Andrades v. Enhanced Recovery Company, LLC

Filing 7

MEMORANDUM Order This Court will await the prompt input of Andrades' counsel on the matters dealt with in the memorandum order. Signed by the Honorable Milton I. Shadur on 10/5/2016:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LUCIANO ANDRADES, individually and
on behalf of all others similarly situated,
Plaintiff,
v.
ENHANCED RECOVERY COMPANY, LLC,
Defendant.

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Case No. 16 C 9413

MEMORANDUM ORDER
This Court has just received, via the computer-generated random assignment system in
effect in this District Court, the assignment of a purported Class Complaint brought by Luciano
Andrades ("Andrades") against Enhanced Recovery Company, LLC ("Enhanced"). In that
respect this Court has long respected and enforced both the efforts of Congress to provide relief
from abusive conduct toward this country's consumer citizenry and, relatedly, the provision of
class-based relief to deal with the reality that such conduct may create harms that the real world
of economics may make it extraordinarily burdensome for any individual consumer to pursue a
remedy on his or her own. But regrettably there is another side to that coin -- the effort by some
counsel to distort reality or practicality or both by an inappropriate invocation of some of the
legislation referred to in this paragraph.
Just so here, where Complaint ¶ 10 refers to Andrades having assertedly incurred a debt
for goods and services for personal purposes (in this instance a T-Mobile consumer cell phone)
that Andrades was unable to pay "[d]ue to his financial circumstances") (Complaint ¶ 11), so that
the $97 debt (Complaint ¶ 15) went into default. When T-Mobile then assigned the debt to

Enhanced for collection, Enhanced reported the indebtedness to credit agency Experian as
amounting to $122, comprising the defaulted debt of $97 plus a $25 collection fee.
Complaint Ex. D is a copy of T-Mobile's "Terms & Conditions," which Andrades and his
counsel do not challenge as applicable to his default and to the consequent efforts needed to
collect on that default. But in that regard the Complaint paints a misleading picture by
(1) emphasizing that the $25 collection agency fee amounts to about 25% of Andrades'
delinquency and (2) urging that such a percentage is excessive when the "costs of collection" are
portrayed as simply "mailing Plaintiff a collection letter" (Complaint ¶ 21).
In that respect Complaint ¶ 18 quotes a snippet of the T-Mobile Terms & Conditions that
are attached to the Complaint as its Ex. D. In fairness, however, that portion of the Terms &
Conditions, which provides an explanatory response to the all-boldface question 1 "WHAT IF I
DON'T PAY ON TIME?" reads in relevant part:
We may use a collection agency to collect past due balances and you agree to pay
collection agency fees. If we accept late or partial payments, you still must pay us
the full amount you owe, including late fees. We will not honor limiting notations
you make on or with your checks. Late payment, nonpayment or collection
agency fees are liquidated damages intended to be a reasonable advance estimate
of our costs resulting from late payments and non-payments by our customers;
these costs are not readily ascertainable and are difficult to predict or calculate at
the time that these fees are set.
Any reasonable person, even including the "unsophisticated consumer" that sets the
standard for Fair Debt Collection Practices Act purposes, must necessarily realize that the "costs
of collection" are not limited, as the Complaint asserts unreasonably, to the sole act of sending
out a notice of delinquency. And as to the reasonableness of a modest $25 charge for the time
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1
That question and the answer given by T-Mobile are part of an extended series of
questions and explanations likely to be of interest to a purchasing customer such as Andrades.

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and money necessarily involved in processing any collection effort, it is surely unfair to fault the
creditor or the collection agency because the amount on which the debtor elected to default was
$97. 2
Accordingly this Court is not currently taking the steps that it customarily pursues
initially as to every case assigned to its calendar. Instead it will await the prompt input of
Andrades' counsel on the matters dealt with here.

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Milton I. Shadur
Senior United States District Judge
Date: October 5, 2016

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2
It might well be said parenthetically that what has been discussed here casts doubt on
the Complaint's class assertion that portrays Andrades as a proxy for "all others similarly
situated," but this memorandum order expresses no substantive judgment on that subject.

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