Aitken v. Debt Management Partners, LLC et al

Filing 71

BENCH ORDER: See Written Order. Entered by Magistrate Judge Jonathan E. Hawley on 4/17/2015. (KZ, ilcd)

E-FILED

Friday, 17 April, 2015 03:58:15 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JAY AITKEN,
Plaintiff,
v.

Case No. 1:12-CV-01511

DEBT MANAGEMENT PARTNERS,
LLC, et al.,
Defendants.
Order
On February 9, 2015, this matter came before the Court for a bench trial 1 on
Plaintiff, Jay Aitken’s (Aitken) claims against Defendants Debt Management
Partners, LLC (DMP) and Audubon Financial Bureau (Audubon). 2 Plaintiff sued
Audubon and DMP, alleging violations of the Fair Debt Collection Practices Act
(FDCPA), the Illinois Collection Agency Act (ICAA), and the Illinois Consumer
Fraud Act (ICFA). Following cross-motions for summary judgment, this Court
found that Defendants violated the FDCPA in a voice mail that Audubon left for
Plaintiff on August 31, 2012. After summary judgment, the following issues
remained for trial: (1) whether an employee of Audubon identifying herself as
“Monica” falsely claimed that Plaintiff could be jailed or sued during a phone
call on August 3, 2012; (2) whether Audubon violated the FDCPA and the ICFA
by disclosing Plaintiff’s debt to his mother, Judy Aitken; and (3) whether the
Plaintiff was entitled to any damages. After the bench trial, this Court ordered
The parties consented to proceeding before a U.S. Magistrate Judge. (D. 27; D. 29).
In its Order on summary judgment, this Court held that DMP is liable for the actions of Audubon. (D. 54
at ECF p. 13). The Court will therefore, refer only to Audubon’s actions herein, unless there is a particular
need to distinguish between the two Defendants.
1
2

1

the parties to submit post-trial briefs with proposed findings of fact and
conclusions of law. The Court having considered the evidence and argument
presented at the bench trial, as well as the post-trial briefs of the parties, this
matter is now ripe for decision. Parts I and II of this Order address the questions
of fact and law relevant to the question of liability, and Part III of this Order
address the questions of fact and law relevant to damages.
I
A
The Court finds the following facts relevant to liability.
In January 2010, Plaintiff borrowed $2,000 from a payday loan business
called the Cash Store. Plaintiff took out a number of high-interest loans around
this time, and sometimes borrowed from three different payday loan stores at
once, including the Cash Store. Plaintiff stopped repaying the Cash Store loan in
late 2010 or early 2011. The Cash Store and a collection company called the
Bennett Law Firm began calling Plaintiff about his delinquent loan, demanding
repayment in full. DMP then purchased Plaintiff’s delinquent Cash Store loan,
and in July 2012, placed it with Audubon for collection.
B
A critical fact in dispute at trial is exactly what transpired during an
August 3, 2012 telephone call between Aitken and Audubon.
At trial, Plaintiff introduced into evidence an “account history log” from
Audubon, which is a computerized record that is supposed to document
everything Audubon did to collect Plaintiff’s Cash Store debt. (Plaintiff’s Exhibit
#2; D. 68-3). This log has an entry for August 3, 2012, which notes that Audubon
employee, Amanda Mottorn, “contacted Debtor.” That same entry then notes,
“Other,”with what appears to be a notation by a Manager named “Doug,” which
indicated that the Plaintiff agreed to settle the account for four payments of $510,
2

subject to his discussing the arrangement with his wife.

The Debtor would

contact Audubon with the “results” the next Monday. Id. “Doug” referenced in
the log was Doug Borawski, an Audubon manager.
Contrary to what the log indicates, the Plaintiff testified that the following
occurred on the August 3, 2012 telephone call with Audubon. According to the
Plaintiff, he talked with two individuals who identified themselves as “Monica”
and “Frank Salvasio.” Aitken talked to Monica first, who stated, “You willingly
defrauded the Cash Store. That’s a Class 1 felony. People go to jail for that.”
Monica also asked him for his home and employment addresses. When Aitken
asked her why she needed these addresses, she responded, “That will be the
place where we can kick off the paperwork to have you served.” Subsequently,
Monica transferred Aitken to Frank Salvasio. Frank Salvasio, identified as an
attorney, started the conversation by asking Aitken, “Did Monica make you
aware of how serious this crime is?” Aitken then discussed payment
arrangements with Mr. Salvasio.
The Court finds by a preponderance of the evidence that Aitken’s version
of what transpired during the August 3, 2012 telephone call is the more likely
version of what actually happened. First, it is undisputed that neither a “Monica”
nor “Frank Salvasio” worked for Audubon during the relevant time period.
Nevertheless, it is also undisputed that on August 31, 2012, Amanda Mottorn,
using the name “Monica,” left the following voice message for Aitken stating as
follows:
Hi. This message is for Jay Aitken. My name is Monica. I’m with the
A and B Fraud Division. Jay, um, I did speak with you a couple of
weeks ago. Um, you stated in a federally recorded line you wanted
to take care of this matter. Obviously you had no intentions on
taking care of this matter, because we have not spoken with you
since. I don’t know if you felt that just because we dropped the
judgment that you’d be OK, and you wouldn’t have to go to court
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on the account. Um, as of today, if there is not a payment in this
office, we will be sending you to court. You will be served at your
homestead. If you can make a payment today, please give our office
a call at 1-888-506-1740, extension 111.
This voice message corroborates a number of facts consistent with Aitken’s
version of events.

The message confirms that Amanda Mottorn, using the

fictitious name “Monica,” previously spoke with Aitken. The only date prior to
the voice message which the log shows someone made actual contact with
Aitken was on August 3, 2012. Mottorn claims to be calling from the “A and B
Fraud Division,” a representation which is consistent with Aitken’s claim’s
regarding the August 3, 2012 telephone call referencing criminal conduct.
Although Mottorn indicated in her deposition that she did not speak to Aitken at
all on August 3, 2012, and implied that Borawski alone must have spoken with
Aitken while logged into the computer under her name, this cannot be true, for
the August 31 voice message is clear that she spoke to Aitken previously. And, as
already noted, August 3 was the only date prior to the August 31 voice message
when the log indicates anyone spoke to Aitken personally.
Likewise, the log itself at least in part corroborates Aitken’s version of
events to the extent that Aitken claimed to speak to both a man and a woman
during the August 3 telephone call. The log indicates Aitken indeed spoke to a
man and woman during that call, Borawski and Mottorn, and, given the fact that
Mottorn indisputably used the fictitious name “Monica” during the August 31
voice message, one can reasonably infer that she used the same fictitious name
during the August 3 telephone call, along with Borawski using the fictitious
name of Frank Silvasio.
The Court notes that if the only evidence supporting Aitken’s version of
what transpired during the August 3 telephone was Aitken’s testimony alone,
4

then Aitken would have failed to meet his burden, given Aitken’s lack of
credibility, as discussed, infra. However, the other facts noted which corroborate
portions of Aitken’s testimony are enough to tip the balance in his favor on this
question of fact, although just barely.
C
The other telephone call at issue is a telephone call made by Aitken’s
mother, Judy Aitken, to Audubon on November 13, 2012. Audubon’s account
history reflects that Audubon received a call from telephone number (269) 4713026 on November 13, 2012 at 4:08 p.m. This is the number of ASAP Ministries,
where Judy Aikten worked at the time. The account history indicates that
someone named Brandi Hill took the call and made the notation “NON RPC/No
longer works there.” Audubon’s representative, Randy Zaffran, testified that this
notation means that someone other than the debtor called from a place of
employment and that the debtor no longer works there.
Judy Aitken testified that she made this call to Audubon in response to a
note she received from co-workers which indicated calls had come in for her at
her place of employment. When she called Audubon, she reached a woman who
identified herself, although Judy Aitken could not remember the name the
woman used. According to Judy Aitken, after the Audubon employee asked if
she was related to the Plaintiff and if she knew where he was, Judy Aitken asked,
“What is the problem?” (Tr. at p. 50). The employee then responded, “He owes a
debt and he needs to pay the debt.” Id.
The Court finds by a preponderance of evidence that, as testified to by
Judy Aitken, the Audubon employee stated to her that the Plaintiff “owes a
debt.” First, the Court finds Judy Aitken to be a credible witness. She was clear in
her testimony, her demeanor supported the credibility of her testimony, and her
testimony was internally consistent. The Defendant’s cross-examination of her
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did nothing to effectively call her credibility into question. Second, Audubon’s
own account history corroborates that Judy Aitken made a call to Audubon. The
fact that Judy Aitken called Audubon and had the telephone number to do so
corroborates her version of events. Likewise, the account history corroborates
that a woman from Audubon spoke with Judy Aitken as she testified. Finally,
although the account history does not state that Audubon disclosed that the
Plaintiff owed a debt to Judy Aitken, it is undisputed that the account history is
not a verbatim account of every word said during a phone call.
II
Given the Court’s findings of what transpired during the two calls in
question, the Court will now address whether these facts amount to a violation
of the law as claimed in the Plaintiff’s Complaint.
A
Regarding Audubon’s statement that Aitken’s failure to pay his debt could
subject him to criminal prosecution, the FDCPA provides in relevant part:
§ 1692e. False or misleading representations
A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any
debt. Without limiting the general application of the foregoing, the
following conduct is a violation of this section:
***
(4) The representation or implication that nonpayment of any debt
will result in the arrest or imprisonment of any person or the
seizure, garnishment, attachment, or sale of any property or wages
of any person unless such action is lawful and the debt collector or
creditor intends to take such action.
(5) The threat to take any action that cannot legally be taken or that
is not intended to be taken. . . .
***
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(7) The false representation or implication that the consumer
committed any crime or other conduct in order to disgrace the
consumer. . . .
***
(10) The use of any false representation or deceptive means to collect
or attempt to collect any debt or to obtain information concerning a
consumer. . . .
15 USC §1692e. Not being able to pay a debt is not a crime of any sort and
Illinois residents are not jailed for failing to pay their debts. See Bass v Stolper,
Koritzinsky, Brewster & Neider, SC, 111 F3d 1322, 1329 (7th Cir 1997) (“Appellants
misstate the law when they categorize all dishonored checks as criminal and
tortious”); IL Const Art 1, § 14 (“No person shall be imprisoned for debt unless
he refuses to deliver up his estate for the benefit of his creditors as provided by
law or unless there is a strong presumption of fraud”). The representation that
the Plaintiff committed a crime constitutes a “false, deceptive, or misleading
representation or means in connection with the collection of any debt” and “the
use of any false representation or deceptive means to collect or attempt to collect
any debt.” 15 USC §§ 1692e and e(10). False statements made by a debt collector
in the course of collecting a debt are per se violations of §§ 1692e and 1692e(10).
“Debt collectors may not make false claims, period.” Randolph v IMBS, Inc, 368
F3d 726, 730 (7th Cir 2004); Gearing v Check Brokerage Corp, 233 F3d 469, 472 (7th
Cir 2000) (“Section 1692e applies even when a false representation was
unintentional”).
“Monica’s” statements also violated §§ 1692e(4) and e(7) because she
represented that “nonpayment of any debt will result in the arrest or
imprisonment of any person” and that Mr. Aitken had “committed any crime or
other conduct in order to disgrace the consumer.”

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Audubon’s conduct during the August 3 telephone call also violates
subsection (5) of 1692e.

In its Order on summary judgment, this Court

previously held that the August 31 telephone call violated this provision, finding
that there was no genuine dispute of fact that Audubon never intended to use
legal action to collect the debt from the Plaintiff. However, regarding the August
3 telephone call, the Court found a genuine dispute existed regarding what
transpired during that call and, consequently, summary judgment on that
question was denied. (D. 54 at ECF pp. 8-10).
Having now found that Aitken’s version of the August 3 telephone call is
the more likely than not version of events, it necessarily follows that Audubon’s
threat to take legal action during that telephone call violates Section 1692e(5) for
the same reasons found in the Court’s summary judgment Order with respect to
the August 31 telephone call. At both the summary judgment and trial stages of
this case, Audubon presented no evidence that it ever intended to take legal
action to collect the Plaintiff’s debt.
Accordingly, Audubon’s conduct during the August 3, 2012 telephone call
with the Plaintiff violates 15 USC § 1692e(4), e(5), e(7), and e(10).
B
Regarding the November 13, 2012 telephone call between Audubon and
Judy Aitken, Section 1692c(b) of the FDCPA provides:
(b) Communication with third parties
Except as provided in section 1692b of this title, without the prior
consent of the consumer given directly to the debt collector, or the
express permission of a court of competent jurisdiction, or as
reasonably necessary to effectuate a postjudgment judicial remedy, a
debt collector may not communicate, in connection with the
collection of any debt, with any person other than the consumer, his
attorney, a consumer reporting agency if otherwise permitted by
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law, the creditor, the attorney of the creditor, or the attorney of the
debt collector.
Judy Aitken’s testimony establishes that Audubon violated this provision of the
FDCPA when it disclosed to her, without the Plaintiff’s consent, that the Plaintiff
owed them a debt.
Accordingly, Audubon’s conduct during the August 31, 2012 telephone
call with Judy Aitken violates 15 USC § 1692c(b).
C
Regarding the August 31, 2012 telephone call, this Court previously found
in its Order on summary judgment that Audubon’s conduct violates 15 USC
§1692e(5).
D
The Defendant asserts that, even if it engaged in the conduct as alleged by
Aitken and as now found by this Court, it has proved by a preponderance of the
evidence that it may avoid liability due to the bona fide error defense. (D. 68 at
ECF pp. 8-9). Section 1692k(c) of 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 USC § 1692k(c).
To prove the defense, Audubon had to prove that “the violation: (1) was
unintentional, (2) resulted from a bona fide error, and (3) occurred despite the
debt collector's maintenance of procedures reasonably adapted to avoid such
error.” Ruth v Triumph Partnerships, 577 F3d 790, 803 (7th Cir 2009). Audubon
failed to prove any of these prongs.
To prove the first prong, Audubon had to show that its violations of the
FDCPA were unintentional. This is a subjective test which “often can only be
9

shown by inferential evidence.” Johnson v Riddle, 443 F3d 723, 728 (10th Cir 2006).
The extent to which Monica “should have objectively realized that [her] actions
were in violation of law may be inferentially probative of the subjective
intentional nature of that violation.” Id at 729. By this standard, Monica’s false,
misleading, and deceptive statements on August 3 and August 31 were plainly
intentional violations of the FDCPA. Monica’s statements were blatant,
intentional violations of express, unambiguous provisions of the FDCPA
intended to scare an unsophisticated consumer into paying a debt.
For the same reason, Audubon cannot prove the second prong of the bona
fide error defense. Monica’s violations were not the result of good faith errors, ie,
“a genuine mistake, as opposed to a contrived mistake.” See Black's Law
Dictionary 168 (7th ed 1999) (defining ‘bona fide’ as ‘1. Made in good faith;
without fraud’ and ‘2. Sincere; genuine’).” Kort v Diversified Collection Services,
Inc, 394 F3d 530, 538 (7th Cir 2005). Likewise, the disclosure of Aitken’s debt to
his mother was not a bona fide error. Neilson v Dickerson, 307 F3d 623, 641-42 (7th
Cir 2002) (actions taken in “plain contravention” of settled law not entitled to
bona fide error defense).
Finally, Audubon failed to prove the third prong of the defense, namely
that its procedures were “reasonably adapted to avoid” the errors that resulted
in the violations of the FDCPA at issue here. Audubon’s representative, Randy
Zaffran, testified that, even though the technology existed in 2012, Audubon did
not tape its collectors’ telephone conversations with debtors and others. In 2012,
the only safeguard against FDCPA violations was (1) training and (2) Mr. Zaffran
– who was responsible for monitoring fifteen collectors simultaneously by
walking in and around their cubicles, listening to, and occasionally joining their
conversations.
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That Mr. Zaffran disciplines collectors “all the time” suggests that
Audubon’s training of collectors is ineffective. Moreover, the blatant violations of
the FDCPA ascribed to Ms. Mottorn acting while using the name “Monica”
occurred when she was far more than a neophyte also points to the
ineffectiveness of Audubon’s training procedures. And the fact that Monica was
able to blatantly violate the FDCPA on two separate occasions, together with
Brandi Hill’s disclosure of Aitken’s debt to his mother, suggests that Mr.
Zaffran’s efforts to monitor his collectors by walking around and listening to
their conversations is not a procedure “reasonably adapted to avoid” the errors
resulting in violations of the FDCPA.
For the foregoing reasons, Audubon has not met its burden of proving its
bona fide error defense.
E
The Plaintiff also alleges that Audubon’s conduct violations the ICAA, 225
ILCS 425/1 et seq and the ICFA, 815 ILCS 505/2. Given the findings of fact this
Court has made, the same conduct which violates the FDCPA violates both of
these Illinois Acts as well. However, as set forth in more detail below, because
Aitken has failed to establish actual damages, he cannot recover any damages
under either of these Illinois Acts.
III
On the question of damages, the questions before the Court are: 1) the
amount, if any, in statutory damages under the FDCPA to which Aitken is
entitled; 2) the amount, if any, of actual damages to which Aitken is entitled; and
3) the amount, if any, of punitive damages under the ICAA to which Aitken is
entitled.

11

A
The FDCPA provides that a successful plaintiff in an individual action
against a debt collector can recover actual damages and statutory damages not to
exceed $1,000. 15 USC § 1692k(a)(1)-(2)(A). In determining whether to award
statutory damages, the Court should consider “the frequency and persistence of
noncompliance by the debt collector, the nature of such noncompliance, and the
extent to which such noncompliance was intentional.” 15 USC § 1692k(b)(1).
Here, Aitken is entitled to $1,000 in statutory damages because Audubon’s
violation of the FDCPA was intentional and egregious. As discussed above,
Audubon violated multiple provisions of the FDCPA in connection with the
August 3 call, the August 31 voice mail, and the November 13, 2012 disclosure to
Judy Aitken that the Plaintiff owed a debt. The Court has already found in favor
of plaintiff on “Monica’s” violation of § 1692e(5) during her August 31 voice
message. Courts in the Seventh Circuit have awarded $1,000 in statutory
damages for far less egregious violations of the FDCPA. Kaylor-Trent v John C.
Bonewicz, PC, 910 F Supp 2d 1112, 1115 (CD Ill 2012) (awarding $1,000 for single
telephone call which failed to identify the caller’s identity and to disclose that the
communication was from a debt collector); Carlile v North American Asset Service,
LLC, 2010 WL 5125846, *2 (CD Ill) (awarding $1,000 for various violations of the
FDCPA); Raimondi v McAllister & Associates, Inc, 50 F Supp 2d 825, 830 (ND Ill
1999) (awarding $1,000 for single letter to plaintiff which threatened to contact
plaintiff’s employer). In other words, the number of violations, the multiple
provisions of the FDCPA which those violations contravened, and the serious
nature of telling a debtor that his failure to pay a debt is a felony, support in
combination an award of statutory damages at the $1,000 cap.

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B
A Plaintiff may also recover actual damages for violations of the FDCPA,
ICCA, and the IFCA, and such actual damages may include emotional distress.
See 15 USC § 1692k(a); 815 ILCS 505/10a; Osborne v JRS-I, Inc, 949 F Supp 2d 807,
813 (ND Ill 2013); Clodfelter v United Processing, Inc, 2008 WL 4225557, *4 (CD Ill
2008); Bassett v IC System, Inc, 715 F Supp 2d 803, 811-12 (ND Ill 2010); Sherman v
Field Clinic, 392 NE2d 154, 161 (Ill App 1979).
Aitken seeks $50,000 in actual damages due to extreme emotional distress
caused by his fear of criminal prosecution for his failure to pay his debt. Aitken
testified that for six months after the calls in August of 2012, his extreme
emotional distress due to his fear of arrest continued. (D. 70 at ECF p. 211).
Aitken also testified to various actions he took which, according to him, evinced
his fear of arrest during this period. Aitken’s testimony regarding his emotional
distress due to a fear of arrest or criminal prosecution is, however, not credible
and, consequently, he has failed to establish any actual damages by a
preponderance of the evidence.
Specifically, it is undisputed that the call referencing criminal conduct
occurred on August 3, 2012. Attorney Patrick Chambers credibly testified that no
later than August 6, 2012, Aitken contacted him regarding the debt Audubon
was seeking to collect. (D. 70 at ECF p. 22). In other words, at most, Aitken
contacted Chambers within three days of the August 3, 2012 telephone call from
Audubon.
During the conversation between Chambers and Aitken, Chambers
testified that Aitken was upset and indicated that if he did not pay his debt then
“something was going to happen to him.” (D. 70 at ECF p. 23). Chambers did
not have a more specific recollection of what that “something” might be,
although Aitken testified he asked if Chambers could arrange bail if he were
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jailed in relation to his debt. (D. 70 at ECF p. 150). Chambers said that whatever it
was that Aitken was worried about, he told Aitken it was not permitted under
Illinois law or the FDCPA.

(D. 70 at ECF p. 30-31).

At the end of the

conversation, Chambers testified that the he said the following:
At the end of it I, I said that would not be allowed under the Fair
Debt Collection Act. But I don't work in that area, but I can give you
a phone number of a firm that works in consumer protection cases,
and he said he wanted that. I gave him the phone number and I
wished him good luck.
(D. 70 at ECF p. 24). The number given by Chambers to Aitken was the number
of the firm which presently represents Aitken in the case at bar (D. 70 at ECF p.
25). Although at trial Aitken testified that he contacted that firm within a matter
of “weeks” after the call with Chambers, he testified during his April 3, 2014
deposition that it was a “matter of days, if that” and “[i]t was fairly quickly that I
was able to make contact, I believe.” (D. 70 at ECF p. 204-205).
In other words, no more than three days after the August 3, 2012 telephone
call, Aitken had contact with an attorney who told him that what he was worried
about was not allowed under Illinois law or the FDCPA. Within very short order,
he was then in contact with his present counsel, experienced litigators of FDCPA
claims.
Despite the reassurances from Chambers, and the reasonable inference of
similar reassurance from the firm presently representing him, Aitken testified
that his extreme emotional distress due to his fear of arrest continued for nearly
six months, he testifying that “[i]t took me a while for me to come to the
understanding – in fact, early March – that the likelihood of me being arrested
was slim,” even though the case at bar was filed in December. (D. 70 at ECF p.
213). This testimony is preposterous, and Aitken’s testimony as to his extreme
emotional distress is incredible.
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No reasonable person, having been advised by an attorney within at most
three days of the offending telephone call that an arrest for failure to pay a debt
was prohibited by Illinois and Federal law, and thereafter within days being
again so advised by a firm which practices in FDCPA litigation, could have
feared arrest or prosecution for failure to pay a debt. Even more so could no
reasonable person continuie to harbor such fears for an additional three months
after this case was filed specifically alleging that the threat of criminal
prosecution violated Illinois and Federal law. The testimony is quite simply
unbelievable and so preposterous to make all his other testimony about his
alleged damages completely unreliable.
Nor did the testimony of Aitken’s wife, Jill Aitken, in any way support his
testimony; she could not corroborate any of Aitken’s claims of distress, during
the relevant time period not recalling phone calls from collectors coming to the
house, never hearing any recorded messages regarding debts, never noticing any
unusual behavior on the part of her husband, never finding him to seem irritable,
never noticing any normal sleep interruption except for that due to their child
awakening him, never experiencing marital strife, and never being told by
Aitken that he feared being arrested until after this lawsuit was filed, more than
five months after the August 3, 2012 telephone call.
Finally, the testimony of Aitken’s letter carrier, Brian Robinson, does not
alter the Court’s credibility analysis. (D. 70 at ECF pp. 33-43). Robinson testified
that some time during the Fall of 2012, he had a conversation with Aitken out by
his mailbox. Robinson testified that Aitken asked “if anybody had been looking
for him or anybody in the area had been asking about him.” (D. 70 at ECF p. 38).
He also stated that Aitken’s demeanor was “very scared and just looking out at
what was going on around, as if somebody was looking for him.” (D. 70 at ECF
p. 38). Given the ambiguity regarding the precise time period and the lack of
15

specificity as to why Aitken may have been scared and looking around, there
simply is not enough evidence to demonstrate that this lone incident was linked
directly to the August 3, 2012 telephone call. 3
In sum, given that the evidence on actual damages was almost entirely
Aitken’s testimony and given that Aitken’s testimony was incredible, the
Plaintiff has failed to establish by a preponderance of the evidence that he has
actual damages of any sort under the FDCPA, ICCA, and IFCA.
Given Aitken’s failure to establish actual damages, the Court concludes
that punitive damages under the ICAA and ICFA are not warranted in this case,
especially in light of Aitken’s incredible testimony concerning his alleged actual
damages.
IV
As set forth, supra, the Defendant is found liable for violating the FDCPA,
ICCA, and IFCA. The Plaintiff is awarded $1,000 in statutory damages, but no
actual, compensatory, or punitive damages.
Because the FDCPA requires an award of costs and attorney’s fees to the
successful consumer, the Plaintiff shall submit a petition for fees and costs on or
before 30-days from the date of this Order. 15 USC § 1692k(a); Tolentino v
Friedman, 46 F3d 645, 651 (7th Cir 1995). In preparing such petition, the Court
directs the Plaintiff to be mindful of Kaylor-Trent v Bonewicz, PC, 916 F Supp 2d
878 (CD Ill 2013).
So Ordered.
Entered on April 17, 2015
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE
Aitken produced no evidence to support a finding of actual damages stemming from the November
telephone between his mother and Audubon.

3

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