IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
DENISE GARCIA, ) Plaintiff, v. No. 17 C 881
MIRAMED REVENUE GROUP, LLC, ) Defendant. )
MEMORANDUM OPINION SAMUEL DER-YEGHIAYAN, District Judge This matter is before the court on Plaintiff Denise Garcia’s (Garcia) motion for summary judgment and on Defendant Miramed Revenue Group, LLC’s (Miramed) motion for summary judgment. For the reasons stated below, Garcia’s motion for summary judgment is granted in part and denied in part, and Miramed’s motion for summary judgment is granted in part and denied in part.
BACKGROUND Garcia allergy owed a debt (Debt) for a defaulted Community First Medical Center consumer medical account. Miramed is allegedly a debt collector that tried
to collect the Debt from Garcia. In June 2016, Miramed allegedly sent Garcia a collection letter (Letter) as an initial communication. In the Letter Garcia was
allegedly informed that the remaining balance owed was $100. However, the
accounting statement included with the Letter allegedly indicated that $1,905.82 was
still owed. Garcia contends that Miramed failed to provide notice of the amount of
the Debt when it communicated varying amounts owed to Garcia. Garcia includes in
her complaint a claim alleging a violation of the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. § 1692 ef seq. (Count I), and a claim alleging a violation of the
Illinois Collection Agency Act (ICAA), 225 ILCS 452/1 et seq. (Count II), Garcia
and Miramed now each move for summary judgment.
LEGAL STANDARD Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009), A “genuine
issue” in the context of a motion for summary judgment is not simply a
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Lid. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material
fact exists when “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 248
(1986); Insolia v. Phillip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling
on a motion for summary judgment, the court must consider the record as a whole, in
a light most favorable to the non-moving party, and draw all reasonable inferences in
favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens
Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). When there are cross motions for
summary judgment, the court should “construe the evidence and all reasonable
inferences in favor of the party against whom the motion under consideration is
made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27
(7th Cir, 2005).
DISCUSSION
FDCPA Claim Miramed argues that it did not fail to provide notice as required under the
FDCPA and that even if it did fail to do so, it is protected by the bona fide error
defense.
A. Compliance with Notice Requirement Garcia argues that Miramed failed to comply with its obligation under the
EDCPA to provide notice of the Debt to Garcia, The FDCPA provides in part 15
U.S.C. § 1692g, that “[w]ithin five days after the initial communication with a
consumer in connection with the collection of any 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—.. . the amount of
the debt... 15 U.S.C. § 1692g(1). In determining whether a debt collector
provided false or misleading information in violation of the FDCPA, the court
should employ the objective unsophisticated consumer standard. Gruber v. Creditors' Prot. Serv., Inc., 742 F.3d 271, 273 (7th Cir. 2014), It is undisputed that
in the Letter Miramed informed Garcia that the “Amount Due” and the “Remaining
Patient Balance” was $100.00. Yet it is further undisputed that the Letter also
contained an “accounting of the patient” for the “Remaining Patient Balance” that
indicated that the “Total Charges” were $3,665.00, and that the only payments so far
had been $1,759.18 which had been paid by insurance. Presented with such
information a reasonable consumer would not be certain whether the consumer owed
$100.00 or $1,905.82. It is undisputed that even though Miramed represented in the
Letter that the “Remaining Patient Balance” was $100.00, Garcia in fact owed the
$1,905.82. The Seventh Circuit has stated that an initial debt collection letter must
state the debt “clearly enough that the recipient is likely to understand it.” Chuway
vy. Nat'l Action Fin. Servs., Inc., 362 F.3d 944, 948 (7th Cir. 2004), Based on the
inconsistent information provided in the Letter an unsophisticated consumer would
not understand what amount was still owed on the Debt. Even an unsophisticated
consumer would be able to add or use a calculator and discern the inconsistencies in
the Letter. See Gruber, 742 F.3d at 273 (stating that “Cajithough the hypothetical
unsophisticated consumer is not as learned in commercial matters as are federal
judges, he is not completely ignorant either’). Miramed contends that it was truthful to state that Garcia owed $100 even if
she may have owed more as well. Miramed was obligated, however, to give notice
of the entire Debt, Also, by stating that the “Remaining Patient Balance” was $100, Miramed implied that nothing more was owed. Based on such undisputed facts, Miramed failed to comply with notice requirements in Section 1962g in regard to
notice of the amount of the Debt.
B. Bona Fide Error Defense Miramed argues that even if it failed comply with the FDCPA notice
requirement, Miramed is protected by the bona fide error defense. The FDCPA
provides that “[a] debt collector may not be held liable in any action brought under
this subchapter if the debt collector shows by a preponderance of evidence that the
violation was not intentional and resulted from a bona fide error notwithstanding the
maintenance of procedures reasonably adapted to avoid any such error.” 15 U.S.C. § 1692k(c). Miramed argues that it merely presented the Debt base upon the account
information provided by the creditor and that it has procedures in place to ensure
that accurate information is provided to debtors.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
DENISE GARCIA, ) Plaintiff, v. No. 17 C 881
MIRAMED REVENUE GROUP, LLC, ) Defendant. )
MEMORANDUM OPINION SAMUEL DER-YEGHIAYAN, District Judge This matter is before the court on Plaintiff Denise Garcia’s (Garcia) motion for summary judgment and on Defendant Miramed Revenue Group, LLC’s (Miramed) motion for summary judgment. For the reasons stated below, Garcia’s motion for summary judgment is granted in part and denied in part, and Miramed’s motion for summary judgment is granted in part and denied in part.
BACKGROUND Garcia allergy owed a debt (Debt) for a defaulted Community First Medical Center consumer medical account. Miramed is allegedly a debt collector that tried
to collect the Debt from Garcia. In June 2016, Miramed allegedly sent Garcia a collection letter (Letter) as an initial communication. In the Letter Garcia was
allegedly informed that the remaining balance owed was $100. However, the
accounting statement included with the Letter allegedly indicated that $1,905.82 was
still owed. Garcia contends that Miramed failed to provide notice of the amount of
the Debt when it communicated varying amounts owed to Garcia. Garcia includes in
her complaint a claim alleging a violation of the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. § 1692 ef seq. (Count I), and a claim alleging a violation of the
Illinois Collection Agency Act (ICAA), 225 ILCS 452/1 et seq. (Count II), Garcia
and Miramed now each move for summary judgment.
LEGAL STANDARD Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009), A “genuine
issue” in the context of a motion for summary judgment is not simply a
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Lid. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material
fact exists when “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 248
(1986); Insolia v. Phillip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling
on a motion for summary judgment, the court must consider the record as a whole, in
a light most favorable to the non-moving party, and draw all reasonable inferences in
favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens
Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). When there are cross motions for
summary judgment, the court should “construe the evidence and all reasonable
inferences in favor of the party against whom the motion under consideration is
made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27
(7th Cir, 2005).
DISCUSSION
FDCPA Claim Miramed argues that it did not fail to provide notice as required under the
FDCPA and that even if it did fail to do so, it is protected by the bona fide error
defense.
A. Compliance with Notice Requirement Garcia argues that Miramed failed to comply with its obligation under the
EDCPA to provide notice of the Debt to Garcia, The FDCPA provides in part 15
U.S.C. § 1692g, that “[w]ithin five days after the initial communication with a
consumer in connection with the collection of any 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—.. . the amount of
the debt... 15 U.S.C. § 1692g(1). In determining whether a debt collector
provided false or misleading information in violation of the FDCPA, the court
should employ the objective unsophisticated consumer standard. Gruber v. Creditors' Prot. Serv., Inc., 742 F.3d 271, 273 (7th Cir. 2014), It is undisputed that
in the Letter Miramed informed Garcia that the “Amount Due” and the “Remaining
Patient Balance” was $100.00. Yet it is further undisputed that the Letter also
contained an “accounting of the patient” for the “Remaining Patient Balance” that
indicated that the “Total Charges” were $3,665.00, and that the only payments so far
had been $1,759.18 which had been paid by insurance. Presented with such
information a reasonable consumer would not be certain whether the consumer owed
$100.00 or $1,905.82. It is undisputed that even though Miramed represented in the
Letter that the “Remaining Patient Balance” was $100.00, Garcia in fact owed the
$1,905.82. The Seventh Circuit has stated that an initial debt collection letter must
state the debt “clearly enough that the recipient is likely to understand it.” Chuway
vy. Nat'l Action Fin. Servs., Inc., 362 F.3d 944, 948 (7th Cir. 2004), Based on the
inconsistent information provided in the Letter an unsophisticated consumer would
not understand what amount was still owed on the Debt. Even an unsophisticated
consumer would be able to add or use a calculator and discern the inconsistencies in
the Letter. See Gruber, 742 F.3d at 273 (stating that “Cajithough the hypothetical
unsophisticated consumer is not as learned in commercial matters as are federal
judges, he is not completely ignorant either’). Miramed contends that it was truthful to state that Garcia owed $100 even if
she may have owed more as well. Miramed was obligated, however, to give notice
of the entire Debt, Also, by stating that the “Remaining Patient Balance” was $100, Miramed implied that nothing more was owed. Based on such undisputed facts, Miramed failed to comply with notice requirements in Section 1962g in regard to
notice of the amount of the Debt.
B. Bona Fide Error Defense Miramed argues that even if it failed comply with the FDCPA notice
requirement, Miramed is protected by the bona fide error defense. The FDCPA
provides that “[a] debt collector may not be held liable in any action brought under
this subchapter if the debt collector shows by a preponderance of evidence that the
violation was not intentional and resulted from a bona fide error notwithstanding the
maintenance of procedures reasonably adapted to avoid any such error.” 15 U.S.C. § 1692k(c). Miramed argues that it merely presented the Debt base upon the account
information provided by the creditor and that it has procedures in place to ensure
that accurate information is provided to debtors. Whether or not the creditor gave information concerning payments made, is irrelevant. Miramed may not have
intentionally and wilfully violated the FDCPA, but the undisputed facts show that
Miramed intentionally chose to present the conflicting information concerning the
amount of the Debt believing it to be compliant with the law. See Leed v. Nationwide Credit Corp., 806 F.3d 895, 899 (7th Cir. 2015)(stating that “liability is
not confined to willful violations”); Flores v. Portfolio Recovery Assocs., LLC, 2017
WL 5891032, at *5 (N.D. II. 2017\(stating that bona fide error “defense is limited to factual or clerical mistakes, and does not shield mistaken applications of the law”)(citing Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 US.
573, 577 (2010)). Miramed is thus not entitled to prevail based on the bona fide
error defense. Based on the above, Garcia’s motion for summary judgment on the
FDCPA claim is granted and Miramed’s motion for summary judgment on the FDCPA claim is denied.
I. ICAA Claim Miramed argues that there is no private right of action under the ICAA. Garcia acknowledges that the Illinois Supreme Court has not recognized such a
private right of action. Nor has Garcia cited any cases in which such a right has
been recognized. This court declines to recognize such a cause of action under the
ICAA. Therefore, Miramed’s motion for summary judgment on the ICAA claim is
granted and Garcia’s motion for summary judgment on the ICAA claim is denied.
CONCLUSION Based on the above, Garcia’s motion for summary judgment on the FDCPA claim is granted and Miramed’s motion for summary judgment on the FDCPA claim is denied. Miramed’s motion for summary judgment on the ICAA claim is granted and Garcia’s motion for summary judgment on the ICAA claim is denied.
Se taracke Dw o 4 abe ey le oh, Samuel Der-Yeghiayait United States District Court Judge
Dated: January 30, 2018