Johnson v. Blitt and Gaines, P.C.
Filing
21
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the motion to dismiss 12 is granted. In view of the pure legal question at issue in the case, and the absence of any request to amend, the dismissal is with prejudice. The defense motion cite additional authority 19 is granted, although the additional cases were not necessary to the analysis in the Opinion. Status hearing of 07/08/2015 is vacated. A separate AO-450 judgment shall be entered. Civil case terminated. Emailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILBERT JOHNSON,
Plaintiff,
BLITT AND GAINES, P.C.,
Defendant.
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No. 14 C 10009
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Wilbert Johnson filed a complaint against Defendant Blitt and
Gaines, P.C. alleging that Blitt violated the venue provision of the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C § 1692i(a), while filing a post-judgment
wage garnishment proceeding against Johnson’s employer under the Illinois Wage
Deduction Act, 735 ILCS 5/12-801 et seq.1 Blitt now moves to dismiss the complaint
under Federal Rule of Civil Procedure Rule 12(b)(6) for failure to state a claim.
R. 12, Mot. Dismiss. For the reasons stated below, the motion to dismiss is granted.
I. Background
In evaluating the motion to dismiss, the Court must accept as true the
complaint’s factual allegations and draw reasonable inferences in Johnson’s favor.
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2079 (2011). Plaintiff Johnson lives in Calumet
City, Illinois. R. 1, Compl. ¶¶ 4, 13. Calumet City falls within the jurisdiction of the
Sixth Municipal District in Cook County. Id. ¶ 14. But rather than sue Johnson in
1This
Court has subject matter jurisdiction under 28 U.S.C. § 1331. Citations to the
docket are indicated by “R.” followed by the docket entry.
the Sixth Municipal District, in December 2012, Blitt filed a complaint to collect a
debt on behalf of Credit Acceptance Corporation against Johnson in the First
Municipal District of Cook County. Id. ¶¶ 8, 10; see also R. 1-1, Exh. A, State Court
Docket at 1 (for Credit Acceptance v. Wilbert Johnson, Case No. 2012 M1 173674
(Ill. Cir. Ct., Cook Cnty., Nov. 12, 2013) (“collection case”)). The state court entered
a default judgment against Johnson on November 12, 2013. Exh. A, State Court
Docket at 3. On April 28, 2014, Blitt initiated, on behalf of Credit Acceptance, a
wage-deduction action against Johnson’s employer to collect on the judgment.
Compl. ¶ 23; Exh. A, State Court Docket at 3-4. The state court issued an order for
installment payments of the judgment in the collection case and entered judgment
against the employer-defendant on June 4, 2014. Exh. A, State Court Docket at 4.
Johnson filed this lawsuit in December 2014, alleging that Blitt violated the
venue provision of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692i(a), by
bringing the wage-deduction action (the underlying action on the debt is not the
subject of this case) in the First Municipal District instead of the Sixth Municipal
District, where, remember, Johnson resides. Id. ¶¶ 1, 28. Blitt now moves to dismiss
Johnson’s complaint for failure to state a claim on the grounds that the wagededuction action was not a “legal action on a debt against any consumer.” See Mot.
Dismiss; 15 U.S.C § 1692i(a).
II. Legal Standard
Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need
only include “a short and plain statement of the claim showing that the pleader is
2
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give
the defendant fair notice of what the … claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(internal quotation marks and citation omitted). The Seventh Circuit has explained
that this rule “reflects a liberal notice pleading regime, which is intended to ‘focus
litigation on the merits of a claim’ rather than on technicalities that might keep
plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to
state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of
Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). These allegations “must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to
the assumption of truth are those that are factual, rather than mere legal
conclusions. Iqbal, 556 U.S. at 678-79.
III. Analysis
Under the venue provision of the FDCPA, creditors must bring “any legal
action on a debt against any consumer” in the judicial district where the consumer
resides. 15 U.S.C. § 1692i(a). In its motion to dismiss, Blitt argues that the venue
provisions do not apply to the wage-deduction proceeding because an Illinois wage-
3
deduction proceeding is not a “legal action on a debt against any consumer” under
the FDCPA. Mot. Dismiss at 2. Instead, Blitt argues, it is a legal action on a debt
against the debtor’s employer. Id. Johnson responds that because the underlying
debt-collection action was not brought in the proper venue, the FDCPA venue
provisions must apply to the wage-deduction action. R. 15, Pl.’s Resp. Br. at 1-2. If
they do not, the argument goes, then Johnson was deprived of his opportunity to
defend against the action in a convenient forum. Id.
To resolve this issue, it is important to first understand a recent change in
the interpretation of the venue provision of the FDCPA. The Court then turns to the
statutory language of the FDCPA and Illinois Wage Deduction Act to determine
whether the wage-deduction proceeding is “against any consumer.”
A. Suesz and Ensuing FDCPA Litigation
The FDCPA seeks “to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to promote consistent
State action to protect consumers against debt collection abuses.” 15 U.S.C.
§ 1692(e). To that end, the venue provision of the FDCPA requires that “[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).
4
Initially, the Seventh Circuit defined “judicial district or similar legal entity”
as the Illinois Circuit Courts, not the intra-county districts used to determine venue
of small-claims cases in Cook County. See Newsom v. Friedman, 76 F.3d 813, 820
(7th Cir. 1996). In July 2014, however, the Seventh Circuit reinterpreted “judicial
district or similar legal entity” in § 1692i to mean the “smallest geographic area
that is relevant for determining venue in the court system in which the case is
filed.” Suesz v. Med-1 Solutions, LLC, 757 F.3d 636, 638 (7th Cir. 2014) (en banc)
(overruling Newsom). Because this interpretation applied to all pending cases, see
id.at 650, it paved the way for FDCPA venue challenges in pending suits filed in in
municipal districts in the Circuit Court of Cook County other than those where the
debtors reside, see generally, e.g., Maldanado v. Freedman Anselmo Lindberg, LLC,
2015 WL 2330213 (N.D. Ill. May 14, 2015); Hill v. Freedman Anselmo Lindberg,
LLC, 2015 WL 2000828 (N.D. Ill. May 1, 2015); Sapaula v. Blitt and Gaines, P.C.,
2015 WL 1407296 (N.D. Ill. Mar. 24, 2015).
Blitt filed the collection case against Johnson in December 2012. When the
interpretation of the venue provision changed in July 2014, the one-year statute of
limitations had already run on any FDCPA claim Johnson might have had for the
collection case. See 15 U.S.C. § 1692k (“An action enforce any liability created by
this subchapter may be brought … within one year from the date on which the
violation occurs.”); see also, e.g., Maldanado, 2015 WL 2330213, at *3 (holding that
the statute of limitation on an FDCPA claim begins to run when the lawsuit giving
rise to the claim begins); Sapaula, 2015 WL 1407296, at *2 (same); Pihl v. Law
5
Office of Keith S. Shindler, 2015 WL 1137695, at *2 (N.D. Ill. Mar. 20, 2015) (same).
Unfortunately for Johnson, the change in the law caused by Suesz did not revive
any expired FDCPA claim that might have been based on the collection case. The
wage-deduction action, however, was filed in April 2014, and the entry of judgment
against Johnson’s employer was in June 2014. Exh. A, State Court Docket. So, when
Suesz gave a different meaning to the venue provision, the statutory period for the
wage-deduction case had not yet run. If the wage-deduction action is “against any
consumer,” the FDCPA venue provision applies, and Johnson can benefit from the
application of Suesz.2
B. “Against Any Consumer”
Statutory interpretation begins with the plain language of the statute. The
Court must “assume that the legislative purpose of the statute is expressed by the
ordinary meaning of the words used.” U.S. v. Berkos, 543 F.3d 392, 396 (7th Cir.
2008) (quoting United States v. Lock, 466 F.3d 594, 598 (7th Cir. 2006)) (internal
quotation marks and alterations omitted). The plain language of the statute should
be conclusive unless there is clearly expressed congressional intent to the contrary.
Id. The language and design of the statute as a whole may also provide guidance in
determining the plain meaning of its provisions. Id. (citing K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 291 (1988)). Identical words used in different parts of the same
2Johnson
does not assert any FDCPA claims based on the collection case, but makes
a factual argument that his case is unlike the precedent Blitt cites, because he did not have
his “day in court” in the underlying collection case. As discussed below, this argument is
just a generalized policy argument that is not connected to statutory text or to any other
legal principles: the statute of limitations expired before Suesz’s new interpretation of the
venue provision.
6
statute are generally presumed to have the same meaning. U.S. v. Achbani, 507
F.3d 598, 602 (7th Cir. 2007). Courts should avoid interpreting a statute in a way
that renders a word or phrase redundant or meaningless. Berkos, 543 F.3d at 396
(citing Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 574-75 (1995)).
The venue provision of the FDCPA requires that “[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). It is clear from the plain
language of the statute that “brings any legal action” and “commencement of the
action” must refer to the same “action.” See Achbani, 507 F.3d at 602 (“[T]he same
words have the same meaning throughout a given provision.”). But the language of
the statute sheds little light on the meaning of the phrase “legal action on a debt
against any consumer.”
Blitt concedes that a wage-deduction proceeding is a “legal action on a debt”
for the purposes of the FDCPA. Def.’s Br. at 2. Because of this concession, both Blitt
and Johnson direct most of their arguments to the “against any consumer”
language. Id.; Pl.’s Resp. Br. at 9. But this parsing of the statute is too myopic: it
ignores both the operative verb “brings” in the prefatory language of the venue
provision, as well as the language coming after, “in which the consumer resides at
the commencement of the action.” 15 U.S.C. § 1692i. To determine if a wagededuction proceeding is covered by the FDCPA venue provision, the Court must
7
consider the language of the statute as a whole. See Berkos, 543 F.3d at 396. The
relevant “action” to which “bring” and “commencement” apply is the filing of suit
against the consumer. See, e.g., Maldanado, 2015 WL 2330213, at *3; Hill, 2015 WL
2000828, at *2. Thus, even if a wage-deduction action were “against any consumer”
under Illinois law, it would still not run afoul of the venue provision unless it could
be determined that it is also a “legal action on a debt” separate from the underlying
debt collection suit against the consumer.3
In First Finance Co. v. Pellum, 338 N.E.2d 876 (Ill. 1975)—a case which
neither party cited—the Illinois Supreme Court considered whether the State of
Illinois is immune from wage-deduction proceedings. In holding that the State
enjoyed no immunity in those proceedings, the Court held that a wage-deduction
proceeding “is not a distinct and separate action against the employer, but an
additional step in the original action against the judgment debtor.” Id. at 879 (citing
Zimek v. Illinois National Casualty Co., 19 N.E.2d 620 (Ill. 1939)). Although, on its
face, the language in First Finance suggests that a garnishment proceeding is a
continuation of a proceeding against a consumer, the case considered a different
Illinois wage-deduction scheme in the context of sovereign immunity, and asserted
that a wage-deduction proceeding is different from an “action in which a judgment
or decree is sought against a defendant.” Id. The concerns at issue in determining
whether a State should be immune from particular kinds of suit are altogether
3As
other courts have recognized, it is “less than clear” that initiating wagededuction or garnishment proceedings constitute “bringing” legal action under the FDCPA.
Glazewski v. CKB Firm, P.C., 2015 WL 661278, at *2 (N.D. Ill. Feb. 15, 2015); see also Hill,
2015 WL 2000828, at *3 (N.D. Ill. May 1, 2015) (“[O]nly the filing of the collection case
initiates the running of the statute of limitations.”).
8
different from the concerns the FDCPA venue provision seeks to address. Further,
neither party here argues that garnishment is not an action in which a judgment or
decree is sought against a defendant—rather, they disagree over who the
“defendant” really is. Nevertheless, First Finance illustrates that, if a wagededuction proceeding is “against the judgment debtor,” then it must be merely an
additional step in the original action against the judgment debtor, which would not
independently trigger the venue provision of the FDCPA. See id.; see also Hill, 2015
WL 2000828, at *3 (N.D. Ill. May 1, 2015) (holding that a citation to discover assets
is not a legal action that would reset the statute of limitations of the FDCPA venue
provision). Blitt does not advance this argument, so the Court must instead
evaluate whether the wage-deduction proceeding is “against any consumer.”
The answer is no. Even if a wage-deduction proceeding could constitute a
separate “legal action on a debt,” the proceeding would not be “against any
consumer.” To determine if the Illinois wage-deduction proceeding is against any
consumer, the Court must evaluate the nature of the proceeding based on the state
statute itself. See, e.g., Pickens v. Collection Servs. of Athens, 165 F. Supp. 2d 1376,
1380 (M.D. Ga. 2001), aff’d, 273 F.3d 1121 (11th Cir. 2001) (unpublished); Smith v.
Solomon & Solomon, P.C., 714 F.3d 73, 75 (1st Cir. 2013); Etro v. Blitt & Gaines,
P.C., 2015 WL 1281521, at *2 (N.D. Ill. Mar. 18, 2015) (citing cases). When
confronted with this issue, the district court decision in Pickens assumed without
deciding that a garnishment action is a “legal action on a debt” under the FDCPA
before turning to Georgia state law to determine that such an action is not “against
9
any consumer.” See Pickens, 165 F. Supp. 2d at 1380. Similarly, the First Circuit
noted that the parties before it had agreed that a trustee process suit was a “legal
action on a debt,” and then concluded based on the Massachusetts statutory scheme
that such an action is not “against any consumer.” See Solomon, 714 F.3d at 75; see
also Schuback v. Law Offices of Phillip S. Van Embden, P.C., 2013 WL 432641, at
*5-6 (M.D. Pa. Feb. 1, 2013) (looking to New Jersey law to determine that a New
Jersey writ of execution is not “against any consumer”).
Several courts have held that a wage-deduction proceeding under the Illinois
Wage Deduction Act is not a “legal action on a debt against any consumer” under
the FDCPA. See Etro, 2015 WL 1281521, at *2; Hinciek v. Law Office of Keith
Shindler, No. 1:14-cv-07149, slip op. at 3 (N.D. Ill. Mar. 4, 2015); McDermott v.
Barton, 2014 WL 6704544, at *7-8 (S.D. Ill. Nov. 26, 2014); Edmondson v. Blitt and
Gaines, 2015 WL 3852178, at *4 (N.D. Ill. June 19, 2015); Henderson v. Blitt and
Gaines, 2015 WL 3856110, at *4 (N.D. Ill. June 19, 2015); see also Hageman v.
Barton, 2014 WL 5320265, at *5 (E.D. Mo. Oct. 17, 2014). McDermott cites Illinois
authority dating to 1896 demonstrating that “a garnishment proceeding based on a
judgment should run in the name of the judgment debtor for the use of the
judgment creditor as plaintiff against the garnishee as defendant.” McDermott,
2014 WL 6704544, at *7 (internal alteration omitted) (quoting Finch v. Alexander
Cty. Nat’l Bank, 65 Ill. App. 336, 339 (1896)); see also Hibernian Banking Ass’n v.
Morrison 58 N.E. 960, 961 (Ill. 1900) (“[P]laintiff … instituted garnishee
proceedings against said receiver, who was served with process, and filed his
10
answer as garnishee.”); Peter Fischer Imp. Motors, Inc. v. Buckley, 460 N.E.2d 346,
350 (Ill. App. Ct. 1984) (“[T]he usual garnishment action … is a post-judgment
procedure instituted directly against a third party …”); Arnold v. Hunt, 81 Ill. App.
430, 432 (1899) (“The affidavit concludes with a prayer for summons against said
alleged debtors as garnishees.”). These decisions support the understanding of
wage-deduction proceedings as actions “against” an employer—not the consumer—
as does the language of the Act itself (discussed more fully below). This conclusion is
also consistent with the Federal Trade Commission’s commentary to the FDCPA,
which suggests that post-judgment enforcement actions need not be subject to the
venue requirement because “the consumer previously has had the opportunity to
defend the original action in a convenient forum.” See Federal Trade Comm’n,
Statements of General Policy of Interpretation Staff Commentary on the Fair Debt
Collection Practices Act, 53 Fed. Reg. 50,097, 50,109 (1988).
Johnson argues that the Illinois Wage Deduction statute is more like the
Ohio garnishment statute, which an Ohio district court held was an action against
any consumer. See Adkins v. Weltman, Weinberg & Reis Co., L.P.A., 2012 WL
604249, at *4-7 (S.D. Ohio Feb. 24, 2012); see also Pl.’s Resp. Br. at 8-9. Courts
interpreting the Illinois Wage Deduction Act have distinguished Adkins because the
Ohio garnishment statute explicitly “defines garnishment proceedings as being
‘against a judgment debtor.’” Etro, 2015 WL 1281521, at *3 (quoting Ohio R.C.
§ 2716.03); see also Solomon, 714 F.3d at 77 n.4; Schuback, 2013 WL 432641, at *4-5
(same). But the Seventh Circuit has recognized the “tyranny of labels” in using
11
state law to interpret the meaning of federal statutes, and advocates a functional
approach to categorization.4 See E.E.O.C. v. Sidley Austin Brown & Wood, 315 F.3d
696, 705-06 (7th Cir. 2002). So the Court must consider how the Illinois wagededuction statute actually operates—rather than just look at mere labels—to
determine if a wage-deduction proceeding is truly “against any consumer.”
The Illinois Wage Deduction Act is substantively similar to both the Georgia
garnishment scheme the court considered in Pickens and the Ohio garnishment
scheme under which Adkins was decided. All three schemes require that the
judgment debtor be given notice of initiation of a garnishment proceeding against
his employer. See 735 ILCS 5/12-805; Ga. Code. Ann. § 18-4-64; Ohio R.C. § 2716.02.
Under each scheme, some wages are exempt from garnishment, garnishment may
not exceed certain maximum amounts, and the judgment debtor has the
opportunity to challenge the garnishment orders, either through traverse or request
for a hearing. See 735 ILCS 5/12-805; Ohio R.C. §§ 2716.02, 2716.041; Ga. Code
Ann. § 18-4-20, 60, 65, 111, 114. Notice must include the amount to be garnished,
the name of the court issuing the garnishment summons, and certification of service
of the summons to the employer. See 735 ILCS 5/12-805; Ohio R.C. § 2716.06; Ga.
Code. Ann. § 18-4-64.
Under each wage-deduction statute, the judgment creditor must file an
affidavit alleging that the employer-garnishee is indebted to the judgment debtor.
See 735 ILCS 5/12-805; Ohio R.C. § 2716.03; Ga. Code. Ann. § 18-4-61-62. The court
4Moreover,
as discussed below, Adkins does not rely on the text of the Ohio
garnishment statute.
12
then issues a summons to the employer, requiring that the employer respond
stating what property is subject to garnishment. See 735 ILCS 5/12-805-06; Ohio
R.C. § 2716.041; Ga. Code. Ann. § 18-4-62. The court may then issue a continuous
order requiring the employer to deduct the lawful amount from the debtor’s wages
and pay them to the court for satisfaction of the judgment. See 735 ILCS 5/12808(e); Ohio R.C. § 2716.041; Ga. Code Ann. § 18-4-63, 111. Each scheme
functionally imposes a lien on the wages to be deducted, which takes priority over
other liens, but which may be superseded by support liens or other levies. See 735
ILCS 5/12-808(b); Ohio R.C. § 2716.041(C)-(D); Ga. Code Ann. § 18-4-111. If an
employer fails to answer the summons or impermissibly cease deductions, the court
may enter default judgment against the employer for some or all of the balance owed
on the judgment against the debtor. See 735 ILCS 5/12-807; Ohio R.C. § 2716.21(C)(F), .041; Ga. Code Ann. § 18-4-62, 89, 90, 113. In Illinois, failure to appear could
result in the court entering “a conditional judgment against the employer for the
amount due upon the judgment against the judgment debtor.” 735 ILCS 5/12-807
(emphasis added).
The language and operation of each scheme supports the conclusion that
wage-deduction proceedings are against the employer and not the judgment debtor.
The debtor’s liability for the underlying debt has already been determined and
cannot be reduced (or increased, for that matter) through the wage-deduction
proceeding itself. In wage-deduction proceedings, the court assigns duties to the
employer, judgment is entered against the employer in the form of a lien on the
13
employer’s assets, and the court may hold the employer liable to the judgment
creditor for the entire amount due for failure to comply with the wage-deduction
proceeding. The duties and obligations stemming from the wage-deduction action
fall squarely on the employer, compelling the conclusion that wage-deduction
proceedings are actions against the employer, not the consumer.
Johnson’s arguments are unable to overcome how the Illinois Wage
Deduction Act works. Johnson first points to the due-process concerns articulated in
Adkins. 2012 WL 604249, at *6. In Adkins, the court asserted, without citing any
authority, that a “garnishment proceeding is without a doubt a legal action” under
the FDCPA, that “[o]nly the judgment creditor and judgment debtor have any
beneficial interest at stake in a garnishment action,” and that the “employer’s only
interest is not becoming liable to pay the wages to both the employee and the
employee’s judgment creditor.” Id. The court then reasoned that giving the
judgment debtor notice of the garnishment proceeding and an opportunity for a
hearing to contest the proceedings, as due process requires, proves that the
proceeding is “against” the judgment debtor. Id. (citing Sniadach v. Family Finance
Corp. of Bay View, 395 U.S. 337, 89 S. Ct. 1820 (1969)).
Johnson urges that the same due process concerns in Adkins are at play in
the Illinois Wage Deduction Act, as evidenced by the 1990 amendments to the Act.
Pl.’s Resp. Br. at 8 (citing Adkins, 2012 WL 604249, at *6). Because the Illinois
Wage Deduction Act was amended to provide due process to judgment-debtors, the
argument goes, wage-deduction proceedings under the act must be “against” the
14
employee-judgment debtor. Johnson correctly notes Blitt’s misplaced reliance on
Roy v. Smith, 735 F. Supp. 313, 316 (C.D. Ill. 1990), for the proposition that the
Illinois scheme does not require notice to the judgment debtor of the wage-deduction
proceeding. Pl.’s Resp. Br. at 10. The legislative history of the Act reveals that the
1990 amendments were in response to Kirby v. Sprouls, 722 F. Supp. 516, 523 (C.D.
Ill. 1989), which held that the Act violated due process because it failed to provide
notice to judgment debtors of wage garnishment proceedings instituted against
their employers and an opportunity for hearing to contest the proceedings. See 86th
Ill. Gen. Assemb., Senate Proceedings, June 20, 1990 at 6-7 (statements of Senator
Phillip Rock); 86th Ill. Gen. Assemb., Senate Proceedings, June 21, 1990 at 63-64
(statements of Senator Phillip Rock); 86th Ill. Gen. Assemb., House Proceedings,
June 26, 1990 at 48 (statements of Representative John Cullerton).
But ensuring that a legal proceeding provides due process for all interested
parties does not render that proceeding “against” all those interested parties. As
discussed above, wage garnishment proceedings impose duties on employers, result
in judgments against employers, and may hold employers liable for noncompliance.
The underlying judgment debtors are given notice and an opportunity for hearing in
part so that they might contest any garnishment proceeding predicated on an
improper default judgment. But otherwise the judgment debtor may not contest the
underlying judgment, and thus the wage-deduction proceeding is not truly “against”
him. Both Solomon and Schuback, which were decided after Adkins, support this
view. Each refused to interpret their states’ respective garnishment proceedings as
15
“against any consumer,” despite the fact that both Massachusetts trustee law and
New Jersey garnishment law have notice-and-hearing requirements similar to those
in the Ohio scheme. See Solomon, 714 F.3d at 76 (citing Mass. R. Civ. P. 4.2(c));
Schuback, 2013 WL 432641, at *5 (citing N.J. Stat. Ann. § 2A:17-63). The dueprocess provisions in the Illinois statutory scheme do not change against whom the
proceeding is brought.
Finally, even if wage garnishment under the Ohio scheme were truly
“against” the consumer, several differences among the three schemes confirm that
that is not the case in Illinois or Georgia. Under the Ohio scheme, no summons for
garnishment may issue to the employer until fifteen days after the judgment
creditor makes a demand for satisfaction of the judgment to the judgment debtor, in
order to allow him to exercise other options to avoid garnishment. See Ohio R.C.
§ 2716.02. By contrast, both the Georgia and Illinois schemes allow summons to
issue to the employer immediately, without any demand to the judgment debtor. See
735 ILCS 5/12-805-806; Ga. Code Ann. § 18-4-64. Under both the Illinois and
Georgia schemes, the employer may be held liable to the judgment creditor for the
entirety of the balance on the judgment should it fail to comply with the proceeding.
See 735 ILCS 5/12-808(f); Ga. Code Ann. § 18-4-62, 90, 113. In Ohio, on the other
hand, the employer may only be liable for the amount it owes the debtor at the time
it receives the summons. See Ohio R.C. § 2716.21(F). What’s more, while the Ohio
scheme does not specify in which court the garnishment affidavit must be filed, see
Ohio R.C. § 2716.02, and the Georgia scheme requires only that it be filed in a court
16
with jurisdiction over the garnishee, see Ga. Code Ann. § 18-4-61, a wage-deduction
proceeding in Illinois must be filed in the same court that rendered judgment
against the debtor. See 735 ILCS 5/12-805(a). Thus, under Illinois law, if the wagededuction proceeding at issue were held to be a violation of the FDCPA venue
provision, there would be no venue in Illinois where Blitt could enforce its judgment
against Johnson via wage deduction.
Johnson next argues that other courts have held that wage-deduction
proceedings come within the FDCPA’s venue provision. Pl.’s Resp. Br. at 5-9 (citing
Fox v. Citicorp Credit Servs., 15 F.3d 1507 (9th Cir. 1994); Smith v. Kramer, 2009
WL 4725285 (E.D. Mo. Dec. 2, 2009); Blakemore v. Pekay, 895 F. Supp. 972 (N.D. Ill.
1995)). But these cases do not actually address the issue here. As Johnson himself
concedes, Fox and Blakemore do not address the “against any consumer” language
in § 1692i, and thus those decisions do not illuminate the meaning of that statutory
language. Smith suffers from the same shortcoming. In Smith, the district court
relied on Fox and Blakemore to conclude that consumers face similar burdens in
defending against enforcement proceedings as they do in defending against the
underlying lawsuits. Smith, 2009 WL 4725285, at *5. The court then simply
assumed,
without
explanation,
that
Missouri
bank
account
garnishment
proceedings are “against” the account holder and not the bank. Id. at *5-6.
Finally, Johnson seeks to distinguish Pickens, Solomon, and their progeny,
arguing that all of those cases were based on facts “where the underlying judgment
was obtained in the proper venue,” which is not the case here. Pl.’s Resp. Br. at 2-6.
17
In support, Johnson argues that the FTC commentary is inapplicable, because it too
applies only to post-judgment proceedings where the judgment is obtained in a
forum that satisfies the FDCPA venue provision. Id. at 4-5 (citing Federal Trade
Comm’n, Statements of General Policy of Interpretation Staff Commentary on the
Fair Debt Collection Practices Act, 53 Fed. Reg. 50,097, 50,109 (1988)). Instead,
Johnson asserts that the facts here are exactly the scenario Congress sought to
prevent by enacting the FDCPA venue provision. Id. at 4.
The plain language of the venue provision does not support Johnson’s
reading. The provision only requires that a legal action on a debt be brought where
the consumer resides “at the commencement of the action.” 15 U.S.C. § 1692i(a)
(emphasis added). The text in no way distinguishes between the initial action on the
debt itself and post-judgment collection actions where a prior judgment has already
been entered (like a wage-deduction proceeding). Nor does the text distinguish
between legal actions predicated on judgments obtained in proper venues versus
those obtained in improper venues. So the venue of the underlying collection case is
irrelevant to Johnson’s claim.5
5Despite
the absence of statutory text to support Johnson’s argument, it is worth
noting that he does raise a potentially important policy concern: it is possible that a debt
collector could obtain a default judgment against a consumer in an improper venue, wait
out the statute of limitations on that FDCPA venue claim, and then seek to enforce that
judgment in the same or another venue. See Cole v. Cardez Credit Affiliates, LLC, 2015 WL
1281651, at *8 (D. Idaho Mar. 19, 2015). But stretching the text of the FDCPA venue
provision is not the proper mechanism for addressing this problem. Either equitable tolling
of the statutory period or an independent FDCPA claim for unfair practices under 15 U.S.C.
§ 1692f would be a better approach, because those approaches could be evaluated against
established case law on equitable tolling or on the actual text of other provisions of the
FDCPA.
18
IV. Conclusion
For the reasons stated above, a wage-deduction proceeding under the Illinois
Wage Deduction Act is not an action “against any consumer” under § 1692i(a) of the
FDCPA. Defendant’s motion to dismiss [R.12] is granted.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: July 7, 2015
19
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