IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

THONE PHAN )

) CASE NO: 12 cv 1207

Plaintiff, )

)

vs. ) MAGISTRATE JUDGE ARLANDER KEYS

)

GARTNER LAW OFFICES, INC. )

)

Defendant. )

)

MEMORANDUM OPINION AND ORDER

Thone Phan (“Ms. Phan”)alleges that Gartner Law Offices, 

Inc. (“Gartner Law”) violated the Fair Debt Collection Practices 

Act, 15 U.S.C. § 1692e and f (“FDCPA”), when it threatened to 

garnish her wages in an email dated January 9, 2012. Ms. Phan

requests that this Court enter summary judgment against Gartner 

Law for violations of the FDCPA under Federal Rule of Civil 

Procedure 56. [Dkt. #48]. In her motion, Ms. Phan seeks $1,000 

in statutory damages; $10,000 in actual damages suffered as a 

result of Defendant’s violations; and Plaintiff’s reasonable 

attorney fees and costs incurred. For the reasons stated below, 

Ms. Phan’s motion is denied.

Facts

On January 9, 2012, an associate attorney at Gartner Law 

sent the following e-mail directly to Ms. Phan:

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This e-mail serves as our final attempt to collect the debt 

owed by you to Mr. Ratliff in the total amount of 

$14,158.30 ($13,150.00 debt plus $1008.30 in costs). 

Please remit certified funds made payable to Elster Ratliff 

and Gartner Law Offices, Inc. to our office no later than 

Friday, January 13, 2012 at 5:00 p.m. or we will be forced 

to garnish your wages through Mayer Brown.

(“the E-mail”). Motion at Ex. A. Mayer Brown was Ms. Phan’s 

employer at the time. 

In her motion for summary judgment, Ms. Phan argues that 

this E-mail is a violation of the FDCPA, because “at the time 

Defendant sent the E-mail, Plaintiff was in an active Chapter 13 

Bankruptcy and was protected [from wage garnishment] by the 

Bankruptcy Stay.” Motion at ¶ 3. Gartner Law denies that 

Plaintiff was in Chapter 13 Bankruptcy at the time the E-mail

was sent in January, 2012. Response at p. 2, ¶ 3. Instead, 

Gartner Law states that, “Plaintiff filed for Chapter 13 

Bankruptcy on August 27, 2012, after Gartner [Law] filed an 

action to garnish the wages of Plaintiff, and wages were 

garnished by Plaintiff’s employer, Mayer Brown, LLP.” Id. at pp. 

2-3, ¶ 3; Id. at Ex. B.

In her motion for summary judgment, Ms. Phan lists seven 

paragraphs of “uncontroverted relevant facts.” Mot. at pp. 2-3. 

However, left out of Ms. Phan’s fact section, and found in other 

pleadings, answers to interrogatories, and admissions in this 

case, are relevant facts to this motion, including the history 

behind the parties mentioned in the above E-Mail: Ms. Phan, Mr. 

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Ratliff, and Gartner Law. Beginning in 2004, Ms. Phan borrowed 

money from Elster Ratliff. When she was unable to repay Mr. 

Ratliff and other creditors, Ms. Phan sought bankruptcy 

protection in 2008. Mot. at Ex. B. According to the Bankruptcy 

Court’s docket provided to this Court, Ms. Phan originally filed 

a voluntary petition for Chapter 13 Bankruptcy on August 23, 

2008. Id. However, she filed a voluntary conversion from Chapter 

13 to Chapter 7 on May 16, 2009. Id. 

Ms. Phan also neglects to mention in her motion for summary 

judgment that she did not identify Mr. Ratliff as a creditor in 

her bankruptcy filings. Nonetheless, Mr. Ratliff discovered the 

bankruptcy proceedings and filed an adversary complaint, arguing 

that Ms. Phan’s debt to him was not dischargeable, because it 

was obtained by false pretenses, false representations, or 

actual fraud. Answer to the Complaint, p. 6; [dkt. #22].

On November 23, 2011, the bankruptcy court found that Ms. 

Phan borrowed from Mr. Ratliff never intending to repay him, and 

therefore, procured the debt by “false pretenses, false 

representation, or actual fraud.” Response at Ex. C, p. 2. In 

that ruling, the bankruptcy court concluded that Ms. Phan’s debt 

to Mr. Ratliff was not dischargeable, and stated that judgment

would be entered against her and in favor of Mr. Ratliff for 

“the entire amount owed by the debtor [Ms. Phan] to the 

plaintiff [Mr. Ratliff].” Id at p. 2 and p. 5; Mot. at Ex. E, 

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¶¶1-2. Ms. Phan was represented by an attorney at that time. 

Response at p. 2, ¶2. On December 13, 2011, the Bankruptcy Court 

entered an order granting Mr. Ratliff costs in the amount of 

$1,008. 30. Response at Ex. D. 

Additionally, Ms. Phan failed to mention in her motion that 

Gartner Law and her bankruptcy counsel “were corresponding from 

November 2011 through January 2012 regarding payment and payment 

plans related to the debt.” Answer, Affirmative Defense D, p. 6. 

“Gartner [Law] had several conversations with Plaintiff’s 

attorney in attempt to collect the amount owed, but Plaintiff 

made no payments on the Judgment. When Defendant was informed by 

counsel for Plaintiff that he no longer represented Plaintiff, 

Gartner [Law] sent the E-mail to Plaintiff.” Id. Shortly after 

the E-mail was sent, Ms. Phan filed the complaint in this action 

on February 21, 2012. [dkt. #1].

In April, 2012, after Ms. Phan attempted to argue that 

there was no judgment entered against her in the amount 

specified in the E-mail, the Bankruptcy Court clarified its 

November 2011 order, again entering judgment against Ms. Phan

and in favor of Mr. Ratliff in the amount of $13,150.00. 

Response at Ex. F, p. 7. When added to the December 13, 2011, 

order granting costs in the amount of $1,008.30, which was left 

undisturbed in the motion to clarify ruling, the total amount 

owed by Ms. Phan was $14,158.30. Response at Ex. D and Ex. F.

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On July 16, 2012, Gartner Law issued a Wage Deduction 

Summons, Interrogatories, Notice and Affidavit to Ms. Phan’s 

employer, Mayer Brown LLP. Response at Ex. F. On July 19, 2012, 

Mayer Brown LLP was served with said summons and began 

withholding a portion of Ms. Phan’s wages. Id. at Ex. G. Ms. 

Phan then filed for Chapter 13 Bankruptcy on August 27, 2012. 

Response at Ex. B. The collection actions against Ms. Phan were 

ceased by Gartner Law in the Circuit Court of Cook County upon 

the Chapter 13 bankruptcy filing. Id. at Ex. H.

Standard and Law

Summary judgment is appropriate when “the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party 

is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 

56(c). At this stage, the Court does not weigh evidence or 

determine the truth of the matters asserted. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 249 (1986). The Court views all 

evidence and draws all inferences in favor of the non-moving 

party, and may enter summary judgment only if the record as a 

whole establishes that no reasonable jury could find for the 

non-moving party. Michas v. Health Cost Controls of Ill., Inc.,

209 F.3d 687, 692 (7th Cir. 2000). 

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In order to successfully oppose a motion for summary 

judgment, the nonmoving party must do more than raise a 

metaphysical doubt as to the material facts. Matsushita Electric 

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586. (1986). 

Rather, they must come forward with specific facts showing that 

there is a genuine issue for trial. Id. at 587. The nonmoving 

party must offer more than a mere scintilla of evidence to 

survive summary judgment, and conclusory allegations are 

insufficient to defeat a motion for summary judgment. Keri v. 

Bd. of Trustees of Purdue Univ., 458 F. 3d 620, 628 (7th Cir. 

2006).

Congress enacted the FDCPA to curb “abusive, deceptive, and 

unfair debt collection practices.” 15 U.S.C. §1692. The FDCPA 

prohibits making false or misleading representations during the 

collection, or attempted collection, of a debt. 15 U.S.C. 

§1692e. Specifically, the FDCPA prohibits a debt collector from 

threatening to take action that could not be legally taken. 15 

U.S.C. 1692e(5). 

Discussion

Ms. Phan argues that summary judgment is appropriate,

because Gartner Law, a debt collector under the FDCPA, 

threatened to take action against her that could not be legally 

taken while collecting a “consumer debt.” Mot. at p. 1.

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A. Violation of FDCPA

In her motion for summary judgment, Ms. Phan argues that 

Gartner Law violated the FDCPA by threatening to garnish her

wages unless the debt was paid in full. Ms. Phan’s original 

position was that collecting the debt in this way could not 

legally be taken against her, because “at the time Defendant 

sent the E-mail, Plaintiff was in an active Chapter 13 

Bankruptcy and was protected by the Bankruptcy Stay.” Mot. at 

¶3. Ms. Phan even stated in her sworn affidavit attached to the 

motion that “when [she] received this E-mail, [she] was in 

active Chapter 13 Bankruptcy.” Mot. at Ex. F.

The FDCPA is a strict liability statute that prohibits a 

debt collector from threatening to take any action that could 

not be legally taken. The Seventh Circuit Court of Appeals has 

held that demands for payment of debts covered by bankruptcy 

discharge are false, and violations of the FDCPA. See Ross v. 

RJM Acquisitions Funding, LLC, 480 F.3d 493, 795 (7th Cir. 

2007). However, in its response brief, Gartner Law states, and 

provides evidence, that Ms. Phan was not in active Chapter 13 

Bankruptcy at the time of the E-mail, but instead was in 

bankruptcy proceedings with Gartner Law’s client, Mr. Ratliff, 

in which the Bankruptcy Court had found that the debt Ms. Phan 

owed Mr. Ratliff was not dischargeable. Response at Ex. C. In 

addition, Mr. Ratliff had a judgment against Ms. Phan. Id. And, 

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in fact, the action that Ms. Phan claims that Gartner Law could 

not legally take against her, garnishing her wages, was taken as

Gartner Law proceeded with garnishing Ms. Phan’s wages in July, 

2012 and was successful in doing so. Id. at Ex. G.

In her reply brief, Ms. Phan changes her argument from

Gartner Law threatened an action that could not legally be taken 

(garnishing her wages) against her, to arguing that Gartner Law 

could not legally start garnishment proceedings for the amount 

stated in the E-mail ($14,158.30), because it did not have a

judgment against her in that amount. Reply at p. 1. Ms. Phan 

states that, “At the time [Gartner Law] sent this E-mail, the 

only money judgment against [Ms. Phan] was for $1008.30.” Id.

Ms. Phan argues that, prior to Gartner Law beginning garnishment 

proceedings for the amount of $14,158.30, they needed to amend 

the judgment against her and in favor of Mr. Ratliff in April 

2012, and therefore, Gartner Law threatened an action that could 

not legally be taken in January, 2012. Reply at p. 2. 

However, the Court has read the transcript from the 

November 23, 2011, hearing in Bankruptcy Court (provided by 

Gartner Law, not Ms. Phan), in which Judge Wedoff stated:

Section 523(a)(2)(A) renders nondischargeable money or an 

extension, renewal or refinancing of credit to the extent 

obtained by false pretenses, a false representation or 

actual fraud. And I find here that the exception applies to 

the entire amount owed by the debtor [Ms. Phan] to the 

plaintiff [Mr. Ratliff].

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Response at Ex. C, p. 2. Judge Wedoff also stated, “Judgment 

will be entered finding the entire debt owing from the debtor to 

the plaintiff not dischargeable.” Id. at p. 5. This amount was 

known to be $13,150.00. The Bankruptcy Court went on for four 

pages explaining its basis for the finding. Id. As stated above, 

the Bankruptcy Court then found in December, 2011, that Ms. Phan

also owed Mr. Ratliff $1,008.30 in costs. 

After the E-mail was sent, Ms. Phan attempted to argue that 

the Bankruptcy Court had not entered judgments against her 

adding up to the amount of $14,158.30. However, when Gartner Law 

filed a motion to clarify the judgment against Ms. Phan, the 

Bankruptcy Court found for Mr. Ratliff and entered an order 

clarifying the judgment against Ms. Phan in the amount of 

$13,150.00. Response at Ex. F, p. 7. Based on Ms. Phan’s 

changing argument and the evidence in this case, the Court finds 

an issue of material fact for trial as to whether Gartner Law 

could have legally taken the threatened action of wage 

garnishment against Ms. Phan prior to the April 2012 Order 

clarifying the judgment.

In her reply brief, Ms. Phan also argues that the E-mail 

implies that Gartner Law could begin garnishing Ms. Phan’s wages 

on January 9, 2012, not start the wage garnishment process, when 

in fact they could not legally take that action, because they 

did not have a wage garnishment order yet. Reply at p. 1. This 

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argument also raises an issue of fact. At this stage, the Court 

will not weigh the evidence to determine the meaning of the Email. The Court draws all inferences in favor of the non-moving 

party, Gartner Law, and cannot find that a reasonable jury may 

not find for Gartner Law on this issue. Therefore, Ms. Phan’s 

motion for summary judgment is denied.

B. Motion for Sanctions

In response to the motion for summary judgment, Gartner Law

moves the Court to deny the motion for summary judgment, and in 

addition, to enter an order of sanctions against Ms. Phan and 

her counsel for filing a false affidavit and motion in bad 

faith, pursuant to Federal Rule of Civil Procedure 56(h). 

Gartner Law argues that Rule 56(h) applies, because Plaintiff 

was not in an active bankruptcy at the time the alleged 

violation occurred, as presented in the motion and stated in the 

attached affidavit. Gartner Law argues that there was no rule or 

statute, Bankruptcy or otherwise, that would have prevented 

Gartner Law from taking steps to collect the judgments entered 

on November 23, 2011 and December 13, 2011 from Ms. Phan.

Response at p. 5.

Rule 56(h) states:

If satisfied that an affidavit or declaration under this 

rule is submitted in bad faith or solely for delay, the 

court--after notice and a reasonable time to respond--may 

order the submitting party to pay the other party the 

reasonable expenses, including attorney's fees, it incurred 

10
as a result. An offending party or attorney may also be 

held in contempt or subjected to other appropriate 

sanctions.

The Court does find Ms. Phan’s motion for summary judgment to be

misleading. And after the evidence in this case is revealed by 

exhibits, pleadings and Gartner Law’s response brief, Ms. Phan’s

motion is weak. However, the Court does not find the motion to 

be at the level of bad faith or solely for delay. The Court will 

not sanction Ms. Phan or her attorney at this time, despite the 

misstatement in Ms. Phan’s affidavit that she was in active 

Chapter 13 Bankruptcy at the time the E-mail was sent, because 

Ms. Phan was involved in multiple Bankruptcy cases over the 

years and, even if her case was closed at the time the E-mail 

was sent, she originally filed for Chapter 13 Bankruptcy though 

it was converted to Chapter 7 years earlier. Mot. at Ex. F, ¶2.

Even if that case was closed prior to the date the E-mail was 

sent, it was arguably active around that date and was reopened.

Mot. at Ex. 2. As the receiver of the E-mail, though Ms. Phan

seems to be well-versed in the loopholes of Bankruptcy law, she

is not an attorney. Therefore, the Court will not sanction her. 

The Court is concerned that Ms. Phan’s attorney filed the 

misleading affidavit as an exhibit to the motion for summary 

judgment, and did not actually address the misstatement in the 

reply brief. At this time, Gartner Law’s motion for sanctions 

against Ms. Phan’s counsel is denied without prejudice. However, 

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moving forward in this case, the Court cautions Plaintiff’s 

counsel to be straight forward with the court and realistic 

about his clients’ projected outcome in this case.

The Judge in the Bankruptcy Court made note that Ms. Phan’s 

“failure to list the debtor in the bankruptcy that was filed is 

one that I take to be confirmation of the lack of credibility in 

the debtor’s testimony.” Response at Ex. C, pp. 4-5. This 

comment resonates with this Court, as it is concerned as to why

the facts in this case were not properly presented by Ms. Phan

in the motion for summary judgment. Ms. Phan has filed a jury 

demand in this case, and since a question of fact for the jury 

exists here, she should consider her credibility, and how she 

will present to a jury of her peers, in deciding how to proceed 

in this case.

Conclusion

Ms. Phan’s motion for summary judgment is denied. A status 

hearing is set for April 11, 2014 at 9:00 a.m. At the status 

hearing, Plaintiff’s counsel should be prepared to inform the 

Court how or if Ms. Phan intends to proceed with this case.

Date: April 2, 2014 E N T E R E D:

 ____________________________

 MAGISTRATE JUDGE ARLANDER KEYS

 UNITED STATES DISTRICT COURT

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