IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GREGORY LEEB,

Plaintiff,

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v. ) No. 12 C 913

NATIONWIDE CREDIT

CORPORATION,

Defendant.

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MEMORANDUM OPINION AND ORDER

In the only claim remaining in this case, Gregory Leeb

(“Leeb”) alleges that Nationwide Credit Corporation

(“Nationwide”) attempted to collect a disputed debt in

violation of the Fair Debt Collection Practices Act. See 15

U.S.C. § 1692g(b).

Leeb has moved for partial summary judgment on

liability. Nationwide has filed a cross motion for summary

judgment on liability and its statutory defense that

unlawful debt collection activities it engaged in were bona

fide errors. I grant Leeb’s motion and deny Nationwide’s

cross motion for the reasons stated below.

I.

On May 21, 2011, Leeb incurred a debt to Infinity

Healthcare Physicians (“Infinity”) for emergency room care

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he received at St. Francis Hospital in Evanston, Illinois. 

Pl.’s Statement of Material Facts (“PSOF”) at ¶ 3. Leeb

thought Cigna, his medical insurer, would pay for his

treatment. Id. at ¶ 4. On December 28, 2011, Leeb received

a phone call from Nationwide regarding the medical debt. 

Id. at ¶ 5. Leeb told Nationwide’s representative that he

was disputing the debt because Cigna should have paid any

balance due. Id. Leeb also said he would submit documents

showing that he did not owe the debt. Def.’s Statement of

Material Facts (“DSOF”) at ¶ 21. After this call,

Nationwide entered a code on Leeb’s account that prevented

any further calls being placed to him. Id. at ¶¶ 23, 25.

Leeb sent a letter to Nationwide on December 28, 2011,

confirming his conversation with a Nationwide employee

earlier that day. PSOF at ¶ 7. After referencing his rights

under the Fair Debt Collection Practices Act and disputing

the debt in writing, Leeb’s explained the substance of his

communications with Cigna. Id. Cigna had received a claim

for Leeb’s medical treatment, but requested additional

information from Infinity. Id. When Infinity did not

furnish the requested information, Cigna closed the claim. 

Id. Leeb enclosed a copy of Cigna’s explanation of benefits

statement and gave Nationwide permission to speak with Cigna

regarding the claim. Id. Nationwide received Leeb’s letter

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on January 3, 2012 and marked his account as disputed. Id.

at ¶ 8; DSOF at ¶ 26.

After mailing his December 28 letter, Leeb received a

“dunning” or collection letter from Nationwide dated

December 26, 2011. PSOF at ¶ 9. Nationwide’s letter

explained that the medical debt for $327.00 had been sold to

Pendrick Capital Partners, LLC (“Pendrick”) and turned over

to Nationwide for collection. Pl.’s Ex. 10. If Leeb did

not pay the debt within forty five days, Nationwide wrote

that it would report his account to three credit reporting

agencies. Id. The penultimate paragraph of Nationwide’s

letter stated: “If you notify this office in writing within

30 days after receiving this notice that you dispute the

validity of this debt of any portion thereof, this office

will obtain verification of the debt or obtain a copy of a

judgment and mail you a copy of such judgment or

verification.” Id.

On December 30, 2011, Leeb faxed and mailed another

letter to Nationwide in which he once again disputed the

medical debt. PSOF at ¶ 10. After noting the “threatening

tone” of Nationwide’s December 26 dunning letter, Leeb

wrote, 

I am now DEMANDING that your office send me a

letter stating that the above noted account number

is now in dispute, and that NO negative entries

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will be placed on ANY of my credit reports while

this issue is indeed in dispute, as per my letter

to your office earlier this week. I expect to

receive this letter no later than Friday, January

6, 2012.

Pl.’s Ex. 6 (emphasis in original). Nationwide stamped

Leeb’s letter as “received” on January 5, 2012. PSOF at ¶

10. 

On December 31, 2011, Leeb copied Nationwide on his

letter to Infinity in which he enclosed information showing

that he did not owe the medical debt. DSOF at ¶ 28. 

Infinity called Leeb on January 2 or 3, 2012 and explained

that they were taking his debt out of collection. Id. at ¶

34. Infinity told Leeb it would submit additional

information to Cigna to facilitate payment of the claim for

his emergency room care. Id.

On January 4, 2012, Leeb sent a letter instructing

Nationwide to cease all communications regarding his account

upon receipt of the letter. Pl.’s Ex. 7. Leeb explained

that Infinity had advised him that it was going to send

Pendrick a notice to stop collection activities. Id. Leeb

also enclosed a medical claim report from Cigna reflecting

payments to Infinity at the contracted rate, leaving a zero

balance. Id. Nationwide received this letter via fax on

January 4, 2012 at 12:45 pm. Id. at ¶ 14.

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Despite receiving multiple dispute letters from Leeb,

Nationwide sent him a form letter on January 5, 2012

reflecting an account balance of $327.00 and instructing him

to “detach the upper portion and return with payment.” 

Pl.’s Ex. 9. The body of Nationwide’s letter acknowledged

receipt of Leeb’s dispute letter, but requested additional

information and supporting documentation. Id. Directly

below the signature line, Nationwide wrote, “This

communication is from a debt collector attempting to collect

a debt and any information obtained will be used for that

purpose.” Id. Nationwide admits that one its employees

“requested” that the January 5 letter be sent to Leeb, but

maintains that she did not intend to violate the law. 

Def.’s Ex. E at ¶¶ 9-10.

II.

The Fair Debt Collection Practices Act (“FDCPA”), 15

U.S.C. §§ 1692 et seq., requires debt collectors to provide

consumers with a written notice no later than five days

after initiating communication about a debt. Id. at §

1692g(a). This notice must include: 

a statement that if the consumer notifies the debt

collector in writing within [a] thirty-day period

that the debt, or any portion thereof, is

disputed, the debt collector will obtain

verification of the debt or a copy of a judgment

against the consumer and a copy of such

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verification or judgment will be mailed to the

consumer by the debt collector. 

Id. at § 1692g(a)(4).

When a consumer disputes a debt in writing, “the debt

collector shall cease collection of the debt, or any

disputed portion thereof, until the debt collector obtains

verification of the debt or a copy of a judgment...and a

copy of such verification or judgment...is mailed to the

consumer by the debt collector.” 15 U.S.C. § 1692g(b).

Leeb argues that summary judgment is appropriate

because Nationwide’s letter dated January 5, 2012 was an

unlawful attempt to collect a disputed debt. Nationwide has

filed a cross motion for summary judgment on two grounds:

(1) no reasonable jury could find that Leeb, “a serial

litigant well versed in his consumer rights,” understood the

January 5 letter to be requesting payment of a debt he

actually owed and (2) Nationwide’s policies show that the

letter was a bona fide error. Dkt. No. 95 at 2.

“With cross summary judgment motions, [a court must]

construe all facts and inferences therefrom in favor of the

party against whom the motion under consideration is made.” 

In re United Airlines, Inc., 453 F.3d 463, 468 (7th Cir.

2006) (internal quotation omitted). Summary judgment is

appropriate “if the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P 56(a). 

A.

Nationwide admits that it received two letters from

Leeb disputing his purported medical debt within the thirty

day timeframe specified by statute. See 15 U.S.C. §

1692g(a). “Section 1692g(b)...gives debt collectors two

options when they receive requests for validation. They may

provide the requested validations and continue their debt

collecting activities, or they may cease all collection

activities.” Jang v. A.M. Miller and Assoc., 122 F.3d 480,

483 (7th Cir. 1997). Here, Nationwide chose a third course

that the statute prohibits. Although Leeb requested written

confirmation that Nationwide had received his dispute,

Nationwide erred in sending a letter that demanded payment

and plainly identified itself as a communication “from a

debt collector attempting to collect a debt.” Pl.’s Ex. 9. 

 This letter is a facial violation of Section 1692g(b).

Nationwide’s focus on Leeb’s state of mind when he

received the January 5 letter is misplaced. Leeb has not

asserted the type of FDCPA claim that implicates a

consumer’s state of mind. See e.g., Lox v. CDA, Ltd., 689

F.3d 818, 826 (7th Cir. 2012) (applying “unsophisticated

consumer” test to claim under 15 U.S.C. § 1692e that debt

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collector made “false, deceptive, or misleading”

representations); Zemeckis v. Global Credit & Collection

Corp., 679 F.3d 632, 635-37 (7th Cir. 2012) (applying

“unsophisticated consumer” standard to claim under 15 U.S.C.

§ 1692g(b) that dunning letter contained language that

“overshadowed” or was “inconsistent with” statutorilyrequired notice of consumer’s right to dispute the debt). 

Nor does Leeb’s claim turn on whether Nationwide’s letter

influenced him in any particular way. Cf. Muha v. Encore

Receivable Mgmt., Inc., 558 F.3d 623, 627 (7th Cir. 2009)

(“If the average unsophisticated consumer would not be

influenced by a statement rightly or wrongly claimed to be

literally false, the case should end right there.”). 

A consumer’s state of mind is relevant to deciding

whether he or she was confused, deceived or mislead, but is

not relevant to whether a particular communication attempts

to collect a debt. See Ruth v. Triumph Partnerships, 577

F.3d 790, 798 (7th Cir. 2009) (holding that whether a

communication was sent “in connection with” an attempt to

collect a debt under 15 U.S.C. § 1692e “is a question of

objective fact” and “need not be established by extrinsic

evidence of what the unsophisticated consumer might think”). 

Here, any reasonable fact finder would conclude that

Nationwide attempted to collect a disputed debt in its

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January 5 letter to Leeb. “An express demand for payment,

regardless of who initiated the contact, is a classic

attempt to collect a debt.” Luxenburg v. Equifax Credit

Information Servs., No. 03 C 5440, 2005 WL 78947, at *3

(N.D. Ill. Jan. 12, 2005).1 

I conclude that Nationwide violated Section 1692(g) by

sending a letter to Leeb that expressly demanded payment of

a disputed debt before providing him with a statutorilyrequired verification. 

B.

Nationwide attempts to avoid liability by arguing that

the January 5 letter was a “bona fide error” under the

relevant statutory defense:

A debt collector may not be held liable in any

action brought under this subchapter if the debt

collector shows by a preponderance of evidence

that the violation was not intentional and

resulted from a bona fide error notwithstanding

the maintenance of procedures reasonably adapted

to avoid any such error.

15 U.S.C. § 1692k(c). 

1

 Nationwide attempts to analogize this case to Baily v.

Security National Serving Corp., No. 06-CV-15777-DT, 2007 WL

1648885 (E.D. Mich.), where the court held that two

challenged letters “were, on their face, in the nature of a

customer service response, rather than a debt collection

demand.” Id. at *4. Bailey is readily distinguishable

because neither letter in that case made an express demand

for payment. Id.

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The Supreme Court has held that the bona fide

error defense does not excuse mistakes of law--i.e.,

“violations resulting from a debt collector's mistaken

interpretation of the legal requirements of the FDCPA.” 

Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich

LPA, 559 U.S. 573, 576 (2010). In other words, “the

bona fide error defense under Section 1692k(c) only

applies to procedural or clerical errors.” Bassett v.

I.C. Sys., Inc., 715 F.Supp.2d 803, 813 (N.D. Ill.

2010) (citing Jerman, 559 U.S. at 589-90).2

 

Nationwide has submitted an affidavit signed by the

Collection Support Representative (“CSR”) who sent the

January 5 letter to Leeb. The CSR declares: “In an effort

to follow [Leeb’s] demand that an acknowledgment of the

dispute be made by January 6, 2012, I requested that Letter

No. 89 be sent to [him].” Dkt. No. 96-5 at ¶ 9. “To the

extent any of the foregoing is held to be in violation of

the Fair Debt Collection Practices Act (“FDCPA”), I did not

2 Nationwide’s reliance on Durthaler v. Accounts Receivable

Management, Inc., 854 F.Supp.2d 485 (S.D. Ohio 2012), is

misplaced because the court applied the wrong legal standard

in that case: “The bona fide error defense applies to

mistakes of law as well as to clerical errors.” Id. at 493

(citing Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich

LPA, 538 F.3d 469, 476 (6th Cir. 2008), rev’d, 559 U.S. 573

(2010))

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intend to violate the FDCPA in sending Letter No. 89.” Id.

at ¶ 10.

Although submitted in support of Nationwide’s bona fide

error defense, the CSR’s affidavit shows why the defense

does not apply in this case. The CSR admits that she

consciously decided to send Leeb a form letter that

contained an express demand for payment. Whether she

intended to violate the law is beside the point because the

bona fide error defense does not confine liability to

willful violations of the statute. Jerman, 559 U.S. at 584. 

The adequacy of Nationwide’s policies is also irrelevant

because the CSR’s affidavit establishes that Leeb did not

receive the January 5 letter because of a clerical or

procedural error. 

Nationwide is correct that it had no legal obligation

under Section 1692g(b) to provide Leeb with written

confirmation of his dispute. Its only obligation was to

cease collection efforts until it provided Leeb with the

verification he had requested. Despite these limited

obligations, Nationwide intentionally sent Leeb a letter

demanding payment of his purported debt. Therefore,

Nationwide cannot escape liability under the bona fide error

defense, which is reserved for clerical errors. 

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III.

Leeb’s motion for summary judgment is GRANTED and

Nationwide’s cross motion for summary judgment is DENIED for

the reasons stated above. 

 

 ENTER ORDER:

_____________________________

 Elaine E. Bucklo

United States District Judge

 

Dated: November 21, 2013

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