Portalatin v. Blatt, Hasenmiller, Leibsker & Moore LLC et al

Filing 113

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 2/20/2016: For the reasons stated in the accompanying decision, the Court denies Blatt's motion to alter or amend the judgment, or in the alternative for relief from ju dgment [dkt. no. 105]. The ruling date of February 29, 2016 is vacated. The case is set for a status hearing on that same date, at 8:30 a.m. in chambers (Room 2188), to discuss a schedule for briefing plaintiff's anticipated petition for attorney's fees. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IWONA PORTALATIN,
Plaintiff,
vs.
BLATT, HASENMILLER,
LEIBSKER & MOORE, LLC, and
MIDLAND FUNDING LLC,
Defendants.

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Case No. 14 C 8271

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Iwona Portalatin sued Blatt, Hasenmiller, Leibsker & Moore, LLC, and Midland
Funding, LLC, alleging that they violated the venue provision of the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C. § 1692i(a). Portalatin also alleged that Midland
violated the Illinois Consumer Fraud Act (ICFA), 815 ILCS 505/2. Portalatin's claims
were based on her allegation that Blatt, a law firm, filed a debt collection suit against her
on Midland's behalf in the Circuit Court of Cook County's First Municipal District rather
than in its Fourth Municipal District, where Portalatin resided. Portalatin settled with
Midland in July 2015 but proceeded to trial on her FDCPA claim against Blatt. In
November 2015, a jury found in favor of Portalatin and awarded her $200 in statutory
damages. Pursuant to Federal Rule of Civil Procedure 59(e), Blatt has moved to alter
or amend the judgment, or alternatively for relief from judgment pursuant to Rule
60(b)(5). For the reasons stated below, the Court denies Blatt's motion.

Background
The Court assumes familiarity with the facts of this case and will summarize them
only briefly here. A more detailed recounting of Portalatin's allegations can be found in
the Court's August 28, 2015 decision on the parties' cross-motions for summary
judgment. See Portalatin v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 2015 WL
5117077, at *1 (N.D. Ill. Aug. 28, 2015).
In October 2013, Blatt filed suit in the Circuit Court of Cook County against
Portalatin on behalf of Midland to collect an outstanding consumer debt. Midland
Funding LLC v. Iwona Portalatin, 2013-M1-154928 (Ill. Cir. Ct. Cook Cty.). Portalatin
lives in Elmwood Park, Illinois, which is located within the Circuit Court of Cook County's
Fourth Municipal District; the courthouse for that district is in Maywood. Rather than
filing suit there, Blatt filed in the First Municipal District, the courthouse for which is in
downtown Chicago at the Richard J. Daley Center. The state court entered a default
judgment against Portalatin in April 2014, and Blatt sought to enforce the judgment by
wage garnishment a short time later.
Under the FDCPA, "[a]ny debt collector who brings any legal action on a debt
against any consumer shall . . . bring such an action only in the judicial district or similar
legal entity—(A) in which such consumer signed the contract sued upon; or (B) in which
such consumer resides at the commencement of the action." 15 U.S.C. § 1692i(a).
Portalatin filed this lawsuit in October 2014. In Count 1, she alleged that Blatt violated
the FDCPA "when it caused an ex-parte judgment to be entered against [Portalatin] in
the Collection Case on April 29, 2014, at the Richard J. Daley Center Courthouse, a
location some 8 miles further from [her] home than the Maywood Courthouse." Pl.'s

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Compl., dkt. no. 1, ¶ 33. In Count 2, Portalatin made an identical allegation against
Midland, id. ¶ 41, based on the contention that "Midland directed Blatt to sue [Portalatin]
at a remote courthouse in order to discourage her from appearing and defending the
Collection Case." Id. ¶ 43. In Count 3, Portalatin alleged that Midland violated the ICFA
because it knowingly filed in the wrong judicial district in order to deceive Portalatin. Id.
¶ 48. Portalatin did not assert a claim under the ICFA against Blatt. On her FDCPA
claims against both defendants, Portalatin sought actual damages, statutory damages,
and costs and attorney's fees. On her ICFA claim against Midland, Portalatin sought
actual damages, punitive damages, and costs and attorney's fees.
In late July 2015, Portalatin filed a notice of settlement with Midland. On
September 28, 2015, Portalatin and Midland signed a "confidential settlement
agreement and release of claims." In it, Midland agreed to pay Portalatin five thousand
dollars and to release her from any and all claims related to the account it sought to
collect in the initial collection action. In exchange, Portalatin agreed to release Midland
from any and all claims she had against it, known or unknown.
In late September 2015—after Portalatin filed notice of her settlement with
Midland, but before the settlement agreement was signed—Portalatin's counsel
indicated in open court that she would no longer be seeking actual damages from Blatt.
With only the issue of FDCPA statutory damages against Blatt remaining, the Court
scheduled a two-day jury trial for late November 2015. Shortly before trial began, Blatt
moved to dismiss Portalatin's suit. In its motion, Blatt argued that the case was moot
because Midland's settlement fully compensated Portalatin for any and all damages she
could possibly recover against all defendants, including Blatt. The Court denied Blatt's

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motion in an oral ruling, and the case proceeded to trial. The jury returned a verdict
awarding Portalatin $200 in statutory damages.
Blatt has now moved to alter or amend the judgment pursuant to Federal Rule of
Civil Procedure 59(e), again based on its contention that Midland's settlement fully
compensated Portalatin for all of the monetary relief she could recover in her lawsuit.
Blatt seeks a setoff of the jury's verdict, asking this Court to reduce the amount awarded
to zero. Alternatively, Blatt requests relief from judgment pursuant to Federal Rule of
Civil Procedure 60(b)(5).
Discussion
"Altering or amending a judgment under Rule 59(e) is permissible when there is
newly discovered evidence or there has been a manifest error of law or fact."
Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006). Such a manifest error
of law occurs when a judgment "can be read to allow a plaintiff to recover twice for the
same injury." Duran v. Town of Cicero, 653 F.3d 632, 642 (7th Cir. 2011). "Vacating a
judgment under Rule 60(b) is permissible for a variety of reasons including mistake,
excusable neglect, newly discovered evidence, and fraud." Harrington, 433 F.3d at 546.
Relief under Rule 60(b) "is an extraordinary remedy and is granted only in exceptional
circumstances." Karraker v. Rent-A-Center, Inc., 411 F.3d 831, 837 (7th Cir. 2005)
(quotation marks omitted). Rule 59, on the other hand, demands slightly less; a movant
need only "clearly establish" grounds for relief. Harrington, 433 F.3d at 546.
The FDCPA permits plaintiffs to recover actual damages from defendants who
engage in unlawful debt collection activities, in addition to attorney's fees and costs.
Plaintiffs may also recover a limited amount of statutory damages. The FDCPA

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provides, in pertinent part:
Except as otherwise provided by this section, any debt collector who fails
to comply with any provision of this subchapter with respect to any person
is liable to such person in an amount equal to the sum of—
(1) any actual damages sustained by such person as a result of
such failure;
(2)(A) in the case of any action by an individual, such additional
damages as the court may allow, but not exceeding $1000; . . .
(3) in the case of any successful action to enforce the foregoing
liability, the costs of the action, together with a reasonable
attorney's fee as determined by the court.
15 U.S.C. § 1692k(a).
On the eve of trial, Blatt moved to dismiss this case based on the contention that
no live controversy existed between itself and Portalatin. Blatt argued that because the
FDCPA only permits an individual to recover statutory damages "not exceeding $1000,"
she could only recover one thousand dollars from Blatt and Midland collectively. Blatt
argued that via her settlement with Midland, Portalatin had recovered all that she could
possibly recover under the statute. This was especially true, argued Blatt, because
Portalatin had "abandoned any claim for actual damages," so the most she could
possibly recover was a thousand dollars in statutory damages and reasonable costs
and fees.
The Court denied Blatt's motion but determined that it did not need to decide
whether the FDCPA's cap on statutory damages applied to defendants collectively or
individually. Portalatin had originally sought actual damages in addition to the statutory
damages provided under the FDCPA, and it was not clear that she had abandoned her
claims for other damages prior to settling. The language of the settlement agreement

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with Midland did not indicate that her settlement was intended to cover the full extent of
possible statutory damages she could recover in her suit. The Court concluded that the
case was not moot and could proceed to trial.
The parties dispute whether the FDCPA's statutory damages cap applies on a
per-lawsuit or a per-defendant basis, but the Court need not resolve that question, on
which there is no binding Seventh Circuit authority. More important is the fact that
Portalatin sought damages from Midland above and beyond the statutory damages she
could receive under the FDCPA. Specifically, Portalatin sought actual damages under
the FDCPA as well as actual damages—from Midland alone—under the ICFA, which
allows for actual damages related to "aggravation and inconvenience" when
accompanied by actual economic injuries. See Morris v. Harvey Cycle & Camper, Inc.,
392 Ill. App. 3d 399, 403, 911 N.E.2d 1049, 1054 (2009); Roche v. Fireside Chrysler–
Plymouth, Mazda, Inc., 235 Ill. App. 3d 70, 86, 600 N.E.2d 1218, 1228 (1992).
Portalatin also sought punitive damages against Midland under the ICFA, and she
sought attorney's fees under both the FDCPA and the ICFA. As mentioned above,
Portalatin continued to pursue recovery of all of these types of relief against Midland
until she settled with Midland.
For these reasons, even if the FDCPA permits only one recovery of statutory
damages from multiple defendants in a case like this one, Portalatin's settlement with
Midland is reasonably attributable to other types of relief, some of which she did not
seek against Blatt (actual and punitive damages under the ICFA). Accordingly,
Portalatin did not achieve double recovery via the settlement with Midland and the $200
judgment against Blatt, and no setoff is required.

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Conclusion
For the foregoing reasons, the Court denies Blatt's motion to alter or amend the
judgment, or in the alternative for relief from judgment [dkt. no. 105]. The ruling date of
February 29, 2016 is vacated. The case is set for a status hearing on that same date,
at 8:30 a.m. in chambers (Room 2188), to discuss a schedule for briefing plaintiff's
anticipated petition for attorney's fees.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: February 20, 2016

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