Dasilva et al v. Citimortgage, Inc. et al

Filing 97

MEMORANDUM Opinion and Order signed by the Honorable Ronald A. Guzman on 4/25/2013. Mailed notice (cjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MODUPE DASILVA, et al.
Plaintiffs,
v.

LAW OFFICE OF IRA T. NEVEL,
INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

12 C 13
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
Modupe and Anthony DaSilva filed suit against the Law Office of Ira T. Nevel (“Nevel”)
alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692g(a),
(b), and (d). The DaSilvas allege that on October 7, 2011, they sent a Qualified Written Request
(“QWR”) to “Citimortgage, Inc., c/o Law Offices of Ira T. Nevel” requesting verification and
validation of their mortgage debt. (Third Amended Complaint (“TAC”), Dkt. # 79, ¶ 6.)
According to the DaSilvas, despite having received the letter, Defendant did not verify the debt
and continued collection activity. (Id. ¶ 7.) Nevel now moves for summary judgment. For the
reasons stated herein, the motion is granted in part and denied in part.
Standard
Summary judgment is proper “if the movant shows that 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);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Thus, in order to withstand a motion for
summary judgment, the nonmoving party must show that a dispute about a genuine issue of
material fact exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
nonmoving party may not merely rest upon the allegations or details in his pleading, but instead,
must set forth specific facts showing there is a genuine issue for trial. See Celotex, 477 U.S. at
322; Anderson, 477 U.S. at 248. To succeed on a summary judgment motion, the evidence must
be such “that [no] reasonable jury could return a verdict for the nonmoving party.” Anderson,
477 U.S. at 248.

Analysis

15 U.S.C. § 1692g(a)1
Section 1692g(a)(1) - (5) provides that:
Within 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-(1) the amount of the debt;
(2) the name of the creditor to whom 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-day period that the debt, or any portion thereof, is disputed, the debt
collector will obtain verification of the debt or a copy of a 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.
On February 3, 2010, Nevel filed a foreclosure action against the DaSilvas in the Circuit
Court of Will County. (Pls.’ LR 56.1(b)(3)(B) Stmt., Dkt. # 92, ¶ 4.) Summons was issued and
served upon the DaSilvas in the foreclosure matter on February 10, 2010. (Id. ¶ 5.)2 Nevel
argues that the notice required under §§ 1692g(a)(1) - (5) (“FDCPA Notice”) was attached to the
summonses that were served upon the DaSilvas. (Def.’s LR 56.1(a) Stmt., Dkt. # 90, ¶ 4.)
“A debt collector violates § 1692g(a) by not sending a § 1692g(a) notice along with or
within five days of its initial communication with a debtor.” Allen v. Bank of Am., N.A., No. 11
C 9259, 2012 WL 5412654, at *4 (N.D. Ill. Nov. 6, 2012). However, the filing of a foreclosure
suit is not the initial communication within the meaning of § 1692(a) the FDCPA. Id. (citing 15
U.S.C. § 1692g(d) (“A communication in the form of a formal pleading in a civil action shall not
be treated as an initial communication for purposes of subsection (a) of this section.”)). Thus,

1

It is not clear to the Court whether the DaSilvas intend to assert a claim under §
1692g(a)(1) - (5). While the complaint cites these subsections of the FDCPA and the parties
appear to address the claim in their summary judgment papers, the TAC contains no allegations
supporting the claim. However, because the parties address the claim in the their summary
judgment briefs, the Court does as well.
2

Although Nevel’s statements of fact are misnumbered, the Court’s citations are to the
paragraphs in proper numerical order.
2

Nevel’s assertion that it sent the required FDCPA Notice when the summons and complaint were
served in the foreclosure is irrelevant to this claim.
It is simply unclear from the record when, if ever, Nevel had an “initial communication”
with the DaSilvas within the meaning of the FDCPA such that Nevel then had five days to send
the written notice required under § 1692g(a). Therefore, Nevel’s motion for summary judgment
on the § 1692g(a) claim is denied.
15 U.S.C. § 1692g(b)
Under 15 U.S.C. § 1692g(b):
If the consumer notifies the debt collector in writing within the thirty-day period
described in subsection (a) of this section that the debt, or any portion thereof, is
disputed, or that the consumer requests the name and address of the original
creditor, the debt collector shall cease collection of the debt, or any disputed
portion thereof, until the debt collector obtains verification of the debt or a copy
of a judgment, or the name and address of the original creditor, and a copy of
such verification or judgment, or name and address of the original creditor, is
mailed to the consumer by the debt collector.
The requirement under this section that a debt collector cease collection of a debt if a
consumer notifies the debt collector that the debt is disputed or requests the name and address of
the original debtor is only activated if the consumer sends a notice within thirty days after the
initial communication from the debt collector. 15 U.S.C. § 1692g(b). As noted by another court
in this district:
If the collector never sends the debtor a § 1692g(a) notice, then the thirty-day
period never commences or occurs, which means that it is impossible for the
debtor to demand validation within that (non-existent) thirty-day period. Under
these circumstances, § 1692g(b)’s requirement that the collector validate the debt
is never triggered.
Allen, 2012 WL 5412654, at *5. Because in this case a violation of § 1692g(b) is contingent on
§ 1692g(a), and the claim under § 1692g(a) cannot be resolved given the evidence in the record,
the Court also cannot resolve the § 1692g(b) claim. Nevel contends that the DaSilvas’ allegation
that they sent a Qualified Written Request and validation of debt letter to Nevel on October 7,
2011 (TAC, Dkt. # 79, ¶ 6) dooms their § 1692g(b) claim because October 7, 2011 is well
outside the thirty-day period from the date they served the FDCPA Notice on the DaSilvas.
However, as already noted, the filing of a foreclosure suit is not the initial communication within
the meaning of § 1692g(a). Because the record does not reflect, when, if ever the “initial
communication” occurred, the Court denies summary judgment as to this claim.
15 U.S.C. § 1692d
3

The DaSilvas also appear to allege a violation of § 1692d in their TAC. While the TAC
actually mentions § 1692g(d) (TAC, Dkt. # 79, Count I: Validation of Debts, 15 U.S.C. §
1692g(a)(1) - (5), (b), and (d)), that section simply states that “[a] communication in the form of
a formal pleading in a civil action shall not be treated as an initial communication for purposes
of subsection (a) of this section,” 15 U.S.C. § 1692g(d), and does not provide a ground for relief.
Because Nevel addresses the claim under § 1692d, which provides in relevant part that “[a] debt
collector may not engage in any conduct the natural consequence of which is to harass, oppress,
or abuse any person in connection with the collection of a debt,” 15 U.S.C. § 1692d, the Court
also construes the TAC to allege a claim under § 1692d, not § 1692g(d).
Nevel contends that the DaSilvas make no allegations nor present any evidence that
Nevel engaged in harassing or oppressive conduct and the Court agrees. The DaSilvas do not
respond to the argument in their summary judgment response. Accordingly, to the extent that the
DaSilvas alleged a claim under § 1692d, the Court grants judgment to Nevel on this claim.
Conclusion
The Court grants Nevel’s motion for summary judgment in part and denies it in part. The
parties are directed to appear on May 10, 2013, at 9:30 a.m. in order to set a trial date. The Court
strongly urges the parties to discuss settling this matter.

Date: April 25, 2013

__________________________________
United States District Judge
Ronald A. Guzmán

4