Sims v. Immediate Credit Recovery Inc

Filing 56

ORDER signed by Judge J.P. Stadtmueller on 11/21/2017: GRANTING 53 Plaintiff's Motion for Leave to File Sur-Reply; DENYING as moot 36 Defendant's Motion for Protective Order; GRANTING 40 Defendant's Motion for Summary Judgment; and DISMISSING CASE with prejudice. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RACHAEL SIMS,

v.

Plaintiff,

IMMEDIATE CREDIT RECOVERY
INC.,

Case No. 17-CV-67-JPS

ORDER

Defendant.
1.

INTRODUCTION
Plaintiff obtained a student loan through the Department of

Education (“DOE”). When she defaulted on the loan, the DOE brought in
Defendant Immediate Credit Recovery, Inc. (“ICR”) to help collect what
was owed. The DOE also began administratively garnishing Plaintiff’s
wages. Plaintiff contacted ICR in an attempt to stop the garnishment. Over
several months, Plaintiff worked with ICR to become eligible for the DOE’s
loan rehabilitation program, which would end the garnishment. Plaintiff’s
lawsuit alleges that ICR obstructed her efforts to enter the program,
unnecessarily prolonging her garnishment. She maintains that this conduct
violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692
et seq., and the Wisconsin Consumer Act (“WCA”), Wis. Stat. § 427 et seq.
On September 5, 2017, ICR filed a motion for summary judgment.
(Docket #40). Plaintiff opposed the motion on October 9, 2017, and ICR
replied on October 23, 2017. (Response, Docket #49; Reply, Docket #51).
Plaintiff then sought leave to submit a sur-reply, alleging that ICR raised
new arguments in its reply brief. (Docket #53). The Court will grant that

motion and accept Plaintiff’s sur-reply. It does not change the result—
summary judgment is appropriate in ICR’s favor on all of Plaintiff’s claims.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 states that 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); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016).
A “genuine” dispute of material fact is created when “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 construes
all facts and reasonable inferences in a light most favorable to the nonmovant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir.
2016). In assessing the parties’ proposed facts, the Court must not weigh the
evidence or determine witness credibility; the Seventh Circuit instructs that
“we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d
688, 691 (7th Cir. 2010).
3.

FACTUAL BACKGROUND
Upon review of the parties’ factual briefing, the Court finds that the

following facts are material to ICR’s motion. The Court notes the parties’
disputes where appropriate.1 ICR works for the DOE to help collect
delinquent DOE-issued student loans. ICR receives a commission for this
work, which in Plaintiff’s case was 15.2% of the wages which had been
garnished from her. The DOE refers to ICR, and the many other companies
performing similar services, as “private collection agencies” or “PCAs.”

The facts are drawn from the parties’ factual briefing, (Docket #48 and
#50), unless otherwise indicated.
1

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The activities of PCAs are governed by a DOE-issued document known as
the PCA manual (the “Manual”), as well as various laws. PCAs are charged
not only with collecting student loans, but assisting in rehabilitating
defaulted loans. Rehabilitation is one way to end wage garnishment for a
borrower in default.
PCAs use a multi-step process to determine eligibility for loan
rehabilitation. First, they obtain information about the borrower’s income,
expenses, and family size over the phone. The PCA uses that information
to arrive at an estimated rehabilitation payment. The borrower immediately
begins making estimated payments, while also sending a “Financial
Disclosure for Reasonable and Affordable Rehabilitation Payments” form
(“Financial Disclosure” form) and income verification documents (such as
pay stubs) to the PCA. Once all of the documents and forms are submitted,
the information is processed by the PCA and the DOE. The borrower must
also make nine of the estimated monthly payments to qualify for
rehabilitation.
If they confirm the borrower is eligible for loan rehabilitation, the
PCA sends a rehabilitation agreement letter (“RAL”) containing the final
terms. The final rehabilitation payment stated therein may be higher or
lower than the estimated payment. If it is higher, the borrower has an
opportunity to challenge that figure. If the borrower accepts the terms of
the RAL, they must sign and return it to the PCA. Only then is the borrower
formally entered into the rehabilitation program. Plaintiff says that
according to the Manual, the RAL must be sent within fifteen days of
receiving the borrower’s completed paperwork.

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On April 30, 2016, the DOE placed Plaintiff’s defaulted student loan
with ICR for collection. In October 2016, wage garnishment began.2 At that
time, Plaintiff attempted to contact ICR. She called and left messages with
ICR on October 20, and the called on each day from November 1 to
November 4, 2016. She was unable to speak with someone in the
department handling her loan, however, and ICR could not reach her each
time it tried calling back.
Finally, on November 28, 2016, Plaintiff spoke with an ICR
representative, Ashley Hunter (“Hunter”). Hunter told Plaintiff about the
loan rehabilitation program. She noted that an active wage garnishment
may be suspended after the fifth consecutive estimated rehabilitation
payment is made, so long as the borrower has met all of the other
requirements for rehabilitation. Hunter further stated that Plaintiff was
required to send in proof of her income, and that “[o]nce your proof of
income is received and reviewed, a [RAL] will be sent to you within 15
days.” (Docket #48 at 8). Finally, Hunter informed Plaintiff that she would
not be entered into the rehabilitation program until the Financial Disclosure
and RAL forms were signed and returned, and advised Plaintiff to complete
those tasks as soon as possible.3

The parties dispute who is actually responsible for the garnishment. ICR,
via its corporate representative, says that the DOE alone garnished Plaintiff’s
wages. (Docket #39-1 at 8). Plaintiff counters that the DOE charged ICR with
monitoring the garnishment process and that ICR itself “actually pushes the
[electronic] button that starts the garnishment.” (Docket #48 at 4). The Court need
not resolve the issue as it is not material to the disposition of the case.
2

Plaintiff notes that there was no true deadline for her to complete her
paperwork, but ICR gives its collectors a bonus if they can obtain the paperwork
from a borrower in a two- to three-month window.
3

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Hunter then took Plaintiff’s relevant financial information. Plaintiff’s
statements indicated that she had one dependent and a family size of two,
meaning that her estimated rehabilitation payment was five dollars. Hunter
told Plaintiff she could make her payment over the phone or by mail.
Hunter said that a payment made that day would be credited to November
2016 (thus speeding along Plaintiff’s path towards rehabilitation). Plaintiff
made a payment over the phone at that time. On December 30, 2016,
Plaintiff called to make her next payment. No one was available to take her
call, so she left a message.
In a January 10, 2017 conversation with ICR, ICR’s representative
said that the November 2016 payment was posted on December 1, 2016. To
Plaintiff, this suggested that the payment was credited to December 2016.
Thus, in her view, it had not been not processed in accordance with
Hunter’s promise in the November 28 telephone conversation. ICR explains
that the even though the payment was posted on December 1, it still
counted as a November payment. In fact, ICR states that Plaintiff could
have elected to apply the payment to November or December. Shifting the
payment from one month to the other may have assisted Plaintiff in
completing the above-described steps towards entry into the rehabilitation
program.4 Plaintiff was not told about these policies, however, during the
January 10 conversation or at any other time.
Plaintiff faxed the Financial Disclosure form and her paystubs to ICR
on April 25, 2017. In an affidavit submitted with her response brief, Plaintiff
explains that she waited to send in the documents because she wanted to

Plaintiff did not make another payment until January 30, 2017. Thus, her
November payment was not consecutive and could not be counted towards the
required five consecutive payments needed to suspend the garnishment.
4

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complete the five payments required to suspend the garnishment. By her
calculation, her fifth payment was made in April 2017. If she had been told
about the ability to move the November 2016 payment to December 2016,
she could have reached her fifth payment in March 2017. Plaintiff further
states that ICR did not process her paperwork within fifteen days as they
had promised to do. Instead, it took ICR seventy-one days to process her
documents and issue the RAL.
ICR counters that the fifteen-day period only began once it reviewed
her documents, not simply upon their receipt. Further, it claims that
Plaintiff’s instant explanation for waiting until April 2017 to return her
paperwork contradicts her deposition testimony. During her deposition,
she stated that she waited because of her difficulties in obtaining the
paperwork in October and November 2016. She acted in April 2017
apparently upon advice from her lawyer. Finally, as to Plaintiff’s focus on
the continuing garnishment, ICR informed her in the November 28
conversation that she could request a hearing to dispute the garnishment at
any time.
Plaintiff’s account was placed in a suspended status when ICR
received this lawsuit on January 26, 2017. ICR says that it does not
communicate with borrowers who are in suspended status. Thus, when it
received Plaintiff’s paperwork in April 2017, ICR claims that it could not
contact Plaintiff. Plaintiff counters that ICR spoke with her a number of
times to take monthly payments. ICR also communicated about the
garnishment through Plaintiff’s counsel.

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In fact, Plaintiff’s counsel asked ICR about the status of Plaintiff’s
rehabilitation paperwork on June 13, 2017.5 Plaintiff’s counsel was told that
Plaintiff had left blank the “family size” portion of the Financial Disclosure
form. ICR implies that it did not contact Plaintiff earlier about this issue
because of the suspended status of Plaintiff’s account. In accordance with
DOE standards, when confronted with the blank family size on Plaintiff’s
Financial Disclosure form, ICR defaulted to a family size of one. This meant
that, from ICR’s perspective, Plaintiff’s five dollar monthly payments were
too low and did not count towards her entry into the rehabilitation
program.
This was, of course, different than the information Plaintiff provided
in the November 2016 phone call, and ICR claimed that they were required
to use what was in the form. On June 29, 2017, ICR, via counsel, asked
Plaintiff, via counsel, to complete another Financial Disclosure form
consistent with the telephone information. The updated form was provided
on June 30, 2017. Plaintiff’s updated form corrected the issue by confirming
that Plaintiff’s family size was two. This allowed Plaintiff to receive
appropriate credit for her earlier payments. ICR performed this review on
July 5, 2017. Normally, however, it was ICR’s practice to process the
Financial Disclosure form and related paperwork within 48 hours of
receipt.
With the paperwork correctly completed, ICR was finally able to
send Plaintiff her RAL on July 6, 2017. Plaintiff signed and returned the
letter that same day. ICR notified the DOE that it should stop the

Plaintiff herself had called ICR to inquire about the paperwork on June 1,
2017. The operator attempted to transfer her to the correct department, but Plaintiff
declined to be transferred, as she had a limited amount of time to speak with ICR.
5

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garnishment on August 1, 2017. The last garnishment occurred in Plaintiff’s
July 2017 paycheck. Plaintiff maintains that the Manual require the RAL to
be processed within three days, meaning that ICR’s stop order was
extremely late. ICR objects to the version of the Manual provided by
Plaintiff, which contains this three-day limit, because it lacks foundation
and is heavily redacted for unknown reasons. See (Docket #50-3 at 69-98).6
As to the saga of the improperly-completed Financial Disclosure
form, Plaintiff says it was largely unnecessary. She suggests that ICR should
have used a family size of one—a default assumption contained in ICR’s
training materials—to complete its review of her paperwork.7 ICR would
have then been equipped to issue the RAL within fifteen days of receiving
Plaintiff’s April 25, 2017 fax. Again, Plaintiff believes this fifteen-day
turnaround time was promised to her at the beginning of the rehabilitation
process. Plaintiff also cites the relevant portion of the Manual, which states
that “the PCA must send the RAL letter within 15 days of the receipt of all
required documentation.” Id. at 87. Plaintiff could have then objected to the
payment amount listed in the RAL. Plaintiff asserts that all of this would
have resulted in stopping the garnishment sooner.
ICR stresses that “all required documentation” must actually be
received, which was not the case on April 25, 2017, namely with respect to
the incomplete Financial Disclosure form. Plaintiff finds that this
contention, supported by ICR’s internal policies, is in conflict with the

ICR nevertheless concedes that its contract with the DOE requires ICR to
abide by the terms of the correct version of the Manual, if Plaintiff’s copy is indeed
different. See infra Note 10.
6

The training materials were referenced in the deposition of ICR’s
representative as Exhibit 12. (Docket #50-3 at 109:4-111:2). That exhibit was not
included in Plaintiff’s summary judgment submissions.
7

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Manual. ICR argues that “[l]ogically, . . . ICR must actually review the
documents it receives for accuracy rather than just blindingly [sic]
accepting them before sending the RAL.” (Docket #50 at 10).
4.

ANALYSIS
ICR seeks summary judgment on each of Plaintiff’s claims and

requests dismissal of the entire lawsuit. Plaintiff’s Third Amended
Complaint (her operative pleading) states two causes of action, one under
the FDCPA and the other under the WCA. (Docket #35 at 5-7). The Court
addresses each cause of action separately below.8
4.1

FDCPA

The FDCPA is, as its name suggests, intended to “eliminate abusive
debt collection practices.” 15 U.S.C. § 1692(e). It contains a number of
subsections which regulate certain debt collection practices. Plaintiff says
ICR’s conduct violated three of those subsections. Section 1692d proscribes
“any conduct the natural consequence of which is to harass, oppress, or
abuse” a consumer. Id. § 1692d. Section 1692e prohibits the use of false or
misleading representations in the collection of a debt. Id. § 1692e. Finally,
Section 1692f disallows the use of “unfair or unconscionable means” in
collecting debts. Id. § 1692f. Each of these subsections have, in turn,
enumerated subparts providing specific examples of prohibited conduct.
Id. §§ 1692d, e, f. The subparts do not, however, limit the general application
of each section’s preamble. Id.

In response to ICR’s summary judgment motion, Plaintiff withdrew two
aspects of her FDCPA claim. First is her assertion that ICR failed to provide notice
of the garnishment before initiating it. (Docket #35 at 2-3, 5). Second is a claim
under Subpart (5) of Section 1692e, which bars “[t]he threat to take any action that
cannot legally be taken or that is not intended to be taken.” Accordingly, the Court
makes no further mention of these issues.
8

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Plaintiff’s overarching theory of this case informs the Court’s
analysis as to the majority of her FDCPA claims. In her response brief,
Plaintiff continually grounds these claims in ICR’s alleged violations of the
terms of the Manual or ICR’s internal policies. She points to three such
violations. First, ICR did not process Plaintiff’s paperwork and send her the
RAL within the fifteen-day time period set forth in the Manual, but instead
took seventy-one days to do so. (Docket #49 at 3-5). Second, pursuant to its
own policies, ICR should have ignored her mistake on the Financial
Disclosure form and should have issued the RAL immediately based on an
assumed family size. Id. Third, after receiving the properly completed
paperwork and five consecutive monthly payments, ICR took twenty-six
days to stop the garnishment, when the Manual calls for this to be done in
three. Id. at 5-6.
All but one of Plaintiff’s FDCPA claims are premised on these
violations. Namely, Plaintiff asserts that ICR’s failure to abide by the
Manual’s terms or its own policies necessarily made its conduct
“oppressive,” “misleading,” and “unfair,” and delayed the end of her
garnishment. This theory is tied only to the terms of the Manual and ICR’s
policies. Plaintiff does not argue that the entire course of ICR’s conduct was
too slow in a general sense.9

Plaintiff explicitly ties each of her claims to her policy violation theory. See
(Docket #49 at 7, 10, 11). Indeed, the only place where she even hints at a different
argument is in her sur-reply, where Plaintiff states that
9

[n]otwithstanding the arguments about the PCA Manual, Plaintiff
has alleged sufficient details about the violative nature of
Defendant’s actions and conduct to be viewed as stand-alone
violations of the FDCPA. She has argued how the contents of the
calls and collection actions (apart from the PCA Manual) were
harassing, oppressive, false and misleading. Dkt. 49.

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Plaintiff’s approach fails to raise viable claims. ICR contends that
FDCPA claims do not arise per se from violations of other laws. See Bentrud
v. Bowman, Heintz, Boscia & Vician, P.C., 794 F.3d 871, 875 (7th Cir. 2015).
Plaintiff counters that the Seventh Circuit has only enforced this rule as to
Section 1692f claims. Eul v. Transworld Sys., No. 15-C-7755, 2017 WL
1178537, at *4 (N.D. Ill. Mar. 20, 2017). While Bentrud and its predecessors
only addressed Section 1692f claims, the general principle they announced
seems to reach beyond that particular provision. Bentrud, 794 F.3d at 875
(“The FDCPA is not an enforcement mechanism for matters governed
elsewhere by state and federal law. . . . But that is what Bentrud is
attempting to do here; he seeks to transform the FDCPA into an
enforcement mechanism for the arbitration provision in his credit card
agreement.”); Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470,
473-74 (7th Cir. 2007) (declining to agree with the plaintiff that “it is ‘unfair’
or ‘unconscionable’ for a debt collector to violate any other rule of positive
law”); Evory v. RJM Acquisitions Funding, L.L.C., 505 F.3d 769, 778 (7th Cir.
2007) (“Although a violation of state law is not in itself a violation of the
federal Act, [citing Beler], a threat to impose a penalty that the threatener
knows is improper because unlawful is a good candidate for a violation of
sections 1692d and e.”).
The Court need not finally resolve this issue, as the facts of this case
are not analogous to the cited authorities. The deadlines to which Plaintiff

(Docket #53-1 at 2). The Court cannot locate these “stand-alone violation”
arguments in her response brief. This conclusory statement in her sur-reply is
insufficient to meaningfully raise such arguments. Trentadue v. Redmon, 619 F.3d
648, 654 (7th Cir. 2010) (underdeveloped arguments are waived). Plaintiff tethered
her theory of liability to the policy violations, and cannot untether it in her surreply in a final attempt to avoid summary judgment.

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ties her claims are not law, and do not create rights running from ICR to
Plaintiff. The Manual is a private document shared by the DOE with its
PCAs which governs their collection activities.10 Plaintiff does not suggest
that she was ever told about its contents, or even its existence, prior to
initiating this litigation. Similarly, Plaintiff could not have known about
ICR’s internal policies on what the default family size should be on a
Financial Disclosure form. Plaintiff cannot use the FDCPA as a vehicle for
enforcing the terms the Manual, which was part of an agreement to which
she is not a party, or ICR’s internal policies. In other words, ICR’s failure to
follow the rules established in those documents is not per se oppressive,
misleading, or unfair conduct.
Instead of the Manual or ICR’s training materials, the rules which
actually govern ICR’s conduct in this case come from the Code of Federal
Regulations (“CFR”). Plaintiff makes no attempt to argue otherwise in her
response or sur-reply. The only relevant CFR provision, 34 C.F.R. §
682.405(b)(1)(vi), provides that the RAL must be sent “[w]ithin 15 business
days of [the PCA’s] determination of the borrower’s loan rehabilitation
payment amount[.]” This accords with what Hunter told Plaintiff in the
November 28 telephone conversation. (Docket #48 at 8) (“Once your proof
of income is received and reviewed, a [RAL] will be sent to you within 15
days.”) (emphasis added). On the undisputed facts, ICR sent its RAL the

For purposes of this analysis, the Court assumes that the Manual Plaintiff
presents is admissible. At their deposition, ICR’s corporate representative could
not testify that Plaintiff’s version of the Manual was accurate or current, only that
it appeared to be a version of the Manual. (Docket #50-3 at 136:21-138:14).
Plaintiff’s counsel represented that the document was the Manual provided by the
DOE. Id. However, in her summary judgment submissions, Plaintiff has not laid a
foundation which supports her counsel’s representation at the deposition.
10

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day after it reviewed Plaintiff’s properly completed paperwork. Plaintiff
points to no CFR provision creating a default family size or a time frame for
ending a garnishment, so her theory on those points is a non-starter.
Even if the Court was inclined to read more generalized Section
1692d, e, and f arguments into Plaintiff's response brief, it would avail her
nothing.11 ICR attempted to help Plaintiff work through the steps towards
entry into the rehabilitation program. By this lawsuit, Plaintiff attempts to
foist her own errors—waiting months to submit the required documents,
and failing to properly complete the Financial Disclosure form—onto ICR.
The only meaningful delay attributable to ICR alone is the time between the
receipt of Plaintiff’s documents on April 25 and its discussion with
Plaintiff’s counsel about Financial Disclosure form beginning in June. Why
was the problem with the form not mentioned sooner? ICR says it could not
contact Plaintiff directly, but it was free to (and eventually did) talk to her
counsel.
In the end, though, this observation does not swing the pendulum in
Plaintiff's favor. Her brief is bereft of any analogy to a case which supports
finding a violation of Sections d, e, or f in line with her policy violation,
delay-based theory. In the absence of such authority, the Court concludes
that no reasonable jury would accept the theory. While it certainly could
have done more, nothing about ICR’s conduct rises to the level of
oppression, deception, or unfairness with respect to delaying the
suspension of the garnishment.

The Court need not do so. Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir.
1986) (the Court is not obligated “to research and construct the legal arguments
open to parties, especially when they are represented by counsel”).
11

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This leaves only one claim which stands at least partially
independent of Plaintiff’s policy violation theory. She argues that during
the January 10, 2017 telephone conversation, ICR did not adequately
explain the application of the November 28, 2016 payment or ICR’s ability
to change how the payment was credited. Plaintiff maintains that absent
these misstatements and omissions, she would have sent her rehabilitation
paperwork to ICR in March, not April.
This might raise a valid Section 1692e claim if ICR’s misstatements
or omissions were material. The Seventh Circuit holds that “a false or
misleading statement is only actionable under the FDCPA if it is material, .
. . meaning that it has the ability to influence a consumer’s decision.” Lox v.
CDA, Ltd., 689 F.3d 818, 826 (7th Cir. 2012) (quotation omitted). The
influence need not be enough to conclusively change the consumer’s
decision, but it must at least be “a factor in [their] decision-making
process[.]” Id. at 827. In an affidavit submitted with her summary judgment
response, Plaintiff claims that she would have sent her paperwork in
sooner. (Docket #46 at 2-3). However, at her deposition, Plaintiff stated the
following:
Q:
Do you recall why your paperwork wasn’t
turned in in December, January, February?
A:
In December I couldn’t talk to anybody.
Nobody was returning my calls. I never had received the
paperwork. I made multiple calls in October and November
to get the paperwork and I never received it.
...
Q:
We discussed a little bit earlier that you didn’t
turn in the paperwork in December, January, February
because you weren’t able to get in contact with ICR, correct?
Ms. Miller:

Objection. Misstates testimony.

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A:
I said that I could not – I didn’t speak with
anyone in December because they wouldn’t take my call.
That’s what I said earlier. So I could not have sent the
paperwork back because I wasn’t able to speak with anyone.
Q:
What made you finally decide to return the
paperwork to ICR?
Ms. Miller: Objection. Attorney-client
That was a conversation we had.
A:

privilege.

That was a conversation we had.

Q:
So you are not going to answer the question
based on attorney-client privilege?
A:

That’s correct.

(Docket #39-5 at 33:16-22, 51:16-52:12).
Plaintiff cannot contradict her deposition testimony by affidavit.
Castro v. DeVry Univ., Inc., 786 F.3d 559, 571-72 (7th Cir. 2015). Plaintiff’s
deposition testimony confirms that the issues stemming from the January
10 conversation were not a factor in her decision on when to send the
paperwork to ICR. Rather, the deposition establishes that the sole reason
was that she did not have the paperwork. This reason provides no support
for her current theory and, therefore, that theory must be rejected. In other
words, she cannot load the trap at her deposition—refusing to share her
explanation of her paperwork submission decision, under a claim of
privilege—and then spring it now to survive summary judgment—by
apparently waiving the privilege.
In sum, no reasonable jury could find any violations of Sections
1692d, e, or f on the theories Plaintiff presents, and so ICR is entitled to
summary judgment on the entirety of Plaintiff’s FDCPA cause of action.
4.2

WCA

Section 427.104 of the WCA addresses prohibited practices in the
collection of a consumer debt. Wis. Stat. § 427.104. Plaintiff raises two claims
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based on two of Section 427.104’s subsections. The first is Section 427.104(h),
which proscribes collection conduct “which can reasonably be expected to
threaten or harass [a] customer.” As this Court has recently noted, there is
little caselaw interpreting this section. Strohbehn v. Access Group, Inc. et al.,
No. 16-CV-985 (E.D. Wis.) (Docket #164 at 17-19). To the Court, this claim is
not appreciably different than Plaintiff’s Section 1692d claim for
harassment and/or oppression. For the same reasons discussed above,
ICR’s conduct cannot be considered harassing under Plaintiff’s theory of
the case.
The second provision Plaintiff cites is Section 427.104(j), which says
that collectors cannot “threaten to enforce a right with knowledge or reason
to know that the right does not exist[.]” This claim relies on the same policy
violation theory as the others. Plaintiff argues that “ICR knew the federally
required standards that it was to follow. . . . ICR did not have a right to
ignore the federally required standards, but it did.” (Docket #49 at 13). ICR
did not violate any of the legal standards applicable to its conduct in this
case. Plaintiff is not entitled to relief under either section of the WCA.
5.

CONCLUSION
Plaintiff’s theory of this case fails to offer viable claims for relief

under the FDCPA or WCA. ICR’s motion for summary judgment must,
therefore, be granted, and this action dismissed with prejudice. The Court
will also deny ICR’s August 23, 2017 motion for a protective order, which
ICR previously acknowledged had been rendered moot. (Motion, Docket
#36; ICR’s Reply, Docket #45 (conceding mootness)).
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to file a sur-reply
(Docket #53) be and the same is hereby GRANTED;
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IT IS FURTHER ORDERED that Defendant’s motion for a
protective order (Docket #36) be and the same is hereby DENIED as moot;
IT IS FURTHER ORDERED that Defendant’s motion for summary
judgment (Docket #40) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 21st day of November, 2017.
BY THE COURT:

____________________________
J. P. Stadtmueller
U.S. District Judge

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