Momient v. Northwest Collectors, Inc.
Filing
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MEMORANDUM OPINION AND ORDER Signed by the Honorable James B. Zagel on 12/3/2014. Mailed notice(cdh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LEE ARTHUR MOMIENT,
Plaintiff,
No. 13 C 2140
Judge James B. Zagel
v.
NORTHWEST COLLECTORS, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Lee Arthur Momient (“Plaintiff”) filed a 325- count complaint against debt collection
agency, Northwest Collectors, Inc. (“Defendant” or “NCI”) alleging violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et seq., Fair Credit Reporting Act, 15 U.S.C. § 1681
et seq., the Telephone Consumer Protection Act, 47 U.S.C. § 221 et seq., Illinois Collection
Agency Act, Illinois Consumer Fraud Act, and alleging that Defendant committed an invasion of
privacy, intentional infliction of emotional distress, and fraud. Currently before the court is
Defendant’s motion for summary judgment. For the following reasons, Defendant’s motion is
granted in part and denied in part.
I. BACKGROUND
Defendant claims that North Shore Pathology Consultants and Consultant Radiologists of
Evanston referred NCI two separate debts for collection purposes totaling $98.00 and $1,100.00,
respectively, which were owed by Plaintiff Lee Arthur Momient. NCI claims that Momient
provided his cell phone number, 773-XXX-3989, to St. Francis Hospital. NCI and Momient
dispute whether Momient consented to being contacted at this number and whether Momient told
his medical providers not to contact him at the number provided for purposes of collection.
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In November 2011, NCI claims that it sent Momient a validation notice for each
account, neither of which was returned undeliverable, and began collection efforts on the $1,100
debt on November 4, 2011 and on the $98.00 debt on November 11, 2011 by contacting Plaintiff
at 773-XXX-3989. NCI claims that Plaintiff did not respond in writing or via telephone to the
validation notice. On May 5, 2012, Momient called NCI and told an agent that he mailed a letter
to NCI requesting it cease calling him to collect the debts. NCI claims it received a mailed
envelope from Momient containing only a blank piece of paper, not a written dispute, with a
return address on the envelope of “LM 7228 N. Bell, Chicago, IL,” dated February 6, 2012. NCI
claims that it was not aware that the envelope was from Plaintiff until he called NCI on May 5,
2012, but that after Plaintiff disputed the debt orally over the phone, it marked the debts as
disputed, updated the accounts as disputed to the credit reporting agencies, and did not call
Plaintiff again.
NCI, a member of ACA International, claims that it trains its employees to be state and
federal law compliant, educates its collectors, and tests its collectors upon hiring and annually.
NCI claims that, upon receiving a written request to cease any and all further collection efforts,
NCI notates the file to alert collectors not to make any calls or send any notices to the debtor and
blocks the number as a “NO_CALL_PHONE.” NCI claims that it has a policy to send validation
notices and promptly respond to disputes received from consumers via the eOscar system by
investigating disputes, verifying disputed information in its records and client’s records, and
updating and/or removing inaccurate credit information. If an investigation validates the
information on the account, NCI will report the information as accurate. NCI contends that it has
never received less than a 100% rating from eOscar.
NCI received three “eOscar” disputes from Momient; two disputes were received on
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May 30, 2013 for Momient’s debts with Consultant Radiologists and North Shore Pathology
Consultants and one on May 31, 2013 for Momient’s debts with Consultant Radiologists. NCI
claims that, after reviewing its records and conferring with its clients, NCI responded to credit
reporting agencies (“CRAs”) Experian and Trans Union on May 31 and June 3, 2014,
respectively, that the accounts were accurate.
II. LEGAL STANDARD
Summary judgment should be granted when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of triable fact exists only if “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Pugh v. City of
Attica, Ind., 259 F.3d 619, 625 (7th Cir.2001). The Court’s “function is not to weigh the evidence
but merely to determine if there is a genuine issue for trial.” Bennett v. Roberts, 295 F.3d 687,
694 (7th Cir. 2002).
Once the moving party has set forth the basis for summary judgment, the burden then
shifts to the nonmoving party who must go beyond mere allegations and offer specific facts
demonstrating that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d. 265 (1986). The nonmoving party
must offer more than “[c]onclusory allegations, unsupported by specific facts” in order to
establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th
Cir.2003)(citing Lujan v. Nat’l Wildfire Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d
695 (1990)). A party will be successful in opposing summary judgment only if it presents
“definite, competent evidence to rebut the motion.” EEOC v. Sears, Roebuck & Co., 233 F.3d
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432, 437 (7th Cir. 2000). A non-moving party’s own affidavit that does not contradict any prior
sworn statement, even if uncorroborated and self-serving, can constitute affirmative evidence to
defeat a summary judgment motion. U.S. v. Funds in Amount of One Hundred Thousand One
Hundred and Twenty Dollars ($100,120.00), 730 F.3d 711, 718 (7th Cir. 2013). Still, a plaintiff
cannot rest on the allegations contained in his complaint to oppose a properly supported
summary judgment motion made against him. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
106 S.Ct. 2505 (1986)(citing First Nat. Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968).
At summary judgment, the only question is whether, after considering the record in the
light most favorable to the nonmoving party and drawing all reasonable inferences in the nonmoving party’s favor, there is a genuine dispute regarding any material fact precluding judgment
as a matter of law. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.2002).
III. DISCUSSION
1.
Count 324: Fraud
Plaintiff’s fraud claim is based on a theory that NCI “engaged in a systematic scheme to
charge and attempt to collect from the plaintiff unnecessary and wholly inaccurate sums of
money.” Defendant has offered evidence that it was referred two outstanding debts, owed by
Plaintiff, from North Shore Pathology Consultants and Consultant Radiologists of Evanston.
Defendant has additionally offered evidence to support a finding that NCI attempted to collect
debts and that, upon receiving a dispute via eOscar, it investigated and verified the disputed
account information, according to company policy. Plaintiff has not presented any evidence that
the referred debts were inaccurate sums of money and has failed to rebut evidence offered by
Defendant that it was engaged in the lawful collection of referred debts. As Plaintiff has neither
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sufficiently alleged the “who, what, where, when, or how” of a fraudulent scheme nor offered
any evidence to plausibly show that NCI engaged in any kind of fraudulent scheme, I grant
summary judgment in favor of Defendants as to Count 324.
2.
Counts 304 – 323, Illinois Collection Agency Act (ICAA)
Plaintiff alleges that NCI violated the 225 ILCS 425/9 ICAA because NCI engaged in
“dishonorable, unethical or unprofessional conduct” and did not disclose its name to Plaintiff.
Defendant argues that Plaintiff has no private right of action under § 9, which reserves a right of
action to the “Department” and “Attorney General.” An implied right of action has been found in
the few cases brought under the ICAA where Plaintiff has shown that he suffered an actual
injury. McCabe v. Crawford & Co., 272 F.Supp.2d 736, 751-52 (Ill. N.D. 2003). In any case, I
need not address whether Plaintiff has sufficiently alleged a private right of action under the
ICAA, as I agree with Defendant that Plaintiff’s failure to respond to NCI’s argument in
response to the summary judgment motion results in waiver of this claim. Havoco of America,
Ltd. v. Sumitomo Corp. of America, 971 F.2d 1332, 1336 (7th Cir. 1992); Arendt v. Vetta Sports,
Inc., 99 F.3d 231, 237 (7th Cir. 1996). I grant Defendant’s motion for summary judgment with
respect to Counts 304 through 323.
3.
Remaining Counts under the FDCPA (1-80), TCPA (81-148), FCRA (149 – 221), ICFA
(325), and state law claims of privacy (222 – 262) and intentional infliction of emotional
distress (263 – 303)
Defendant, as the moving party, has offered evidence in support of its motion for
summary judgment. Plaintiff, rather than rebutting Defendant’s evidence with his own evidence
(with the exception of his limited affidavit), “disagrees and objects” to much of Defendant’s
evidence on the basis that “the plaintiff has not had the opportunity to cross-examine the nonparty” or a blanket, “This is a disputed issue of fact for the trier of fact.” This case appears to be
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going nowhere and must be resolved. I order Plaintiff to appear for a discovery conference at
which he must provide the basis for his request to cross-examine non-party producers of
documents and witnesses. Plaintiff, an experienced pro se litigator who has filed numerous
complaints alleging violations of the FDCPA, TCPA, FCRA, and ICFA, 1 is no longer a classic
layperson and is not presumed to be unprepared. If Plaintiff is unable to appear at the ordered
date, he must provide evidence to explain the reason for his failure to appear.
4.
Defendant’s Motion to Sanction
Defendant additionally moves the Court to sanction Plaintiff pursuant to 15 U.S.C.
§ 1692k(1)(3) and Fed. R. Civ. P. 11 for pursuing a meritless complaint. Defendant requests that
the Court grant default judgment in favor of the Defendant and dismiss Plaintiff’s Complaint
with prejudice. Plaintiff has caused numerous delays and failed to respond to discovery requests
in a timely manner, including Plaintiff’s failure to respond, after numerous extensions, and
ultimately resulting in this Court ordering Defendant’s “Requests to Admit” to be admitted. Dkt.
# 55. This motion appears to have some grounds, and I will give Plaintiff an opportunity to
respond.
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Momient v. Kahn, Winnemac, et al., No. 12 cv 8195 (N.D.Ill.); Momient v. Hy Cite, Inc., et al., No.11‐cv‐4417
(N.D.Ill)(filed 06/29/2011); Momient v. Peoples Energy, et al., No. 11‐cv‐4420 (N.D.Ill.)(filed 06/29/2011); Flava
Works, Inc. v. Momient, No. 11‐cv‐06306 (N.D.Ill.)(filed 09/09/2011); Momient v. Schuster, et al., No. 11‐cv‐08001
(N.D.Ill.)(filed 11/10/2011; Momient v. The CBE Group, Inc., No. 12‐cv‐00615 (N.D.Ill.)(filed 01/27/2012);
Momient v. NCO Financial Sys., et. al., No. 12 cv 04453 (N.D. Ill.)(filed 06/07/12); Momient v. Harris & Harris,
Ltd., et al., No. 12‐cv‐04540 (N.D.Ill.)(filed 06/12/2012); Momient v. Northwest Collectors, Inc., No. 13‐cv‐02140
(N.D.Ill.)(filed 03/20/2013); Momient v. Portfolio Recovery Associates LLC, No. 13‐cv‐04648 (N.D.Ill.)(filed
06/25/13); Momient v. MiraMed Revenue Group, LLC, No. 13:cv‐04943 (N.D.Ill.)(filed 07/10/2013); Momient v.
GE Capital Retail Bank FSB, No. 13‐cv‐05138 (N.D. Ill.)(filed 07/18/13); Momient v. Experian Information
Solutions, Inc., et al., No. 13:cv‐05187 (N.D.Ill.)(filed 07/19/2013); Momient v. Nationwide Credit, No.
13‐cv‐06118 (N.D. Ill.) (filed 08/27/13); Momient v. Bell/Touhy, et al., Circuit Court of Cook County, No. 2011 L
708874; Momient v. Kerasotes Showplace, Circuit Court of Cook County, No. 2010‐M1‐302831 (filed 11/02/10);
Momient v. City of Chicago Revenue, Circuit Court of Cook County, No. 2011‐M1‐625749 (filed 12/05/11);
Momient v. Izquierdo Yvonne, Circuit Court of Cook County, No. 2012‐L‐002257 (filed 02/29/12); Momient v.
Harris and Harris, Circuit Court of Cook County, No. 2012‐M2‐000974 (filed 05/07/12); Momient v. Credit
Collection, Circuit Court of Cook County, No. 2013‐M1‐135721 (filed 06/18/13); Momient v. American Collection,
Circuit Court of Cook County, No. 2013‐M1‐136041 (filed 06/18/13); Momient v. Silver Properties, No. 14 CV
3193 (filed 05/01/2014). (Dkt. #31 ¶2).
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IV. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is granted as to
Counts 304 through 324. I stay ruling on the remaining counts of Defendant’s motion for
summary judgment and Defendant’s motion for sanctions.
ENTER:
James B. Zagel
United States District Judge
DATE: December 3, 2014
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