Netzel et al v. Wakefield & Associates, Inc.

Filing 4

MEMORANDUM Order. Signed by the Honorable Milton I. Shadur on 2/1/2017.Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IN RE: MICHAEL and KELLY NETZEL,
Plaintiffs,
v.
WAKEFIELD & ASSOCIATES
830 E. Platte Ave. Unit A
Fort Morgan, CO 80701
Defendant.

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Case No. 17 C 659

MEMORANDUM ORDER
This action by Michael and Kelly Netzel (collectively "Netzels") 1 has invoked the Fair
Debt Collection Practices Act (the "Act") 2 to charge Wakefield & Associates ("Wakefield") with
having engaged in unlawful collection practices violating the Act. This memorandum order is
issued sua sponte because of the problematic nature of the Complaint as presented by Netzels'
counsel.
What the Complaint targets is a single communication from Wakefield to addressees
identified as "The Parents Of Harmony Richardson," conveying a message admittedly identified
in the document itself as "a communication from a debt collector." What is charged in the
Complaint as having run afoul of the Act is the inclusion of the underscored portion of the
following printed message that makes up the text of the communication:
_________________________
1
Netzels' attorney has been impermissibly careless in referring to "Plaintiffs" at many
places in the Complaint and to "Plaintiff" (presumably meaning Michael Netzel) in others.
2

All references to provisions of the Act will simply take the form "Section --," omitting
any prefatory reference to Title 15 of the United States Code, where the Act has been codified.

Our client(s) referred your past due account(s) to this Agency for collection. If
there is some reason why you are unable to make full payment on this outstanding
balance we ask that you contact our office.
To insure proper credit to your account(s) please use payment coupon below and
make your check payable to Wakefield & Associates, Inc. Interest may be
accruing on the balance, please call for updated total before sending payment.
You may make your payment online by going to our payment vendor's secure
website: wakefieldpaymentsolutions.com.
According to Netzels' counsel, that communication violates Section 1692e. In that
respect Complaint ¶¶ 22 through 24 allege:
22.

There has been no agreement for interest between Plaintiff and the original
creditor.

23.

Therefore, the only interest that would apply would be statutory interest,
which here in Illinois is governed by 815 ILCS 205/, which states
statutory interest does not apply until there has been a 30 day notice for
such interest by the Debt Collector.

24.

Here, the letter is the thirty day notice, it is not legally possible for interest
to accrue at this point.

And as Netzels' counsel would have it, the language in Wakefield's communication that has been
underlined above in this memorandum order violated Section 1692e by materially misleading
Netzels 3 because, as Complaint ¶ 25 alleges:
It is a violation of 15 U.S.C. Section 1692e to imply an outcome that can not
legally come to pass.
This Court is of course well aware of the low level of sophistication or comprehension on
the part of someone targeted by a debt collector that our Court of Appeals has set as the standard
for finding any communication from that debt collector violative of the Act. But here Netzels'
_________________________
3
That's a guess by this Court, for counsel has materially misled it by using "Plaintiff" in
the singular.

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Complaint seeks to call to their aid caselaw from our Court of Appeals and other courts that does
not at all justify the pejorative claim advanced in the Complaint.
On that score, although is quite true that interest could not have been accruing at the time
Wakefield sent its communication because of the 30 day notice provision of 815 ILCS 205/2,
analysis shows that Netzels could not even arguably have been damaged by the inclusion of the
challenged language in Wakefield's communication as assertedly "imply[ing] an outcome that
cannot legally come to pass":
1.

On the one hand, if as Wakefield's notice directed the addressees were to
call it to inquire about a possible interest charge before sending any
payment, there is nothing at all to suggest that Wakefield would have
responded by telling a lie on that subject. No harm, no foul.

2.

If on the other hand Netzels had simply ignored that direction and actually
paid the principal of their $1,524 obligation to the creditor for which
Wakefield was acting as a debt collector, Netzels could not complain
about their having honored an acknowledged indebtedness by paying it.

In sum, counsel's effort to convert the Wakefield communication into a violation of
Section 1692e in the respect charged in Complaint ¶ 25 is itself a false and misleading
application of that statute. This Court accordingly dismisses both the Complaint and this action.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: February 1, 2017
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