Skinner v. LVNV Funding, LLC

Filing 55

MEMORANDUM Opinion and Order Signed by the Honorable Marvin E. Aspen on 1/8/2018: Plaintiff's motion for judicial notice 48 is granted. Plaintiff's motion for summary judgment 30 is denied. Defendant's motion for summary judgment 40 is granted. Judgment is entered on behalf of Defendant. Status hearing of 1/11/2018 is stricken. Civil case terminated. Mailed notice(mad, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LISA SKINNER,
Plaintiff,
v.
LVNV FUNDING, LLC,
Defendant.

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No. 16 C 7089
Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Presently before us are the parties’ cross-motions for summary judgment. Plaintiff Lisa
Skinner moved for summary judgment on her claims under the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and Illinois Collection Agency Act (“ICAA”),
225 ILCS 452/1 et seq. (Pl.’s Mot. (Dkt. No. 30) at 1.) Plaintiff also submitted a motion for
judicial notice of a document. (Pl.’s Mot. for Notice (Dkt. No. 48) at 2, Ex. A.) Defendant
LVNV Funding, LLC (“LVNV”) responded to Plaintiff’s motions by filing a cross-motion for
summary judgment on the same claims. (Def.’s Mot. (Dkt. No. 40) at 1.) The parties have fully
briefed the cross-motions. For the following reasons, we grant Plaintiff’s motion for judicial
notice, deny Plaintiff’s motion for summary judgment, and grant Defendant’s motion for
summary judgment.
BACKGROUND
On December 31, 2011, HSBC charged off a debt of approximately $243.00 Plaintiff
incurred through a credit card account with the bank. (Pl.’s Statement of Uncontested Facts
(“SOF”) (Dkt. No. 31) ¶ 8; Def.’s SOF (Dkt. No. 42) ¶ 4, Ex. 4.) Sherman Originator, LLC

(“Sherman”) purchased the debt from HSBC in January 2012 and then transferred the debt to
LVNV.1 (Pl.’s SOF ¶¶ 2, 8; Def.’s SOF ¶¶ 2, 5.)2 LVNV furnished Plaintiff’s account
information to credit reporting agency TransUnion through LVNV’s servicing agent, Resurgent,
in August 2015. (Pl.’s SOF ¶¶ 11–12; Def.’s SOF ¶¶ 8–9.) Through Resurgent, LVNV reported
to TransUnion that Plaintiff originally owed $381.00 and had a current balance of $437.00.
(Pl.’s SOF ¶ 11; Def.’s SOF ¶ 9.) The reported increase in the amount of debt from $243.00 is
allegedly due to interest accrued after HSBC charged off the debt. (Pl.’s Mot. at 8.)
Plaintiff filed a complaint in Federal Court on July 8, 2016 claiming Defendant’s
reporting of her balance violated the FDCPA and the ICAA. (Compl. (Dkt. No. 1).)
Specifically, Plaintiff alleges Defendant illegally misrepresented that Plaintiff owed $437.00,
$194.00 more than Plaintiff’s charged off debt, because Defendant did not have the right to
collect interest on the debt. (Id. ¶¶ 13–31.) In response, Defendant filed an answer denying the
claims and asserting affirmative defenses. (Dkt. No. 11.)
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment
only if it demonstrates there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). We may not grant summary judgment “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.”

1

Plaintiff disputes the admissibility of the documents Defendant submitted detailing the
transactions between HSBC and Sherman and between Sherman and LVNV. (Pl.’s Resp. to
Def.’s SOF (Dkt. No. 46) ¶¶ 5–7.) We do not consider Plaintiff’s objections as to the sufficiency
of Defendant’s evidence at this time because both parties agree that LVNV purchased Plaintiff’s
debt. (Pl.’s SOF ¶¶ 8; Def.’s SOF ¶ 5.)
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The parties do not agree on the exact date TransUnion received the report of Plaintiff’s alleged
debt. (Pl.’s SOF ¶ 11 (indicating the report occurred on August 3, 2015); Def.’s SOF ¶ 8
(indicating the report occurred on August 5, 2015).)
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). “One of the
principal purposes of the summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24,
106 S. Ct. 2548, 2553 (1986). “On cross-motions for summary judgment, the Court assesses
whether each movant has satisfied the requirements of Rule 56.” Portalatin v. Blatt,
Hasenmiller, Leibsker & Moore, LLC, 125 F. Supp. 3d 810, 813 (N.D. Ill. 2015). As with any
summary judgment motion, we consider cross-motions for summary judgment “construing all
facts, and drawing all reasonable inferences from those facts, in favor of the non-moving party.”
Laskin v. Siegel, 728 F.3d 731, 734 (7th Cir. 2013) (citing Wis. Cent., Ltd. v. Shannon,
539 F.3d 751, 756 (7th Cir.2008)).
ANALYSIS
I.

Judicial Notice of LVNV’s Filings in Illinois State Court
As a preliminary matter, we first address Plaintiff’s motion for judicial notice of a

document listing results of a docket search from the Clerk of the Circuit Court of Cook County.
(Pl.’s Mot. for Notice at 2, Ex. A.) The search lists hundreds of cases filed by a “LVNV
Funding” as plaintiff in the Cook County Circuit Court in July 2017. (Id.) Plaintiff requests we
take notice of this document in support of her motion for summary judgment. (Id. at 1.)
Federal Rule of Evidence 201 allows a court to take judicial notice of any fact that is “not
subject to reasonable dispute” because it is generally known in the court’s jurisdiction or “can be
accurately and readily determined from sources whose accuracy cannot be reasonably
questioned.” Fed. R. Evid. 201(b). Judicial notice of Plaintiff’s document is proper because the
entries’ existence is not in dispute and their accuracy can be easily confirmed by examining the
court’s electronic docket. Stern v. Great W. Bank, 959 F. Supp. 478, 481 (N.D. Ill. 1997) (taking

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judicial notice of the court record of a related proceeding); Cagan v. Intervest Midwest Real
Estate Corp., 774 F. Supp. 1089, 1093 (N.D. Ill. 1991) (finding judicial notice of a court order in
another case proper); Montanez v. Velasco, No. 1:12 C 00250 AWI, 2013 WL 4041847, at *3 n.1
(E.D. Cal. Aug. 7, 2013) (taking judicial notice of the results of a county court’s electronic
docket search); Rice v. Jones, No. CV 112 051, 2012 WL 3242038, at *1 n.3
(S.D. Ga. July 12, 2012), report and recommendation adopted, No. CV 112 051,
2012 WL 3242025 (S.D. Ga. Aug. 7, 2012) (same). Further, Defendant has not expressed any
challenge to the authenticity of these entries and does not otherwise oppose the motion. We
accordingly grant Plaintiff’s motion for judicial notice. (Dkt. No. 48.)
II.

FDCPA Claim
We turn next to Plaintiff’s claim under the FDCPA. The FDCPA aims to deter wayward

debt collection practices that disrupt debtors’ lives. Henson v. Santander Consumer USA, Inc.,
582 U.S. ___, 137 S. Ct. 1718, 1720 (2017); Pettit v. Retrieval Masters Creditor Bureau, Inc.,
211 F.3d 1057, 1059 (7th Cir. 2000). The statute prevents debt collectors from utilizing “false,
deceptive, or misleading representation or means in connection with the collection of any debt.”
15 U.S.C. § 1692e. However, the FDCPA only applies to “debt collectors” as defined by the
statute in § 1692a(6). Ruth v. Triumph P’ships, 577 F.3d 790, 796 (7th Cir. 2009).
Section 1692a(6) provides two alternative definitions of a “debt collector”: (1) “any person who
uses any instrumentality of interstate commerce or the mails in any business the principal
purpose of which is the collection of any debts” (the “principal purpose” definition), or (2) any
person “who regularly collects or attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another” (the “regularly collects” definition). 15 U.S.C. § 1692a(6);
Schlaf v. Safeguard Props., LLC, No. 15 C 50113, 2017 WL 4856227, at *3
(N.D. Ill. Aug. 29, 2017). Plaintiff has the burden of establishing Defendant meets a statutory
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definition of a debt collector to succeed on her FDCPA claim. Heller v. Graf,
488 F. Supp. 2d 686, 692 (N.D. Ill. 2007).
The parties dispute whether Defendant meets the definition of “debt collector” under the
FDCPA. It is undisputed Defendant owned Plaintiff’s debt after it purchased it from Sherman.
(Compl. ¶ 17; Def.’s Resp. at 2.) Defendant argues the Supreme Court’s recent decision in
Henson forecloses LVNV from qualifying as a debt collector. (Def.’s Mot. at 7; Def.’s Rep.
(Dkt. No. 51) at 1.) In Henson, the Court unanimously held that a debt purchaser who seeks to
“collect debts for its own account” is not a debt collector under the FDPCA based on the plain
language of § 1692a(6). 137 S. Ct. at 1722. Plaintiff argues that Henson only interpreted the
regularly collects definition, and Defendant still qualifies as a debt collector under the principal
purpose definition. (Pl.’s Resp. (Dkt. No. 47) at 3–6.)
A. Regular Collection of Debts Owed or Due Another Definition
Henson undoubtedly disqualifies Defendant as a debt collector under the regularly
collects definition. The Court extensively evaluated the section of the “regularly collects”
definition requiring the debt be “owed . . . another,” concluding this language excluded all
“individuals and entities who regularly purchase debts originated by someone else and then seek
to collect those debts for their own account.” Id. at 1721. Because Defendant sought to collect a
debt it had purchased, Defendant falls outside of the regularly collects definition.
See Simpson v. Safeguard Props., LLC, No. 13 CV 02453, 2017 WL 4310674, at *4
(N.D. Ill. Sept. 28, 2017) (quoting Henson for the proposition that the regularly collects
definition excludes a party who owns the debt themselves).

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B. Principal Purpose Definition
We agree with Plaintiff that Defendant could still be a debt collector under the principal
purpose definition because Henson controls only the regularly collects definition of debt
collector provided in § 1692a(6). The Supreme Court clarified that its opinion did not address
the principal purpose definition of a debt collector. Henson, 137 S. Ct. at 1721; see also
Chenault v. Credit Corp Solutions, Inc., No. CV 16 5864, 2017 WL 5971727, at *2
(E.D. Pa. Dec. 1, 2017) (“Henson declined to address whether [defendant] constituted a debt
collector under the first prong of the statute.”); Tepper v. Amos Fin., LLC, No. 15 CV 5834,
2017 WL 3446886, at *8 (E.D. Pa. Aug. 11, 2017) (“Plaintiff appropriately directs our attention
then to the first possible path provided by § 1692a, which the Supreme Court explicitly noted
was outside the scope of its review.”) (appeal pending). Review of the statutory language further
indicates that Henson’s disqualification of debt purchasers only corresponds to the regularly
collects definition of debt collector in § 1692a(6): the limitation that a debt must be “owed or due
another,” central to the Court’s reasoning in Henson, follows the “or” in the definition and thus
applies only to the second regularly collects definition. Loughrin v. United States, 573 U.S. ___,
134 S. Ct. 2384, 2390 (2014) (discussing the effect of the word “or” as a “disjunctive” in
statutes, meaning the “words it connects are to be given separate meanings” and treated as
“entirely distinct statutory phrases that the word ‘or’ joins”) (internal citation omitted).
Other courts have similarly found Henson inapposite where debt purchasers meet the
primary purpose definition. See, e.g., Kurtzman v. Nationstar Mortg. LLC, No. 16 17236,
2017 WL 4511361, at *3 (11th Cir. Oct. 10, 2017) (finding that a debt purchaser could still
qualify as a debt collector after Henson under the principal purpose definition);
Schweer v. HOVG, LLC, No. 3:16 CV 01528, 2017 WL 2906504, at *5 (M.D. Pa. July 7, 2017)

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(finding debt purchaser qualified as debt collector after Henson because the parties agreed that
defendant’s principal purpose was debt collection). Accordingly, we agree with Plaintiff that a
debt purchaser can still qualify as a debt collector under § 1692a(6) if its principal purpose is the
collection of debts.
We must then decide if Defendant qualifies as a debt collector under the primary purpose
definition. In analyzing a business’ principal purpose, we consider whether the entity’s “one
principal purpose” is that of “enforcing security interests.” Hunte v. Safeguard Props.
Mgmt., LLC, 255 F. Supp. 3d 722, 726 (N.D. Ill. 2017) (interpreting “Congress’s use of the
definite article” “the” to mean an entity can only have one principal purpose). “A party will not
be considered a debt collector under the principle purpose definition if collection of debts is
merely some of that party’s business.” Schlaf, 2017 WL 4856227, at *3. Similarly, a company
cannot avoid debt collector status under the FDCPA by conducting some business that is not debt
collection. Simpson, 2017 WL 4310674, at *5. Instead, we consider what proportion or
percentage of a company’s operations involves debt collection activities. See, e.g., Heller,
488 F. Supp. at 692 (discussing cases analyzing percentages of law firms’ business involving
actions collecting debt); see also citing Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507
(9th Cir. 1994) (finding business with less than one percent of company’s work in debt collection
did to not meet the standard); Scott v. Jones, 964 F.2d 314 (4th Cir.1992) (finding 70 percent
collection work established a principal purpose); Winterstein v. CrossCheck, Inc.,
149 F. Supp. 2d 466, 472 (N.D. Ill. 2001) (considering six to seven percent of defendant’s
business being focused on collection efforts as insufficient to constitute a principal purpose).
The record lacks any evidence establishing the primary purpose of Defendant’s business,
debt collection or otherwise. Plaintiff presents a list of hundreds of collection lawsuits

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Defendant filed in Cook County in July 2017 and offers proof that Defendant holds a collection
agency license from the State of Illinois. (Compl. Ex. B, Pl.’s Resp. at 5, Pl.’s Mot. for
Notice Ex. A.) While this evidence may establish Defendant’s business involves some debt
collection, it provides no basis for establishing the percentage of Defendant’s operations that
involve debt collection as compared to Defendant’s operations as a whole. Heller,
488 F. Supp. 2d at 692–93 (establishing the percentage of a business’ operations in collection
efforts based on affidavits discussing the areas of work of the company, percentage of employee
time spent on collection compared to other efforts, the distribution of employees in the company
in different departments, the percentage of profits from each activity, and company financial
records). Without any evidence of Defendant’s operations as a whole, Plaintiff has failed to
establish specific facts needed to establish the portion of Defendant’s operations involve debt
collection, a prerequisite to proving an entity’s principal purpose is debt collection under the
FDCPA. Summers v. Midland Funding, LLC, No. 14 CV 10174, 2017 WL 5152358, at *2
(N.D. Ill. Nov. 7, 2017) (denying plaintiff’s motion to dismiss because plaintiff did not submit
any “specific evidence” showing defendant met the definition of debt collector); Schlaf,
2017 WL 4856227, at *3 (granting summary judgment because plaintiff has not established as a
matter of law defendant’s principal purpose). Mere conclusory statements claiming LVNV’s
“sole purpose” and “raison d’être is the purchase and collection of defaulted debt” does not meet
the required factual showing required at the summary judgment stage. Id. (finding plaintiff’s
statement that defendant “obvious[ly]” is a debt collector insufficient to win a summary
judgment motion).
We thus agree with Defendant that Plaintiff’s allegations about Defendant’s status as a
debt collector are “not supported by facts,” and find Plaintiff has failed to meet her burden on an

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essential element of her FDCPA claim. (Def.’s Resp. at 2 n.1.) Accordingly, we deny Plaintiff’s
motion for summary judgment and grant Defendant’s motion for summary judgment as to
Count I. Celotex Corp., 477 U.S. at 322, 106 S. Ct. at 2552 (“[T]he plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”). We
decline to address the parties’ other FDCPA arguments because Plaintiff’s failure to meet her
burden on the debt collector element is fatal to her FDCPA claim.
III.

ICAA Claim
Plaintiff also alleges Defendant violated the ICAA by trying to collect debt not

authorized by law. (Compl. ¶¶ 38–39.) The ICAA regulates debt collection and aims to “protect
consumers against debt collection abuse.” 225 ILCS 425/1a. Plaintiff alleges Defendant
violated § 9(a),3 which provides the Department of Financial and Professional Regulation
(“DFPR”) the ability to take disciplinary action for prohibited debt collection behavior.
(Pl.’s Mot. at 2.) Defendant argues we must grant summary judgment as to Plaintiff’s claim
because she has no private right of action under the ICAA. (Def.’s Mot. at 6–9.) Plaintiff admits
that the Illinois Supreme Court has not ruled on the specific question, but argues an implied
private right of action exists under § 9 of the ICAA. (Pl.’s Resp. at 11.)
We follow Illinois law in interpreting the ICAA. Houben v. Telular Corp.,
309 F.3d 1028, 1032 (7th Cir. 2002) (applying state substantive law when federal courts consider
state law claims under supplemental jurisdiction). Because there is no determinative Illinois
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Specifically, Plaintiff claims Defendant violated § 9(a)(17), which prohibits disclosing
“information adversely affecting a debtor’s reputation for credit worthiness with knowledge the
information is false,” and § 9(a)(33), prohibiting collection of interest or charges of fees in
excess of the actual debt owed unless expressly authorized by law. 225 ILCS 425/9(a).
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Supreme Court decision on the issue, we must “use our own best judgment to estimate how the
[Illinois] Supreme Court would rule as to its law.” Valerio v. Home Ins. Co., 80 F.3d 226, 228
(7th Cir. 1996).
Plaintiff argues Sherman v. Field Clinic, 74 Ill. App. 3d 21, 29, 392 N.E.2d 154, 161
(1st Dist. 1979), supports her position. (Pl.’s Resp. at 11.) We disagree. While we must give
weight to a state appellate decision when the state Supreme Court has not spoken on an issue of
state substantive law, we may decline to follow an appellate decision when “there are persuasive
indications that the highest court of the state would decide the case differently.” Zahn v. N. Am.
Power & Gas, LLC, 815 F.3d 1082, 1088 (7th Cir. 2016) (citing Allstate Ins. Co. v. Menards,
Inc., 285 F.3d 630, 637 (7th Cir. 2002)). There are “numerous persuasive indications that the
Illinois Supreme Court would depart from Sherman and find no implied private right of action
under § 9.” Eul v. Transworld Sys., No. 15 C 7755, 2017 WL 1178537, at *17
(N.D. Ill. Mar. 30, 2017). As set forth below, we find the conclusion in Eul, which takes into
account the state of contemporary Illinois law, carefully reasoned and persuasive, and find no
implied private right of action under § 9 of the ICAA.
A. Sherman Stands Alone
First, Sherman was decided almost forty years ago, and no Illinois appellate decision
since 1979 has found an implied private right of action under § 9 of the ICAA. Id. at *17.
Furthermore, Illinois circuit courts have repeatedly declined to follow Sherman, dismissing
private actions seeking to recover for alleged violations § 9 of the ICAA. Eul,
2017 WL 1178537, at *17 n.14 (listing cases). Accordingly, Sherman is an anomaly in Illinois
circuit and appellate court law.

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B. People ex rel Daley v. Datacom System Corp.
Second, the Illinois Supreme Court itself has suggested that § 9 of the ICAA does not
include a private right of action. In People ex rel Daley v. Datacom System Corp., the Cook
County State’s Attorney brought a complaint on behalf of the people of the State of Illinois
alleging unlawful practices in the collection of past-due, unpaid parking tickets.
146 Ill. 2d 1, 9–10, 585 N.E.2d 51, 54–55 (1991). While discussing the state’s standing to
prosecute suits under the ICAA on behalf of private parties, the court stated “only the [DFPR]
had standing to pursue civil violations of the Collection Agency Act.” Id., 146 Ill. 2d at 26,
585 N.E.2d at 62 (emphasis added). While this language ultimately is dicta because the state
sought relief under a different statute, this statement provides “persuasive indication that the
Illinois Supreme Court would find no implied right of action in § 9 of the ICAA.” Eul,
2017 WL 1178537, at *18, n.15.
C. Expressio Unius Construction of § 9
Third, the ICAA expressly indicates the DFPR and Illinois Attorney General can take
action for violations of conduct described in § 9, suggesting the Illinois legislature intended to
exclude an implied private right of action. “In construing the meaning of a statute, the primary
objective of this court is to ascertain and give effect to the intention of the legislature . . . . The
plain language of the statute is the best indicator of the legislature’s intent.” Metzger v. DaRosa,
209 Ill. 2d 30, 34–35, 805 N.E.2d 1165, 1167 (Ill. 2004). Expressio unius est exclusion alterius
(“the expression of one thing is the exclusion of another”) guides statutory interpretation in
Illinois. Martis v. Pekin Mem’l Hosp. Inc., 395 Ill. App. 3d 943, 949–50, 917 N.E.2d 598, 604
(3d Dist. 2009) (interpreting expressio unius to mean, “[w]hen certain things are enumerated in a
statute, that enumeration implies the exclusion of all other things even if there are no negative

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words of prohibition”). When considering a possible implied private right of action, the Illinois
Supreme Court has clarified “when a statute grants a state official broad authority to enforce the
statute, we believe it indicates the legislature’s intent not to imply a private right of action for
others to enforce the statute.” Metzger, 209 Ill. 2d at 43, 805 N.E.2d at 1172; see also
Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S. Ct. 242, 247 (1979) ( “[I]t
is an elemental canon of statutory construction that where a statute expressly provides a
particular remedy or remedies, a court must be chary of reading others into it.”).
Section 9(a) expressly provides the DFPR with power to take “disciplinary or
non-disciplinary action” against those who engage in the enumerated behaviors.
225 ILCS 425/9(a). More recently, in 2008, the Illinois legislature modified the ICAA to
provide the Illinois Attorney General the ability to enforce “knowing violation[s]” of certain § 9
subsections. 225 ILCS 425/9.7 (enacted by 2007 Ill. Legis. Serv. P.A. 95-437 (S.B. 1398)
(WEST)). The express grant of power to two state authorities to enforce § 9 indicates the Illinois
legislature did not intend to imply a private right of action under the statute. Eul,
2017 WL 1178537, at *17.
D. Provision of a Private Right of Action in § 14a of the ICAA
Fourth, the express provision of a private right of action in other sections in the ICAA
further demonstrates that the Illinois legislature did not intend to imply a private right of action
in § 9. When the “legislature has expressly provided a private right of action in a specific section
of the statute, we believe the legislature did not intend to imply private rights of action to enforce
other sections of the same statute.” Metzger, 209 Ill. 2d at 44, 805 N.E.2d at 1172. In 1989, the
Illinois legislature modified the ICAA to allow enumerated public officials “or any person” to
maintain an action for injunctive relief under § 14a. 225 ILCS 425/14a (enacted by

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1989 Ill. Legis. Serv. P.A. 86-615 (H.B. 2004) (WEST)). The provision of an express private
right of action to enforce one section of the ICAA but not in § 9 indicates the Illinois legislature
did not intend to allow a private right of action to enforce § 9. Further, the legislature’s revision
of § 14a to provide a private enforcement mechanism stands in contrast to § 9, which the
legislature chose not to modify to provide a private right of action.
E. Adoption of the Administrative Review Law
Finally, the ICAA’s adoption of the Illinois Administrative Review Law (“ARL”) for
review of the DFPR’s administrative decisions suggests the Illinois Supreme Court would not
find an implied right of private action under § 9. 735 ILCS 5/3-101 et seq.; Eul,
2017 WL 1178537, at *17. The Illinois Supreme Court has clarified that when a statute granting
power to an administrative agency expressly adopts the framework of the ARL, “a circuit court
may not entertain an independent action.” Metzger, 209 Ill. 2d at 42, 805 N.E.2d at 1171; see
also Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147, 105 S. Ct. 3085, 3093 (1985). (“The
presumption that a remedy was deliberately omitted from a statute is strongest when Congress
has enacted a comprehensive legislative scheme including an integrated system of procedures for
enforcement.”) (internal citation omitted). The ICAA provides the DFPR the ability to pursue
actions under various provisions of the statute, including § 9(a). In turn, the DFPR’s actions
under the ICAA are reviewed under the ARL and its rules. 225 ILCS 425/26. The Illinois
legislature’s express adoption of the ARL’s framework to review DFPR actions is further
evidence the Illinois Supreme Court would not find a private cause of action under ICAA § 9.
*

*

*

For the foregoing reasons, we agree with Defendant that the Illinois Supreme Court
would not find an implied right of action under § 9 of the ICAA. Because Plaintiff’s claim

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alleges Defendant violated provisions of § 9, her action cannot be sustained as a matter of law.
Accordingly, we deny Plaintiff’s motion for summary judgment and grant Defendant’s motion
for summary judgment on Count II.
CONCLUSION
For the aforementioned reasons, we grant Plaintiff’s motion for judicial notice, deny
Plaintiff’s motion for summary judgment, and grant Defendant’s motion for summary judgment.
Accordingly, judgment is hereby entered on behalf of Defendant. It is so ordered.

____________________________________
Honorable Marvin E. Aspen
United States District Judge
Dated: January 8, 2018
Chicago, Illinois

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