Ellison v. Fullett Rosenlund Anderson P.C.

347 F. Supp. 3d 370
CourtDistrict Court, E.D. Illinois
DecidedSeptember 28, 2018
DocketCase No. 17 CV 2236
StatusPublished
Cited by1 cases

This text of 347 F. Supp. 3d 370 (Ellison v. Fullett Rosenlund Anderson P.C.) is published on Counsel Stack Legal Research, covering District Court, E.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellison v. Fullett Rosenlund Anderson P.C., 347 F. Supp. 3d 370 (illinoised 2018).

Opinion

Harry D. Leinenweber, Judge

Plaintiff Joy Ellison, an individual residing in Lake County, Illinois, sues Defendant Fullet Rosenlund Anderson P.C. ("FRA"), a law firm, for allegedly violating the Fair Debt Collection Practices Act ("FDCPA"). The case is before the Court on the parties' cross-motions for summary judgment. For the reasons stated herein, Plaintiff's Motion (Dkt. No. 28) is granted and Defendant's Motion (Dkt. No. 31) is denied.

I. UNDISPUTED FACTS

This case arises from a notice sent from FRA and received by Plaintiff on March 7, 2017 ("Notice") (Pl.'s Resp. to Def.'s Statement of Facts ("Def. SOF") ¶ 9, Dkt. No. 39.) During the relevant time, Plaintiff owned a property at North Old Creek Court, in Gurnee, Illinois. (Def. SOF ¶ 5.) The property is a single-family home run by the Brookside Village Neighborhood Association ("Association"), which has the ability to charge monthly assessments. (SOF ¶ 6.) On October 23, 2015, Plaintiff filed for bankruptcy, and in February 2016, the bankruptcy court entered a bankruptcy discharge. (Def. SOF ¶¶ 8-9.) Among the discharged debt was a debt held by the Association for dues. (Def.'s Resp. to Pl.'s Statement of Facts ("Pl. SOF") ¶ 5, Dkt. No. 38.) FRA was aware at the time it sent the Notice that Plaintiff's dues debt to the Association had been discharged. (Pl. SOF ¶ 8.) On March 7, 2017, FRA sent the Notice, which Plaintiff subsequently received. (Pl. SOF ¶ 9.) The Notice sought to collect a debt to the Association. (Def.'s Reply to Pl.'s Statement of Additional Facts ("Pl. SOAF") ¶ 14, Dkt. No. 46.) The parties dispute whether the debt sought was Plaintiff's dues debt. (Pl. SOAF ¶ 14.)

The following facts are derived from the Notice itself and are thus undisputed. The Notice begins with a header providing: "THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT. ANY AND ALL INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE." (Notice, Ex. A to Def. SOF, Dkt. No. 39.) The title of the Notice states, "IN REM NOTICE AND DEMAND FOR POSSESSION." (Id. ) The Notice's address block includes the following:

36205 North Old Creed Court
c/o Joy Ellison *373and All Unknown Occupants
36205 North Old Creek Court
Gurnee, IL 60031

(Id. ) The body of the Notice includes three paragraphs. The first begins by stating:

THIS IS THE PROPERTY'S NOTICE ... that the property is in default of its ongoing obligation due to Brookside Village Neighborhood Association in the sum of $4,100.00 for its proportionate share of the expenses ... lawfully agreed upon due and owing at least in part since 02/01/2011, as well as the sum of $265.02 in legal fees and costs in attempting to collect this account, for a total sum of $4,365.02.

(Id. ) The Notice thereafter warns that the Association will demand possession of the property upon expiration of the Notice. (Id. ) The second paragraph states:

This is its NOTICE that payment in full of the amount stated above is demanded of the property and that, unless its payment of the FULL AMOUNT is made on or before the expiration of thirty-four (34) days after the date of mailing of this Notice, THE ASSOCIATION MAY SEEK TO TERMINATE ANY RIGHT TO POSSESSION OF THE PREMISES.

(Id. ) That paragraph concludes that "[i]f the debt is disputed as discussed below, this office will suspend its efforts to collect the debt until the information is mailed." (Id. )

Finally, the third paragraph asserts, in all caps, the manner in which the debt may be disputed, stating:

UNLESS YOU NOTIFY THIS OFFICE WITHIN 30 DAYS AFTER RECEIVING THIS NOTICE THAT YOU DISPUTE THE VALIDITY OF THIS DEBT OR ANY PORTION THEREOF, THIS OFFICE WILL ASSUME THIS DEBT IS VALID. IF YOU NOTIFY THIS OFFICE IN WRITING ... THAT YOU DISPUTE THE VALIDITY OF THIS DEBT ... THIS OFFICE WILL OBTAIN VERIFICATION OF THE DEBT ... IF YOU REQUEST OF THIS OFFICE ... [IT] WILL PROVIDE YOU WITH THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR ... IF YOU DISPUTE THE DEBT WITHIN THE 30 DAY PERIOD, THIS OFFICE WILL SUSPEND EFFORTS TO COLLECT THE DEBT UNTIL THE INFORMATION IS MAILED.

(Id. )

Upon receiving the Notice, Plaintiff consulted her attorneys. (Pl. SOAF ¶ 13.) Plaintiff also sent a letter to FRA and the Association to inform them that the debt had been discharged in bankruptcy. (Pl. SOAF ¶ 17.) The extent to which Plaintiff was confused or misled by the Notice is disputed. (Pl. SOF ¶¶ 19, 21.) The parties also dispute whether the Notice was an attempt to collect a debt from Plaintiff, individually, or from the property. (Pl. SOF ¶ 9.) On March 23, 2017, Plaintiff commenced this lawsuit (Def. SOF ¶ 16), alleging that the Notice was misleading in violation of § 1692e and § 1692g of the FDCPA. (Compl. ¶ 31.) Finally, in August 2017, FRA filed a lawsuit in state court against the 36205 North Old Creek Court property which named Ellison as defendant. (Pl. SOAF ¶ 12.)

II. ANALYSIS

A. Standard of Review

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; see also Liu v. T & H Mach., Inc. , 191 F.3d 790, 794 (7th Cir. 1999) (citation omitted). A genuine issue of material fact *374exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City of Attica , 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). When considering the Plaintiff's Motion for Summary Judgement, the Court construes the facts in the light most favorable to the Defendant, and when considering the Defendant's Motion for Summary Judgment, the Court construes the facts in the light most favorable to the Plaintiff. See First State Bank of Monticello v. Ohio Cas. Ins. Co. , 555 F.3d 564, 567 (7th Cir. 2009). In FDCPA cases, the Court may award summary judgment on the basis of the notice alone. Lox v.

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347 F. Supp. 3d 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellison-v-fullett-rosenlund-anderson-pc-illinoised-2018.