Lebrun v. Blitt and Gaines P.C.

Filing 23

MEMORANDUM Opinion and Order. Signed by the Honorable John W. Darrah on 8/19/2015. Mailed notice (aee, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GEORGIANNA LEBRUN,
Plaintiff,
v.
BLITT AND GAINES, P.C.,
Defendant.

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Case No. 14-cv-10232
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Plaintiff Georgianna LeBrun filed this action under the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq., against Defendant Blitt and Gaines, P.C. (“Blitt”) on
December 19, 2014. (Compl. ¶ 1.) Plaintiff alleges that Blitt violated the venue provision of the
FDCPA, 15 U.S.C. § 1692i(a)(2), by filing a wage garnishment action in an improper venue.
Defendant moves to dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). Fed. R. Civ. P. 12(b)(6). For the reasons discussed below, Defendant’s motion is
granted.
BACKGROUND
The following facts are taken from Plaintiff’s Complaint, which are accepted as true for
purposes of deciding the motion to dismiss. See Indep. Trust Corp. v. Stewart Info. Servs. Corp.,
665 F.3d 930, 934 (7th Cir. 2012). Plaintiff is a resident of Prospect Heights, Illinois. (Compl.
¶ 13.) Defendant is a law firm with a principal place of business in Wheeling, Illinois, and is a
debt collector as defined by 15 U.S.C. § 1692a(6) of the FDCPA. (Id. ¶¶ 5-6.)

Blitt is attempting to collect a debt of $2,116.02 on behalf of Discover Bank pursuant to a
judgment entered against Plaintiff. (Id. ¶ 7; Comp. Ex. A.) The underlying collections case was
filed on September 26, 2013, in the First Municipal District courthouse in the Circuit Court of
Cook County, specifically, at the Richard J. Daley Center Courthouse (“Daley Courthouse”).
(Compl. ¶¶ 8-10.) Blitt filed the wage garnishment action on February 14, 2014, at the same
courthouse. (Id. ¶ 28.) Prospect Heights, Illinois is located in the Circuit Court of Cook
County’s Third Municipal District, and the Rolling Meadows Courthouse is the courthouse
which serves that district. (Id. ¶¶ 14-15.) The Rolling Meadows Courthouse is almost five miles
from Plaintiff’s home, while the Daley Courthouse is twenty-eight miles from Plaintiff’s home.
(Id. ¶¶ 16-17.) Plaintiff alleges that Blitt filed the complaint and wage garnishment actions in the
courthouse of the First Municipal District in order to discourage her from appearing and
defending herself in the case, in violation of the FDCPA. (Id. ¶ 30).
LEGAL STANDARD
A defendant may move to dismiss a complaint for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a complaint
must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court must take
well-pleaded allegations in the complaint as true and read them in the light most favorable to the
plaintiff. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012).
This presumption is “inapplicable to threadbare recitals of a cause of action’s elements,
supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. Instead, the “complaint must

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provide the defendant with fair notice of what the claim . . . is and the grounds on which it rests.”
Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 334 (7th Cir. 2012) (citing Erickson v.
Pardus, 551 U.S. 89, 93 (2007)).
ANALYSIS
Plaintiff alleges that Blitt filed the wage garnishment action in the Daley Courthouse
instead of the closer Rolling Meadows Courthouse, as a form of forum-shopping in violation of
the venue provision of the FDCPA. 15 U.S.C. § 1692i(a)(2). The pertinent section of the venue
provision provides:
Any debt collector who brings a legal action on a debt against any consumer shall—
(1) in the case of an action to enforce an interest in real property securing the
consumer’s obligation, bring such action only in a judicial district or similar legal
entity in which such real property is located; or
(2) in the case of an action not described in paragraph (1), bring such action only in the
judicial district or similar legal entity—
(A) in which such consumer signed the contract sued upon; or
(B) in which the consumer resides at the commencement of the action.
15 U.S.C. § 1692i(a) (emphasis added). The Seventh Circuit has defined the venue provision
narrowly, holding that “[t]he relevant judicial district or similar legal entity is the smallest
geographic unit relevant for venue purposes in the court system in which the case is filed,
regardless of the source of the venue rules.”1 Suesz v. Med-1 Solutions, LLC, 757 F.3d 636, 648
(7th Cir. 2014).
Both the collection action and the wage garnishment affidavit were filed in the First
Municipal District of Cook County. (Compl. Ex. A.) Because Suesz is retroactive, the proper
venue to file legal action against Plaintiff is the Third Municipal District. In order for Plaintiff to
recover under the FDCPA, the wage garnishment must be considered a legal action against a
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This decision was retroactive, reversing Newsom v. Friedman, 76 F.3d 813 (7th Cir.
1996) (holding that the county is the relevant judicial district for venue purposes under the
FDCPA). Suesz, 757 F.3d at 649-50.
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consumer, as required by the venue provision. 15 U.S.C. § 1692k. At issue between the parties
is whether a wage garnishment is a legal action against a consumer (judgment debtor) or against
the debtor’s employer.
Blitt argues that a wage garnishment is not a legal action against a consumer as defined
by the FDCPA’s venue provision. While Blitt acknowledges that a wage garnishment is a legal
action on a debt, they argue that it is an action against the debtor’s employer rather than against
the judgment debtor. Further, Blitt contends that a holding to the contrary would render
judgments obtained in collection actions virtually unenforceable if the debtor’s employer does
not reside in the same judicial district as the judgment debtor. Plaintiff asserts that a wage
garnishment is a legal action against a consumer and thereby subject to the FDCPA venue
provision. Plaintiff argues that by holding that a wage garnishment is subject to the venue
provision, debtors will not have to defend themselves in distant courts, upholding the central aim
of the FDCPA venue provisions.
Circuits are split as to whether a wage garnishment is considered a legal action against a
consumer, and the Seventh Circuit has not yet addressed the issue. The First and Eleventh
Circuits have held that a wage garnishment is not an action against a consumer and is not subject
to the FDCPA venue provision. Smith v. Solomon & Solomon, P.C., 714 F.3d 73, 76-77 (1st Cir.
2013); Pickens v. Collection Servs. of Athens, Inc., 165 F. Supp. 2d 1376 (M.D. Ga.2001), aff’d,
273 F.3d 1121 (11th Cir. 2001). However, the Ninth Circuit held that a wage garnishment is an
action against a consumer, stating that “[t]he plain meaning of the term ‘legal action’
encompasses all judicial proceedings, including those in enforcement of a previously-adjudicated
right. Because ‘debt’ includes obligations reduced to judgment, any judicial proceeding relating

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to such a judgment constitutes a ‘legal action on a debt.’” Fox v. Citicorp Credit Servs., Inc.,
15 F.3d 1507, 1515 (9th Cir. 1994).
Several courts in this state and jurisdiction have found that wage garnishments are not
considered actions against a consumer. In McDermott v. Barton, the court examined Illinois
wage garnishment history and found that post-judgment enforcement proceedings like
garnishments are instituted against the third-party employer. McDermott v. Barton, No. 14-CV704-NJR-PMF, 2014 WL 6704544, at *7 (S.D. Ill. Nov. 26, 2014). The same result was found
in Etro v. Blitt and Gaines, P.C., in which the court examined the Illinois wage deduction
scheme and found that they are not legal actions against any consumer as defined by the FDCPA.
Etro v. Blitt and Gaines, P.C., No. 14-C-8924, 2015 WL 1281521, at *2-3 (N.D. Ill.
March 18, 2015). Several courts have also held that there is no cause of action under the venue
provision of the FDCPA based on wage garnishments as they are legal actions against an
employer. Radcliffe v. Russel G. Winick & Assoc., P.C., No. 14-C-8633, 2015 WL 3629950, at
*2-3 (N.D. Ill. June 9, 2015). See also Adams v. Law Office of Keith S. Shindler, Ltd.,
No. 14-C-8123, 2015 WL 3528267, at *3 (N.D. Ill. June 4, 2015) (holding that a wage
garnishment is not a legal action against any consumer). This Court finds the reasoning in these
cases persuasive.
The relevant state wage deduction statute also supports Defendant’s argument that a wage
garnishment is not a legal action against a consumer. Illinois’ wage deduction statute involves
both the judgment debtor and their employer in the proceedings filed by the judgment creditor.
735 Ill. Comp. Stat. 5/12-801 et seq. The Illinois Wage Deduction Act enforces judgments
obtained against a debtor by levying against the debtor’s wages. A.J. Smith Fed. Sav. Bank v.
Sabuco, 989 N.E.2d 315, 318 (Ill. App. Ct. 2013). After a judgment is obtained against a debtor

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in a collections action, the judgment creditor must file an affidavit stating that the judgment
debtor is indebted to the judgment creditor. 735 Ill. Comp. Stat. 5/12-805(a). The judgment
creditor is also required to send a wage deduction notice to the judgment debtor. Id. Written
interrogatories to be answered by the debtor’s employer, or garnishee, must also be filed. Id.
Only after the affidavit and written interrogatories are filed may the summons be issued against
the employer to command them to appear before the court and answer the written interrogatories.
Id.
Once the employer-garnishee files an answer to the interrogatories pursuant to
735 Ill. Comp. Stat. 5/12-808(c), a copy of the completed interrogatories must be sent to the
debtor. Id. The judgment creditor and the judgment debtor may contest the truth or sufficiency
of the employer’s answer. 735 Ill. Comp. Stat. 5/12-811(a). Further, a judgment debtor may
request a hearing to dispute the wage deduction. 735 Ill. Comp. Stat. 5/12-811(b). After a trial,
an enforceable deduction order may be entered against the employer. 735 Ill. Comp. Stat. 5/12811(d). If the employer fails to appear or remit funds pursuant to the deduction order, a
conditional judgment is issued against the employer. 735 Ill. Comp. Stat. 5/12-807-805.5.
These provisions of the Wage Deduction Act support the interpretation that a wage
garnishment action is against the employer and not against the debtor. The proceeding is
consistently referred to as a proceeding against the employer, and only references a judgment
against the debtor when referring to a collection action. 735 Ill. Comp. Stat. 5/12-801 et seq.
While the debtor is involved in these proceedings, their participation is minimal compared to that
of the employer. Id. The summons is issued against the employer, the employer must answer,
the employer must respond to the interrogatories, and final judgment is made against the
employer. Id.

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Plaintiff refers to Federal Trade Commission (“FTC”) commentary to support her
argument. In its comments regarding the FDCPA, the FTC confirms that post-judgment
enforcement proceedings may be enforced in a location other than the location of the original
action. Statements of General Policy or Interpretation Staff Commentary on the Fair Debt
Collection Practices Act, 53 Fed. Reg. 50097, 50109 (Dec. 13, 1988). Specifically, the FTC
commentary reasoned that “[i]f a judgment is obtained in a forum that satisfies the requirements
of this section, it may be enforced in another jurisdiction, because the consumer previously has
had the opportunity to defend the original action in a convenient forum.” Id. Plaintiff argues that
because the original collections action was filed in the improper forum, this motion should be
denied as “[a] holding in favor of LeBrun properly punishes Blitt for proceeding against LeBrun
in the improper venue.” (Dkt. No. 13, p. 5.) This argument is not persuasive, as the location of
the original collection action filing is not relevant to the issue of whether or not a wage
garnishment action is against the consumer. It is improper to allow recovery for the collections
action as the one year statute of limitations has expired, and therefore this case may only focus
on the wage garnishment. 15 U.S.C. § 1692k(d).
CONCLUSION
For the reasons discussed above, Defendant’s Motion to Dismiss [10] is granted.
Plaintiff’s Complaint is dismissed with prejudice.

Date: August 19, 2015

______________________________
JOHN W. DARRAH
United States District Court Judge

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