Court then set the date of July 12, 1999 for Fink to prove up Evanston's damages.
On March 16, 2000 Fink gave his deposition in the instant case. Fink testified he would only have contact with Payco with regard to the Evanston accounts. Asked what knowledge, information or belief Fink had that Payco had authority from Evanston to hire him to file a lawsuit on Evanston's behalf Fink testified that he did not know . . ." I don't know what the agreement between Payco and Evanston is . . . I assume that Payco has authority from each of the clients whose work they send to me. I don't have copies of the agreements." When Fink collects funds from a judgment, he retains his fee and disburses the balance to Payco. Fink testified that about 40% of his practice (10, 16, 17, 19).
Plaintiffs' complaint alleges that the Defendants, and each of them, violated the FDCPA: (i) by failing to name Payco as a plaintiff in the underlying action in violation of 15 U.S.C. § 1692e(14); and (ii) by serving summons on Weinstein that allegedly overshadowed the debt validation notice, in violation of § 1692g(4). In addition, Plaintiffs now claim that Fink is an agent of Payco. As a means of analysis, the court will initially set forth the standards which are applicable to all motions for summary judgment, following which it will turn to the parties arguments in support of any in opposition to the instant such motion.
DISCUSSION Summary Judgment Standards
A motion for summary judgment "should be granted where the evidence is such that it `would require a directed verdict [now a judgment as a matter of law] for the moving party.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), quoting Sartor v. Arkansas Gas Corp., 321 U.S. 620, 624, 64 S.Ct. 724, 88 L.Ed. 967 (1944). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). of course, the moving party:
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.477 U.S. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trail." Id.
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the nonmoving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
For cross motions for summary judgment, each movant must individually fulfill the stringent requirements necessary to obtain summary judgment under Rule 56, such standards still being applicable. United Transportation Union v. Ill. Central R.R., 998 F. Supp. 874, 880 (N.D.Ill. 1998). By filing cross-motions for summary judgment the parties do not waive trial by the merits, merely that each party believes the court should grant it judgment without trial, unless the judge disagrees. Miller v. LeSea Broadcasting, Inc., 87 F.3d 224, 230 (7th Cir. 1996). Indeed, upon receipt of cross-motions for summary judgment, the court is not required to grant summary judgment as a matter of law for either side. Brownlee v. City of Chicago, 983 F. Supp. 776, 779 (N.D. Ill. 1997). Rather, the court will evaluate each motion on its merits, resolving factual uncertainties and drawing all reasonable inference against the movant. Id. at 779. With these principles in mind, we turn to the merits of the motions.
The primary arguments put forth in Plaintiffs' motion for summary judgment is that the validation notice violates the FDCPA in several ways. First, Plaintiff alleges that the Fink/Payco notice is vague and ambagious in that it fails to identify if the Plaintiff in the attached complaint is the creditor or servicing agent for the creditor to whom the debt is owed. Plaintiff contends that this language fails to comply with the requirement of 15 U.S.C. § 1692g(2). Secondly, Plaintiffs argue that the Validation Notice misrepresents the validity provisions of 15 U.S.C. § 1692g(3) by referring to a "letter" attached to the notice describing the debt. This letter was not included with the summons and complaint served upon Plaintiffs. Plaintiffs' third argument puts forth that Fink misrepresent's himself as the "creditor's law firm" when he is in fact Payco's law firm. Fourth, in paragraph 5 of the Validation Notice Fink refers to the "letter attached" as setting out the "original creditor." Because there is no letter attached there is no disclosure of the "original creditor." Finally, Plaintiffs contend that the summons served with the validation notice, as here, creates a prohibited confusion directly contradicting the thirty-day validation period in that the language overshadows the debtor's verification rights while failing to explain the actual contradiction. More specifically, Plaintiffs argue that the validation notice served upon Michael Weinstein on April 14, 1999, informed Weinstein of his 30 days to dispute the debt, however, the summons preceding the notice informs Weinstein that he must take some action, i.e. file an appearance, answer or face judgment by April 26, 1999. Plaintiffs claim that the answer date provided for under Illinois civil procedure is in direct contradiction to the 30 day statutory right to dispute the amount of the debt. Each of these arguments will be addressed.
The Validation Notice Is Not Vague And Ambiguous Because It Fails To Identify Whether Evanston Is the Creditor or The Servicing Agent
Plaintiffs first argument in support of summary judgment is that Defendants violated the Fair Debt Collection Practices Act, 14 U.S.C. § 1692 (e) by not naming Payco as a plaintiff in the underlying action Evanston Hospital v. Michael Weinstein and Melissa Weinstein which was filed in the Circuit Court of Cook County, Illinois. Plaintiffs argue that the Fink/Payco notice is vague and ambiguous in that it fails to identify if the Plaintiff in the attached complaint is the "creditor" or "servicing agent for the creditor" to whom the debt is owed.
Section 1692e(14) prhibits false and misleading representations. It provides (in pertinent part):
§ 1692e. False or misleading representations
A debt collector may not use any false deceptive or misleading representations or means in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(14) The use of any business, company or organization's name other than the true name of the debt collector's business, company, or organization.
The FDCPA required only that a debt collector use it's true name, and not a fabricated name, if it chooses to be named in connection with the collection of a debt. The aim of § 1692e(14) is to prevent debt collectors from using a name other than its own in an attempt to mislead or deceive a consumer. See Anthes v. Transworld Systems, Inc., 765 F. Supp. 162 (D.Del. 1991). The FDCPA does not require a debt collector to be named as a plaintiff in a collection action where the debt collector neither owns the debt, nor prosecutes the lawsuit. 15 U.S.C. § 1692i, 1692n. The Illinois Code of Civil Procedure, at 735 ILCS 5/2-403 provides:
Who may be plaintiff . . .
(a) The assignee and owner of a non-negotiable chose in action may sue thereon in his or her own name. Said person shall in his or her pleading on oath allege that he or she is the actual bonafide owner thereof, and set forth how and when he or she acquired title . . .
This Court must use the unsophisticated consumer standard in determining whether the inclusion of the language "or the servicing agent for the creditor" is vague and ambiguous. See Gammon v. G.C. Serv. Ltd. Partnership, 27 F.3d 1254, 1257 (7th Cir. 1994). We find that it is not. The summons clearly identified the debt collector — Fink, and directed Weinstein to the accompanying complaint which contained a clear description of the original creditor-Evanston Hospital, and the nature of the debt. Plaintiff, Michael Weinstein testified at his deposition that he assumed that Payco should have been named because it participated in the collection activity prior to the filing of the suit. (Weinstein Dep. at p. 46). Weinstein also testified that when he received the summons he understood what the summons and complaint were related to. (Weinstein Dep. at p. 23). Obviously, Weinstein was more than clear as to Payco's role in this debt collection process. Neither the law nor the facts of this case support Plaintiffs' allegations that Payco should have been named in the underlying action. Defendants complied with the requirements of the Act when they clearly disclosed who the creditor was — Evanston.
Inclusion of the Validation Language On the Back of Summons Does Not Violate The Act.
Plaintiffs second and fourth argument contends that the validation notice violated the FDCPA by referring to a "letter" attached to the notice describing the debt and the original creditor. Apparently, Fink decided to include the terms of the debt validation notice required by 15 U.S.C. § 1692g(a) on the back of the summons when he filed the underlying lawsuit and did not enclose copies of Payco's previous mailed dunning letters.
15 U.S.C. § 1692g provides in part:
Validation of debts
(a) Notice of debts; contents
Within five days after the initial communication with a consumer m connection with the collection of a debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing
(1) the amount of the debt;
(2) the name of the creditor to who the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of the judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
Sections 1692g(a)(3) and (4) of the FDCPA requires not only that the debt collector inform the consumer of certain rights in the debt collector's first communication or within five days of that initial communication, but also that the remainder of the letter containing the validation notice not contradict or overshadow the validation notice. See Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991) and Miller v. Payco-General Am. Credits, Inc., 943 F.2d 482, 484 (4th Cir. 1991).
At the outset, neither the FDCPA nor Illinois' Rule of Civil Procedure require that the validation notice be included as part of the summons and complaint when filing a lawsuit to collect a debt. Rather, this section of the Act applies only to the initial communication stage of the debt collection process — within five days of that initial communication. Miller v. Payco-General Am. Credits, Inc., 943 F.2d 484 (4th Cir. 1991); Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir. 1988); Russell v. Equifax A.R.S., 1994 WL 672648 *2 (N.D.N.Y. 1994); Rabideau v. Management Adjustment Bureau, 805 F. Supp. 1086, 1093 (W.D.N.Y. 1992); Gaetano v. Payco of Wis., Inc. 774 F. Supp. 1404, 1410-11 (D. Conn. 1990). The debt validation notice is designed to fulfill the congressional intent to "eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid." S.Rep. No. 382, 95th Cong. 2d Sess. 4, reprinted in 1977 U.S. Code Cong. Admin. News 1695, 1699. Congress did not mandate that debt collection efforts cease during the thirty-day collection validation period or that every collection notice sent to the plaintiff repeat the debt validation notice language set forth on 15 U.S.C. § 1692g(a).
Plaintiffs attempt to oversimplify the issue by relying upon the Supreme Court's decision in Heintz v. Jenkins, 514 U.S. 291 (1995), which held that the FDCPA applied to attorney debt collectors. This reliance is misplaced. The Supreme Court in Heintz did not address the issue of whether a legal action constitutes a "communication" within the meaning of the Act. It is undisputed in this case that initial communication with Michael Weinstein was made by Payco — long before Fink became involved with the collection of this debt — when the Weinstein's received from six to eight dunning letters. Furthermore, it is undisputed that Weinstein wrote back to Payco and disputed the validity of the debt when he indicated that it was his impression that balance due to Evanston was being handled by he and his wife's insurance companies. (Weinstein Dep. p. 16). Because initial communication with Michael Weinstein was made by Payco and not Fink, and Weinstein did in fact dispute the debt during this initial period it cannot be concluded that Fink's failure to attach Payco's dunning letter was misleading and violated the statute. Because consumers' debt validation rights persist for only 30 days after receipt of a communication continuing the debt validation notice, the summons cannot violate 1692g(a) regardless of the fact that it failed to contain a copy of Payco's previously mailed letters. Therefore, it cannot be concluded that Act was violated.
It Is Undisputed That Fink Did Not Misrepresent Himself
Plaintiffs' third argument contends that the validation notice violated Section 1692g of the FDCPA in that Fink misrepresent's himself as the "creditor's law firm" when he is in fact Payco's law firm. The undisputed facts reveal that Payco at all pertinent times was acting as the agent of Evanston in facilitating Evanston's relationship with Fink, and that Fink is not an employee and or agent of Payco but rather Evanston's law firm. There is no evidence that Fink works in-house for Payco. Furthermore, the facts reveal that Fink was retained by Evanston through Payco. Payco did not have a written agreement with Fink and Payco gave Fink no instructions on how to handle the collection of the Weinstein debt. Rather, the undisputed facts reveal that once Payco established that it could not collect the Weinstein debt Payco referred the matter to Fink for legal prosecution. Fink was then provided with account information on the Weinsteins but otherwise received no direction from Payco. Fink filed a summons, complaint and debt validation notice, each of which he drafted. Fink had the autonomy to proceed with the lawsuit in the manner that he thought to be proper and it was Fink's personal policy to attach a validation notice to a summons and complaint prior to filing.
In Anthes v. Transworld Systems, Inc. 765 F. Supp. 162 (D.Del. 1991) the court considered a similar agency issue. In Anthes the collection agency retained the service of a collection attorney to send out letters in an attempt to collect debts. The debtor subsequently sued Transwold,, alleging that the agency was liable for FDCPA violations allegedly contained in the letter sent by the collection agency. The court determined that, although he had been specifically retained by the collection agency, the attorney was not an employee of the collection agency; that he did not independently investigate the validity of the debts; that the agency provided him with debtor information; and that if the attorney found that a letter would be appropriate, his office sent a letter to the debtor. Id. at 166. In granting summary judgment for the collection agency, the court held, "In this suit against TSI, the plaintiff seeks to hold TSI liable for the content of the Rubin letter. The content of the Rubin letter allegedly violated 15 U.S.C. § 1692e(5) and (10). These claims must fail because TSI is not responsible for what Rubin writes in his letters. Id. Mr. Rubin alone is responsible for the content of his letters sent from his office, on his stationary, in his name." Id. at 167. As the plaintiff in Anthes had failed to name the collection attorney as a defendant, the court added, "the plaintiff has sued the wrong party." Id.
Furthermore, the Authorization Agreement entered into by Evanston clearly provided that any attorney which Evanston authorized Payco to retain "shall be regarded as our attorney and he shall be free to report directly to us or through us or through you, as our agent, as he desires". The Authorization was drafted and signed by Michael Lewis, Manager of Evanston Hospital. Moreover, Fink testified at his deposition that he represent[ed] Evanston Hospital only, and his understanding is that Payco is an agent for Evanston. Because Plaintiffs have failed to produce any evidence that Payco is an agent of Payco summary judgment is hereby granted in Defendants' favor.
Summons Served With The Validation Notice
Finally, Plaintiff argues that the summons served with the validation notice violated 15 U.S.C. § 1692g(a) of the Act in that it "overshadows" the provisions of the 30 days to dispute the debt. As stated previously the statute only requires this language at the initial stage of communication with the debtor and the facts of this case are not ones which support the conclusion that this was the initial stage of communicating with Michael Weinstein. Furthermore, even if it could be concluded that Fink's inclusion of a copy of the validation notice on the back of the summons somehow revived Weinstein's validation rights this Circuit has held that the debt collector is free to sue within thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor. 15 U.S.C. § 1692g(b). The FDCPA does not prohibit the filing of a legal action by a debt collector against a consumer at any time after the debt had been declared delinquent. The Seventh Circuit, in Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1999), held, after considering an overshadowing issue, that "[t]he debt collector is perfectly free to sue within 30 days . . ." While many courts have held that an attorney debt collector may not threaten suit within said validation period, no court has held that the actual filing of a suit overshadows or contradicts the validation notice. See Avila v. VanRu Credit Corp., 1995 WL 55255 (N.D. Ill.) (affirmed, Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996)); Cortright v. Thompson, 812 F. Supp. 772 (N.D. Ill. 1992); Ditty v. Checkrita Ltd., Inc. 973 F. Supp. 1320, 1328 (D. Utah 1997). Johnson v. Eaton, 873 F. Supp. 1019 (M.D. La. 1995); Barrientos v. Law Offices of Mark L. Nichter, 76 F. Supp.2d 510 (S.D.N Y 1999). Furthermore, the summons itself is required by Illinois' Code of Civil Procedure and the requirement of serving such cannot be concluded to be inconsistent with the FDCPA. The law requires that the summons be sent by the clerk, under seal of the court, and bearing the signature of the clerk. Clearly, Illinois law requires that a summons be issued by the court. It follows that any demands or requirement within the summons be issued by the court. Moreover, the FTC Official Staff Commentary 53 Fed. Reg. 50097-50110 in section 809(a)6 provides that, "A debt collector's institution of formal legal action against a consumer or transmission of a notice to a consumer that is required by law as a prerequisite to enforcing a contractual obligation is not a communication in connection with the collection of any debt, and thus does not confer section 809 notice-and validation rights on the consumer." Finally, the undisputed facts of this case reveal that Weinstein did in fact verify the debt prior to expiration of the 30 day period and mailed in a payment of $100. (Weinstein Dep. 31-31). To be sure Weinstein also testified as to the confusion he experienced as to when he read the summons and complaint — in particular as to the confusion of the dates but on these of facts this cannot be concluded to be a violation of the FDCPA. In sum, the court concludes that the Defendants did not contradict the validation notices. Accordingly, summary judgment is granted in Defendants' favor.
CLASS CERTIFICATION
Because we do not find an violations of section 1692, we need the reach Plaintiffs' request for class certification.
CONCLUSION
For the reasons set forth above Plaintiffs' motion for partial summary judgment is denied (#42-1) and Defendant's motion for summary judgment granted (#38-1). Plaintiffs' motion to strike the affidavit of Richard Seeling (#54-1)and Plaintiffs motion for class certification (#35-1) are stricken as moot. Plaintiffs request for decision is hereby granted. (75-1) Judgement is entered in favor of the defendants and against plaintiffs. The captioned cause is hereby ordered terminated upon the docket record of the United States District Court for the Northern District of Illinois, Eastern Division.