Brown v. I.C. System, Inc.

Filing 40

MEMORANDUM Opinion and Order. Defendant's motion for summary judgment 25 is granted in part and denied in part. The motion is granted as to plaintiff's TCPA claim (Count II). It is otherwise denied. The Court sets a status hearing for April 17, 2019 at 9:30 a.m. Signed by the Honorable Jorge L. Alonso on 3/20/2019. Notice mailed by judge's staff (ntf, )

Case: 1:16-cv-09784 Document #: 40 Filed: 03/20/19 Page 1 of 15 PageID #:596

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GAILYA ANN BROWN,
Plaintiff,
v.

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)
)
)
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No. 16 C 9784
Judge Jorge Alonso

I.C. SYSTEM, INC.,
Defendant.

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)

MEMORANDUM OPINION AND ORDER
Plaintiff, Gailya Ann Brown, brings this case against defendant I.C. System, Inc. (“ICS”),
claiming that defendant’s efforts to collect a debt from her violated the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Illinois Consumer Fraud Act
(“ICFA”), 815 ILCS 505/1 et seq. 1 The case is before the Court on defendant’s motion for
summary judgment. For the following reasons, the motion is granted in part and denied in part.
BACKGROUND
The following is a recitation of material facts as they appear in the light most favorable to
plaintiff, the nonmoving party.

The Court does not “necessarily vouch for the objective

accuracy of all factual statements here, but [defendant has] moved for summary judgment, which
requires [viewing] the evidence in this harsh light.” Fish v. Greatbanc Tr. Co., 749 F.3d 671,
674 (7th Cir. 2014).
Defendant is a debt collection agency. (Pl.’s LR 56.1 Resp. ¶ 1, ECF No. 30.) In the fall
of 2015, plaintiff received numerous calls at [phone], her cell phone number, from
representatives of defendant who were trying to collect a debt owed by another person. Plaintiff
1

Plaintiff’s complaint also asserts a claim under the Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227(b)(1)(iii). However, as the Court will discuss more fully below, plaintiff has abandoned that
claim.

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remembers receiving some calls in which defendant asked for Shalunda Roper, and others in
which defendant asked for a male consumer whom the parties do not identify to protect his
privacy. Plaintiff sometimes hung up immediately without saying anything, but she recalls
speaking with an ICS representative on at least five occasions and, on each occasion, telling the
representative to stop calling her because she is not the person they were looking for. (See Pl.’s
Mem. in Opp’n Ex. B, Pl.’s Dep. at 36:23-37:5, 49:10-51:12, 84:9-88:15, 89:9-90:7, 172:13-24,
ECF No. 29-2.) On at least one occasion, one of defendant’s collectors sought to induce plaintiff
to pay by telling her that she could garnish plaintiff’s wages. (Id. at 121:1-4.) The collector told
plaintiff, as plaintiff recalled at her deposition, “I have the last four digits of your Social Security
number, and I can just go into your account and get the money, collect the debt.” (Id. at 103:23104:14.) Prior to filing this lawsuit, plaintiff reviewed the call history on her phone and counted
approximately twenty phone calls that she received from defendant. (Id. at 90:23-91:4.)
On September 30, 2014, AT&T placed a debt with defendant for collection, and
defendant opened account number 74401753 in the name of a consumer whom the parties do not
identify to protect his privacy. (Pl.’s Mem. in Opp’n Ex. A, Def.’s Rule 30(b)(6) Dep. at 38:2444:11, ECF No. 29-1). The phone number defendant received from AT&T for this account was
[phone]—plaintiff’s number. (Id. at 49:17-50:16.) According to the 74401753 account
history kept by defendant, defendant made a phone call to [phone] on October 3, 2014,
which lasted sixty-one seconds. (Id. at 59:16-61:20.)
Defendant had a second account, file number 91080072, in the name of the same
unidentified consumer as account number 74401753, with the same listed phone number, (312)
285-9382. (Id. at 65:16-70:5.) Defendant’s records show that, in fall 2015, it placed twenty
collection calls on the 91080072 account to [phone]. (Decl. of Mike Selbitschka ¶¶ 8-15,

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26-27, ECF No. 25-1; see Pl.’s LR 56.1 Resp. ¶¶ 5-9, ECF No. 30; 30(b)(6) Dep. at 71:7-14,
102:14-112:13.) Two of these calls connected, on October 20, 2015, and December 3, 2015.
(Id. at 71:15-22.) Defendant has recordings of these calls, and in both of them, the person who
answered hung up right away, without providing any identifying information or telling the caller
to stop calling. (Pl.’s LR 56.1 Resp. ¶¶ III.8-9.) Defendant does not have a recording of the
October 3, 2014, sixty-one-second phone call. (Id.)
Plaintiff was unaware that public records had shown her cell phone number, (312) 2859382, to be associated with both Shalunda Roper and the unidentified male consumer. (Pl.’s
Mem. in Opp’n Ex. B, Pl.’s Dep. at 37:6-38:1.) Approximately ten years before filing this case,
plaintiff had been a victim of identity theft. (Id. at 155:9-23.)
DISCUSSION
“The Court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); Wackett v. City of Beaver Dam, 642 F.3d 578, 581 (7th Cir. 2011). A genuine
dispute of material fact exists if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court may not weigh conflicting evidence or make credibility determinations, but the party
opposing summary judgment must point to competent evidence that would be admissible at trial
to demonstrate a genuine dispute of material fact. Omnicare, Inc. v. UnitedHealth Grp., Inc.,
629 F.3d 697, 705 (7th Cir. 2011); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). The
court will enter summary judgment against a party who does not “come forward with evidence
that would reasonably permit the finder of fact to find in [its] favor on a material question.”
Modrowski v. Pigatto, 712 F.3d 1166, 1167 (7th Cir. 2013). The Court construes all facts and

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draws all reasonable inferences in favor of the nonmoving party. Chaib v. Geo Grp., Inc., 819
F.3d 337, 341 (7th Cir. 2016).
I.

TCPA CLAIM
Plaintiff’s complaint contains three counts: Count I, for violation of the FDCPA; Count

II, for violation of the TCPA; and Count III for violation of the ICFA. After defendant moved
for summary judgment on all three counts, plaintiff filed a Notice of Voluntary Dismissal of the
TCPA claim “pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i)” (ECF No. 27), and she
opposed defendant’s motion as to the other two claims.
Rule 41(a)(1)(A)(i) permits a plaintiff to voluntarily dismiss a claim without prejudice,
on notice and without a court order, “before the opposing party serves either an answer or a
motion for summary judgment.” In this case, defendant had served both an answer and a motion
for summary judgment at the time of plaintiff’s notice of voluntary dismissal, so Rule
41(a)(1)(A)(i) does not apply. Because plaintiff’s notice of voluntary dismissal was ineffective
to dismiss the TCPA claim, the Court must consider whether to grant defendant’s motion for
summary judgment on that claim.
Plaintiff made no response to defendant’s motion in defense of the TCPA claim, so the
Court deems that claim abandoned. See Little v. Mitsubishi Motors North Amer., Inc., 261 F.
App’x. 901, 903 (7th Cir. 2008) (plaintiff who “failed to present facts or develop any legal
arguments” as to certain claims in response to motion for summary judgment deemed to have
abandoned them). The Court grants defendant’s motion for summary judgment on the TCPA
claim.

II.

ARTICLE III STANDING

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Defendant argues that plaintiff lacks Article III standing because she suffered no actual
injury. Neither side devotes much discussion to the issue, nor does it deserve much. As this
Court and numerous courts in this district have explained, a plaintiff who claims that a debt
collector made “unlawful debt collection” demands in violation of the FDCPA, Pierre v.
Midland Credit Mgmt., Inc., No. 16 C 2895, 2017 WL 1427070, at *4 (N.D. Ill. Apr. 21, 2017),
has asserted an injury that, even if “intangible,” is sufficiently “concrete” to satisfy the standing
requirements of Article III under Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016). See Wise
v. Credit Control Servs., Inc., No. 16 C 8128, 2018 WL 5112983, at *3 (N.D. Ill. Oct. 19, 2018)
(citing cases); McMahon v. LVNV Funding, LLC, 301 F. Supp. 3d 866, 879-80 (N.D. Ill. 2018)
(same). Plaintiff’s ICFA claim is based on the same interest of plaintiff and same conduct of
defendant, and therefore, for the same reasons, plaintiff has standing to assert that claim as well.
Plaintiff has Article III standing.
III.

FDCPA
The FDCPA was enacted “to eliminate abusive debt collection practices, to ensure that

debt collectors who abstain from such practices are not competitively disadvantaged, and to
promote consistent state action to protect consumers.” Jerman v. Carlisle, McNellie, Rini,
Kramer & Ulrich LPA, 559 U.S. 573, 577 (2010). The statute “regulates interactions between
consumer debtors and debt collectors,” id. (internal quotation marks omitted), for the “purpose”
of “protect[ing] consumers,” Muha v. Encore Receivable Mgmt., Inc., 558 F.3d 623, 628 (7th
Cir. 2009). Most provisions of the FDCPA apply not only to debtors but also to other persons
whom a debt collector might target, such as family members, see Todd v. Collecto, Inc., 731 F.3d
734, 737-39 (7th Cir. 2013), Koval v. Harris & Harris, Ltd., No. 16-CV-08449, 2017 WL
1321152, at *1–2 (N.D. Ill. Apr. 5, 2017), or persons erroneously treated as the debtor, see

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Brown v. Palisades Collection LLC, No. 1:11-CV-00445-JMS, 2011 WL 2532909, at *2, *2 n.1
(S.D. Ind. June 24, 2011) (“The FDCPA includes not only actual obligations, but also merely
‘alleged obligation[s]’ within its definition of a ‘debt.’ 15 U.S.C. § 1692a(5). The latter
encompasses obligations that debt collectors attempt to enforce against the wrong party.”); see
also Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 773 (7th Cir. 2007) (“[S]ections
1692d, e, or f . . . do not designate any class of persons . . . who can be abused, misled, etc., by
debt collectors with impunity.”).
The FDCPA forbids abusive, misleading, or unfair debt collection practices.
Specifically, under the FDCPA, “[a] debt collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any person in connection with the collection
of a debt,” including, for example, by “[c]ausing a telephone to ring or engaging any person in
telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any
person at the called number.” 15 U.S.C. § 1692d(5). Further, “[a] debt collector may not use
any false, deceptive, or misleading representation or means in connection with the collection of
any debt,” including, for example, “[t]he false representation of . . . the character, amount, or
legal status of any debt,” “[t]he representation or implication that nonpayment of any debt will
result in . . . the seizure, [or] garnishment . . . of any . . . wages of any person unless such action
is lawful and the debt collector or creditor intends to take such action,” “the threat to take any
action that cannot legally be taken or that is not intended to be taken,” and “the use of any false
representation or deceptive means to collect or attempt to collect any debt.” 15 U.S.C. §
1692e(2), (4), (5), (10). Additionally, the FDCPA prohibits a debt collector from using “unfair
or unconscionable means to collect or attempt to collect a debt.” 15 U.S.C. § 1692f.

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The Court evaluates whether a debt collector’s practices violate the FDCPA from the
standpoint of the “unsophisticated consumer.” Evory, 505 F.3d at 774. The “unsophisticated
consumer” is not the “least intelligent consumer,” id., or a “dimwit,” Lox v. CDA, Ltd., 689 F.3d
818, 822 (7th Cir. 2007). He has “rudimentary knowledge about the financial world and is
capable of making basic logical deductions and inferences,” but he may be “uninformed, naïve,
and trusting.” Lox, 689 F.3d at 822 (internal quotation marks, alterations, and citations omitted).
A. Whether Defendant’s Phone Calls Were Harassment under 15 U.S.C. § 1692d
“Whether ‘repeated phone calls were made with intent to annoy, abuse, or harass,’
depends on the volume and pattern of calls.” [Hendricks v. CBE Grp., Inc., 891 F.
Supp. 2d 892, 896 (N.D. Ill. 2012)] (quoting Majeski v. I.C. Sys., Inc., 08 CV
5583, 2010 WL 145861, at *3 (N.D.Ill. Jan.8, 2010)). Generally, there are two
types of evidence presented to show an intent to harass under § 1692d(5). See
id. “First, where a plaintiff has shown that he asked the collection agency to stop
calling . . . and the collection agency nevertheless continued to call the
plaintiff.” Id. “Second, the volume and pattern of the calls may themselves
evidence an intent to harass.” Id. Often, “the reasonableness of the volume and
pattern of telephone calls is a question of fact best left to a jury.” Majeski, 2010
WL 145861, at *3; see also Bassett v. I.C. Sys., Inc., 715 F.Supp.2d 803, 810
(N.D.Ill. 2010) (“Because it is undisputed that [defendant] called [plaintiff] thirtyone times over a twelve day period, [plaintiff] has presented sufficient evidence
raising a genuine issue of material fact that [defendant] violated Section 1692d(5)
of the FDCPA.”).
Kube v. Creditors Collection Bureau, Inc., No. 10 C 7416, 2012 WL 3848300, at *2 (N.D. Ill.
Aug. 30, 2012).
Defendant argues that it did not abuse or harass plaintiff as a matter of law under 15
U.S.C. § 1692d(5) by calling her twenty times in a period of two months.

According to

defendant, this relatively low volume of calls, unaccompanied by any aggravating circumstances
showing an intent to harass, is insufficient to create a jury question on the issue. See, e.g.,
Carman v. CBE Grp., Inc., 782 F. Supp. 2d 1223, 1229-32 (D. Kan. 2011) (granting summary
judgment for debt collector who called 149 times in a two-month period). Defendant argues that

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its recordings of connected calls show that plaintiff never told defendant to stop calling; on the
few occasions when she picked up, she simply hung up again. Based on these records, defendant
argues, plaintiff’s self-serving deposition testimony in which she describes telling defendant
several times to stop calling cannot create a genuine issue of fact for trial.
Defendant is incorrect. The fact that plaintiff’s claims rely on “self-serving” deposition
testimony is no defect at the summary judgment stage; even “‘uncorroborated, self-serving
testimony, if based on personal knowledge or firsthand experience, may prevent summary
judgment against the non-moving party, as such testimony can be evidence of disputed material
facts.’” Marr v. Bank of Am., N.A., 662 F.3d 963, 968 (7th Cir. 2011) (quoting Montgomery v.
Am. Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010)); cf. Hendricks, 891 F. Supp. 2d at 895
(citing Marr and Montgomery in FCDPA context). Additionally, defendant ignores the fact that
it initially found records of only nineteen phone calls it had made to the [phone] number
on the 91080072 account; it only discovered the twentieth phone call after plaintiff’s counsel
asked defendant at its Rule 30(b)(6) deposition why plaintiff’s phone records show that she had
received a phone call from defendant on October 26, 2015, but the 91080072 account history
revealed no such call. (Pl.’s Dep. at 102:14-112:13.) Defendant explains this discrepancy as due
to an “improper refresh of the data” (Selbitschka Decl. ¶ 27), but whatever that means, it tends to
show that defendant’s records are no more conclusive or infallible than plaintiff’s memory. A
reasonable factfinder could conclude that, if defendant made one mistake in searching,
processing, or maintaining its data, it may have made others.
Further, even if it were correct that defendant’s records somehow trump plaintiff’s
testimony at the summary judgment stage (and that is not the law), defendant ignores the fact
that its records can be partially reconciled with plaintiff’s testimony. Defendant’s records show

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that defendant made a call to plaintiff’s cell phone number on October 3, 2014, which lasted for
sixty-one seconds, more than enough time for plaintiff to tell defendant that she was not the
person defendant was looking for and to stop calling. Because a reasonable jury could find in
plaintiff’s favor if it finds her credible, there is a genuine factual dispute as to how many times
defendant called plaintiff and what the parties may have said to one another during those phone
calls.
Furthermore, the dispute is material because twenty calls over two months are not so few
and far between that they cannot constitute a violation of § 1692(d)(5), at least under the
circumstances of this case. See Bruner v. AllianceOne Receivables Mgmt., Inc., 2017 WL
770993, at *2-3 (N.D. Ill. Feb. 28, 2017) (eleven phone calls over six weeks, “an average of
[approximately] two calls per week[,] plausibly indicates intent to harass or annoy”).
Particularly if the jury believes that defendant knew or should have known, perhaps based on the
October 3, 2014 phone call, that [phone] was not the number of the person it was trying
to reach, and/or that plaintiff specifically told defendant that she was not the person defendant
was trying to reach and that defendant should stop calling, it could interpret twenty calls between
October and December 2015, an average of approximately 2.5 calls per week, as evidence not of
a “legitimate persistent attempt to reach the plaintiff,” Carman, 782 F. Supp. 2d at 1231, but of
an intent to annoy or harass plaintiff.
The “general rule” is that whether the “volume and pattern of a debt collector’s calls
violates the FDCPA is a jury question,” and this case warrants no exception. See Losch v.
Advanced Call Ctr. Techs., LLC, No. 15 C 6644, 2017 WL 1344524, at *3 (N.D. Ill. Apr. 12,
2017). Defendant’s motion for summary judgment is denied as to plaintiff’s § 1692d claim.
B. Whether Defendant’s Phone Calls Were Deceptive Under 15 U.S.C. 1692e

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Defendant argues that its conduct was not deceptive under § 1692e because it did no
more than attempt to reach a debtor. Its recordings show, according to defendant, that it made no
attempt to deceive or mislead plaintiff; in fact, defendant argues, it never had the chance to say
anything to plaintiff because she either ignored its calls or hung up right away.
Again, defendant ignores the fact that plaintiff’s deposition testimony told a different
story: she testified that she spoke to defendant’s collectors on several occasions, she told them
that she is not the person they were looking for, but at least one of them told plaintiff that
defendant could garnish her wages.

In addition to forbidding misleading representations

generally, § 1692e specifically forbids debt collectors from making any “representation or
implication that nonpayment of any debt will result in . . . the seizure, [or] garnishment . . . of
any . . . wages of any person unless such action is lawful and the debt collector or creditor
intends to take such action.” 15 U.S.C. § 1692e(4). It also prohibits debt collectors from making
any “threat to take any action that cannot legally be taken or that is not intended to be taken.” 15
U.S.C. § 1692e(5). At her deposition, plaintiff explained her theory that, having told defendant’s
collectors that she was not the person they were looking for, they continued calling in hopes that
she would simply pay the debt anyway just to stop them from hassling her. (Pl.’s Dep. at
124:23-125:5.) If the jury believes her, then it could find that defendant falsely represented to
her that it had “the last four digits of [plaintiff’s] Social Security number” and could “just go into
[plaintiff’s] account and get the money,” when in fact it had no such information or ability. (Id.
at 103:23-104:14.) If the jury believes plaintiff, it could find that defendant threatened to garnish
plaintiff’s wages, although it had neither the intent nor the legal right to do so. These are
potential violations of the FDCPA according to the plain text of 15 U.S.C. § 1692e(4) and (5), as
well as § 1692e’s general prohition of the use of “false, deceptive, or misleading

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representation[s] in connection with the collection of any debt.” See Lox, 689 F.3d at 825 (“[I]t
is improper under the FDCPA to imply that certain outcomes might befall a delinquent debtor
when, legally, those outcomes cannot come to pass.”). Defendant’s motion is denied as to
plaintiff’s § 1692e claim.
C. Whether Defendant’s Phone Calls Were Unfair Under 15 U.S.C. 1692f
Defendant argues that its conduct was not unfair or unconscionable under 15 U.S.C. §
1692f because that provision is a “catchall” for conduct not otherwise covered by the FDCPA. If
plaintiff’s allegations are true, then defendant’s conduct falls within the scope of § 1692d and §
1692e, and according to defendant, that means it necessarily does not fall within the scope of §
1692f.
Some courts would agree with defendant that debt collection practices do not violate §
1692f if they violate other provisions of the FDCPA, see, e.g., Mills v. Turner, No. CV 1513267-MLW, 2017 WL 3670967, at *11 (D. Mass. Aug. 25, 2017), but the Seventh Circuit is not
among them. The Seventh Circuit has recognized that the same conduct can violate § 1692f as
well as other provisions. See McMillan v. Collection Prof’ls Inc., 455 F.3d 754, 765 (7th Cir.
2006) (debtor who received letter accusing her of dishonesty stated claim under both §1692e(7)
and f) (citing Field v. Wilber Law Firm, P.C., 383 F.3d 562, 566 (7th Cir. 2004) (debtor who
received misleading letter stated claim under §1692e and f))); see also Todd, 731 F.3d at 739
(citing as “instructive” Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507, 1517 (9th Cir. 1994),
which held that “seeking a writ of garnishment when the debtor was not behind in making
payments can violate § 1692f,” where debtor had also stated overlapping claims under § 1692d
and e). This approach is consistent with the broad language of the statute, as the Seventh Circuit

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explained in McMillan, 455 F.3d at 764-65, and as the Sixth Circuit explained in Currier v. First
Resolution Investment Corp.:
It must be remembered that the [FDCPA] prohibits “in general terms” harassing,
unfair, or deceptive collection practices. S.Rep. No. 95-382, at 4, 1977
U.S.C.C.A.N. 1695, 1698. While “misleading” practices under § 1692e and
“unfair” practices under § 1692f reference separate categories of prohibited
conduct, they are broad, potentially overlapping, and are not mutually exclusive.
A debt collector’s action could be “misleading” under § 1692e, “unfair” under §
1692f, or, as alleged here, both.
762 F.3d 529, 536 (6th Cir. 2014); see also Tarrant v. Portfolio Recovery Assocs., LLC, No.
3:11-00664, 2011 WL 5042057, at *4–5 (M.D. Tenn. Oct. 24, 2011) (sending collection letter
that failed to disclose debtor’s rights under § 1692g was an “unfair” practice under § 1692f). In
this circuit, § 1692f does not exclude certain conduct from its reach merely because that conduct
is also covered by other provisions of the FDCPA.
As for what conduct § 1692f actually reaches, the Seventh Circuit has recognized that §
1692f’s “unfair or unconscionable” phrase is “as vague as they come.”

Beler v. Blatt,

Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470, 474 (7th Cir. 2007). This vagueness makes
the provision difficult to apply, but in Todd, the Seventh Circuit traced certain guideposts in the
case law:
Case law . . . provides instructive examples of collection practices—both fair and
unfair—that are not specifically addressed in § 1692f. Asking a consumer to pay a
debt discharged in bankruptcy, for example, is not unfair or unconscionable
within the meaning of § 1692f, though it violates another provision of the
FDCPA. Turner [v. J.V.D.B. & Assocs., 330 F.3d 991, 998 (7th Cir. 2003)].
Neither is it unfair for a college to withhold a student’s transcript until she has
settled her debt to the school. Juras v. Aman Collection Serv., Inc., 829 F.2d 739,
742-44 (9th Cir. 1987). On the other hand, seeking a writ of garnishment when
the debtor was not behind in making payments can violate § 1692f. Fox v.
Citicorp Credit Servs., Inc., 15 F.3d 1507, 1517 (9th Cir. 1994). And . . . in an
opinion affirming a judgment in favor of the FTC and against a debt collector for
violations of § 1692f and other sections of the FDCPA, the Third Circuit
described the defendant’s practice of calling debtors’ family members and
demanding payment as one of its most egregious practices, though the court did
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not specify which provision or provisions this particular conduct violated.
See FTC v. Check Investors, Inc., 502 F.3d 159, 164 (3d Cir. 2007) (“Check
Investors’ tactics apparently knew no limits. It routinely contacted family
members of obligors. In one case, Check Investors [ ] repeatedly called a 64-year
old mother regarding her son’s debt; fearing that her son would be arrested and
carted off to jail, she paid the amount of the demand.”).
731 F.3d at 739. Based on this discussion, and particularly on the approving citation to Fox, this
Court concludes that, viewing the facts in the light most favorable to plaintiff, a reasonable jury
could conlude that defendant’s conduct falls within the scope of § 1692f. For essentially the
same reasons that defendant’s conduct is potentially absusive and misleading under other
sections of the FDCPA, it is potentially unfair under § 1692f: a reasonable jury could conclude
that, by way of harassment and false threats, defendant sought to collect from plaintiff a debt that
it knew or should have known that she did not owe. Defendant’s motion is denied as to
plaintiff’s § 1692f claim.
IV.

ILLINOIS CONSUMER FRAUD ACT

“The elements of a claim under the Illinois Consumer Fraud Act, 815 ILCS 505/2, are:
(1) a deceptive act or practice by defendant; (2) defendant’s intent that plaintiff rely on the
deception; and (3) that the deception occurred in the course of conduct involving trade and
commerce.” Connick v. Suzuki Motor Co., 675 N.E.2d 584, 593 (Ill. 1996) (internal citation
altered). The ICFA also prohibits “unfair” conduct, which courts are to identify as follows:
In interpreting unfair conduct under the Consumer Fraud Act, Illinois courts look
to the federal interpretations of unfair conduct under section 5(a) of the Federal
Trade Commission Act, 15 U.S.C. § 45. Robinson [v. Toyota Motor Credit Corp.,
775 N.E.2d 951, 960 (Ill. 2002)]; 815 ILCS 505/2. Thus, three considerations
guide an Illinois court’s determination of whether conduct is unfair under the
Consumer Fraud Act: “(1) whether the practice offends public policy; (2) whether
it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes
substantial injury to consumers.” Robinson, 75 N.E.2d at 961.

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Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 669
(7th Cir. 2008) (internal parallel citations omitted). Conduct violates the public policy prong of
the unfairness test if it “is at least within the penumbra of some established concept of
unfairness.” Ekl v. Knecht, 585 N.E.2d 156, 163 (Ill. App. Ct. 1991); see LSREF3 Sapphire Tr.
2014 v. Barkston Properties, LLC, No. 14 C 7968, 2016 WL 302150, at *7 (N.D. Ill. Jan. 25,
2016). Additionally, to prevail on a claim under the ICFA, the plaintiff “must prove that he or
she suffered ‘actual damage as a result of a violation.’” Avery v. State Farm Mut. Auto. Ins. Co.,
835 N.E.2d 801, 858-59 (Ill. 2005) (citing 815 ILCS 505/10a(a)). Defendant argues that plaintiff
has not demonstrated any deceptive or unfair conduct or any actual damage.
Defendant’s argument that plaintiff has not shown deceptive or unfair conduct essentially
duplicates its arguments that its conduct was not deceptive or unfair under the FDCPA, and the
Court rejects it for similar reasons. See Sapphire, 2016 WL 302150, at *6-7 (counterclaimants
stated claim based on debt collector’s abusive debt collection practices under FDCPA and
ICFA).
As for whether plaintiff suffered actual damages, plaintiff testified that she was
suspended from work for three shifts for answering one of defendant’s telephone calls while at
work, and she downloaded a call blocker application for her phone that, while free to download,
charged regular usage fees. (Pl.’s LR 56. Resp. ¶ V.15.) While small, these are actual pecuniary
damages for purposes of an ICFA claim. Cf. Avery, 835 N.E.2d at 859-60. However, defendant
argues that plaintiff has not produced documentation substantiating them.

In response to

defendant’s argument, plaintiff has pointed to nothing other than her deposition testimony.
The Court agrees with defendant that plaintiff’s deposition testimony is insufficient to
prove any damages with respect to the call blocker app. Plaintiff testified that she was charged

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Case: 1:16-cv-09784 Document #: 40 Filed: 03/20/19 Page 15 of 15 PageID #:610

monthly fees for usage of the app, but she did not know the amount of the monthly fees or for
how many months she paid them. Any amount the jury awarded in damages based on these fees
would be arbitrary and purely speculative.
But the suspension is another matter. Plaintiff testified that she answered a call from
defendant while at work; she earned about $7 an hour in that position; and she was suspended for
three six-hour shifts. (Pl.’s Dep. at 100:2-101:15.) A reasonable jury, if it finds plaintiff credible
and agrees with her that defendant caused these damages, could calculate actual damages with
reasonable certainty based on that testimony.
CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment [25] is granted in
part and denied in part. The motion is granted as to plaintiff’s TCPA claim (Count II). It is
otherwise denied. The Court sets a status hearing for April 17, 2019 at 9:30 a.m.

SO ORDERED.

ENTERED: March 20, 2019

__________________________________
HON. JORGE ALONSO
United States District Judge

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