### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17

- 2532
B ETTY H OLCOMB , Plaintiff

- Appell ee ,

v.

F REEDMAN A NSELMO L INDBERG , LLC , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 1129

— John Z. Lee
, Judge

.

____________________
A RGUED A PRIL 4, 2018

— D ECIDED A UGUST 21, 2018

____________________

Before W OOD , Chief Judge , and B AUER and S YKES , Circuit Judges

. S YKES , Circuit Judge

. When Betty Holcomb ran up a credit

- card bill and did not pay, t he creditor hired the law firm of Freedman Anselmo Lindberg, LLC (“Freedman”), to collect it. Freedman sued Holcomb on the creditor’s behalf in Illinois state court

. Holcomb initially appeared pro se but later retained Attorney Andrew Finko to represent her. When Freedman moved for default judgment, however,2 No. 17

- 2532

Finko had not yet filed a written appearance . S o Freedman served the motion on both Holcomb and Finko.

T his lawsuit followed. Holcomb alleg es that Freedman

v iolat ed § 1692c(a)(2) of the Fair Debt Collection Practices Act (“FDCPA” or “the Act” ), which pro hibits a debt collector from directly contacting a debtor who is represented by counsel absent “express permission” from “a court of competent jurisdiction

. ” 15 U.S.C. § 1692c(a)(2). On cross

motions for summary judgment , Freedman argued that an Illinois court rule gave it “express permission” to serv e the default motion on Holcomb directly. Rule 11 of the Illinois Supreme Court Rules requires service of court papers on a party’s “attorney of record,” if there is one, but “[o]therwise service shal l b e made upon the party.” I LL

. S UP

. C T

. R. 11(a)

. Because Finko had not yet file d a written appearance , Freedman argued that he was not yet Holcomb’s “ attorney of record ” for purposes of Rule 11 . That, in turn, required service on Holcomb directly

. The district judge rejected this argument as “hyper

- techn ical” and entered judgment for Holcomb.

We reverse . Illinois precedent is clear that an attorney become s a party’s “ attorney of record ” for Rule 11 purposes only by filing a written appearance or other pleading with the court. Fink o had done neither, so R ule 11 not only permitted, but required , Freedman to serve the default motion on Holcomb directly. I. Background The facts are not in dispute. After Betty Holcomb defaulted on her credit

- card account, Portfolio Recovery Associates purchased her debt and hired Freedman AnselmoNo. 17

- 2532 3

Lindberg, LLC, to collect it. On Portfolio Recovery’s behalf, Freedman filed a complaint against Holcomb in Cook County Circuit C ourt on August 4, 2014. Holcomb filed a pro se appearance, but soon after retained A ttor ney Andrew Finko from the Debtors Legal Clinic, a nonprofit legal services organization that provides legal advice to low

- income individuals

. On September 16 Finko sent Freedman a letter notifying the law firm that the Debtors Legal Clinic was representing Holcomb. But he did not file a written appearance with the court.
Finko later appeared for Holcomb at two h earings on November 12, 2014 , and January 6, 2015

. Both times the court entered a form “ t rial c all o rder , ” checking a box indicating that “defendant’s counsel” was “present before the court.” Neither order i dentified Finko or the Debtors Legal C linic by name. On January 8 , 2015, Freedman moved for defaul t judgment . Because Finko ha d not yet filed a written appearance or other pleading with the court, Freedman mailed notice of the motion to both Holcomb and Finko . That precipitat ed this lawsuit accusing Freedman of violat ing § 1692c(a)(2) of the FDCPA

. That s ection of the Act p rohibits a debt collector from communicating with a consumer about the collection of a debt when it knows the consumer is represented by counsel. But the re are several exceptions , one of which is implicated here: the statute prohibits d irect contact with a represented debtor “[w]ithout ... the express permission of a court of competent jurisd iction.” § 1692c(a)( 2). Stated positively, the FDCPA permits direct contact with a represented debtor if a court of comp etent jurisdiction authorizes the
contact

.4 No. 17

- 2532

The case proceeded to cross

- motions for summary judgment , and Freedman invoked this safe harbor. The law firm pointed to Rule 11 of the Illinois Supreme Court Rule s, which governs service of court papers subsequent to the summons and complaint

. The rule requires service on the

“ attorney of record, ” if there is one , but “ [ o ] th erwise ” requires service on the party directly. Freedman argued that because Finko had not yet filed a written appearance at the time of the default motion, he was not Holcomb’s “attorneyof record” within the meaning of Rule 11. On this understanding of t he rule, Freedman had no choice but to se nd the default motion to Holcomb

. In other words , R ule 11 gave Freedman “ express permission ” to se rve Holcomb directly

. The judge rejected this reading of Rule 11 , calling it “hyper

- technical

. ” He conclud ed instead that Illinois trial judges have discretion to recognize a lawyer as a party’s attorney of record in the absence of a written appearance , and indeed t he state court had done so b y checking the box on the call orders showing that “defendant’s counsel” was “p resent before the court” at the November 12 and January 6 hearings. On this reading of Illinois law , the judge held that Freedman violated § 1692c(a)(2) and entered judgment for Holcomb.
II. Discussion
The case was resolved on cross

- motions for summary jud gment, so our review is de novo and we constru e the record in the light most favorable to the losing party

— here , Freedman

. Kemp v. Liebel , 877 F.3d 346, 350 (7th Cir. 2017). Holcomb ’s claim rests on § 1692c(a)(2) of the FDCPA , which provides in relevant pa rt: “ Without ... the express permission of a court of competent jurisdiction, a debt collectorNo. 17

- 2532 5

may not communicate with a consumer in connection with the collection of any debt ... if the debt collector knows the consumer is represented by an attor ney with res pect to such debt

... . ” 15 U.S.C. § 1692c(a) , (a)(2)

. As the opening phrase of the statute makes clear, a debt collec tor may communicate with a represented debtor if a court of competent jurisdiction has give n “express permission .”
Freedman reprises its argument t hat Rule 11 of the Illinois Supreme Court Rules gave it “express ” judicial

“ permission” to serve the default motion directly on Holcomb. As we’ve noted, the rule sets forth the proper manner of serving court documents subsequent to the summons an d comp laint. It provides : “ If a party is represented by an attorney of record, service shall be made upon the attorney. Otherwise service shall be made upon the party. ” I LL

. S UP

. C T

. R. 11(a) (emphasis added)

. I n Thomas v. Law Firm of Simpson & Cybak , 392 F.3d 914, 920 (7th Cir. 2004), we suggested in dicta that “[c]ourt rules permitting service could be interpreted as granting ... express permission” under § 1692c(a). To day we make that holding explicit

. Everyone agrees that the Illinois circuit court s are “courts of competent jurisdiction.” And Holcomb wisely doesn’t argue that a state

- court procedural rule can never constitute “express permission” under § 1692c(a)(2). A court rule expressly requir ing a certain action obviously permits that action , so a rule requiring service directly on a party expressly permit s such service.
So did Rule 11 of the Illinois Supreme Court Rules actually require Freedman to serve Holcomb directly ? That de-6 No. 17

- 2532

pends on whether Finko was her “attorney of record” when Freedman f iled the default motion. Freedman maintains that he was not because he had yet to file a written appearance or other pleading with the court

. Holcomb counters that Finko became the attorney of record when he appeared for her at two hearings and the state court issued orders indicating that counsel for the defendant was present

. Holcomb ’s argument thus proposes a kind of slidin g

- scale approach in which status as an attorney of record for Rule 11 purposes depends on the lawyer’s degree of part icipation in the case.That approach cannot be reconciled with Illinois precedent, which adopts a bright

- line rule: a lawyer can become an attorney of record within the meaning of Rule 11 only by filing a written appearance or other pleading with the cour t

. Jayko v. Fraczek , 966 N.E.2d 1121, 1135 (Ill. App. Ct. 2012) ( “The clear la nguage of [Rule 11(a)] and cases [that] apply it ... indicate that one becomes an attorney ‘of record’ in a case by filing an appearance or other pleading with the court.” ). A lawy er does not become an attorney of record simply by represent ing a party. Id.
Illinois courts have consistently applied this rule. For example, i n J

. P

. Morgan Mortgage Acquisition Corp. v. Straus , 980 N.E.2d 702, 707

– 08 (Ill. App. Ct. 2012), the Illinois A ppellate C ourt held that Rule 11 require d the plaintiff to serve the defendant instead of the defendant’s lawyer because he was not the attorney of record. The plaintiff was aware that the lawyer was representing the defendant but that didn’t
matter. He wa s not the attorney of record under Rule 11 because he had not properly filed a written appearance with the court.No. 17

- 2532 7

Another example is Windm on v. Banks , 335 N.E.2d 116 (Ill. App. Ct. 1975) . There a lawyer represented a plaintiff at her deposition and gave o pposing counsel a copy of a notice of appearance with the assurance that he would file it. Id. at 118. But he never did file the notice of appearance , and he later maintained that he did not agree to represent the plaintiff in the matter. Id. T he court held that he was not the attorney of record under Rule 11

. Id. at 120.
Additional evidence of this bright

- line approach can be found in Firkus v. Firkus , 558 N.E.2d 554 (Ill. App. Ct. 1990). That case holds that after filing a written appearance, a lawyer remains the attorney of record within the meaning of Rule 11 until he formally withdraws his appearance

. Id . at 558. As these cases show, a lawyer is deemed an a ttorney of record fo r Rule 11 purposes only upon the filin g of a written appearance or other pl eading with the court . Representing a party in litigation or even notifying opposing counsel of an intent to file a written appearance is not enough. To acquire the status as a ttorney of record for purposes of Rule 11 requires a writte n appearance or other pleading filed in
court

. Period.
So Finko did not become Holcomb’s attorney of record simply by appearing in court on her behalf or by notifying Freedman that he was representing her. Nor did he become attorney of record when the state court noted i n the November 12 and January 6 call orders that “defendant’s attorney ” was “ present in court

. ”
Holcombs insist s that Illinois trial court s have the discretion to recognize a lawyer as the attorney of record without a8 No. 17

- 2532

written appearance or pleading . But the ca s es she cites in support of this position all dealt with circumstances outside the Rule 11 context

. In Tobias v. King , 406 N.E.2d 101 , 102 (Ill. App. Ct. 1980), the Illinois A ppellate C ourt considered whether a law firm could petition for attorney’s fees despite its failure to file a written appearance. The court held that it could because the trial court had “properly recognized [it] as the attorney of record. ” Id. at 104. In People v. Buster , 222 N.E.2d 31 , 32

– 33 (Ill. App. Ct. 1966), an attorney representing a criminal defendant failed to appear on the trial date , and the court found him guilty of criminal contempt. The lawyer a rgued that he had n o obligation to appear because he never filed a written appearance and was therefore not the attorney of record. Id. at 34. The Illinois Appellate C ourt rejected th is attempt to evade his professional duties to his client and the court , reasoning that the lawyer’s “course of conduct ... [could] b e equated to his filing an appearance on behalf of the defendant” for purposes of establishing his duty to appear at trial. Id. at 34

– 35.
Tobias establishes only that a lawyer can obtain an award of fees without having fil ed a written appearance

. Buster stands for the unremarkable proposition that an attorney’s failure to file a written appearance does not absolve him of duties he otherwise owe s to his client and the court. Neither

case undermine s the clear rule

— established in cases like Jayko , Straus , an d Windmon , and confirmed by implication in Firkus

— that filing a written appearance or other pleading in
court is a necessary prerequisite for status as attorney of record for purposes of the service regime set forth in Rule 11. And this bright

- line rule ma kes good sense in context

. Service of pleadings triggers respons iv e duties and dead-No. 17

- 2532 9

lines; a contextual analysis would leave too much gray area whe n certainty and simplicity is needed. 1 As a fallback, Holcomb makes a preemption argument that verges on frivolous

. She suggests that if Rule 11 is understood to require service on a represented part y whose attorney ha s not yet filed a written appearance, it conflicts with § 1692c(a)(2), which prohibits such communication , and is therefore pre empted. But § 1692c(a) explicitly allows a debt collector to communicat e with a represented debtor if a court of competent jurisdiction permits it to do so . Bec ause the Rule 11 fits comfortably within that exception, it operates in harmony with § 1692c(a).
Holcomb ’s last argument is that when a lawyer has not yet filed a written appearance, service on the party
, as required by Rule 11 , can be accomplished by serving the

a ttorney as the party’s “a gent .” That’s an un sound reading of the rule, which clearly se ts forth alternatives for service of court papers : (1) “If a party is represented by an attorney of record , serv ice shall be made upon the attorney ” ; (2) “[o] therwise service shall be made upon the party.” I LL

. S UP

. C T

. R. 11(a). The implication is clear. W here there is no attorney of record, service must be direct ed to the party himself , not to his (non

- record) attorney as agent

.

1 Holcomb also cites Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc. , 484 N.E.2d 1178, 1182 (Ill. App. Ct. 1985), but that case does not advance her position here. The defendant there argued that the plaintiff’s posttrial motion was a nullity because the lawyer who filed it was not the attorney of record. The Illinois A ppellate C ourt acknowledged that the attorney improperly filed the motion before becoming the attorney of record but nonetheless declined to invalidate it. The court s aid nothing about what makes a lawyer an attorney of record within the meaning of Rule 11.10 No. 17

- 2532

Other rules of court confirm this understanding. Another subpart of Rule 11 provides that service can be made by

“ [ d ] elivering t he document to the attorney or party .” Id. R. 11(c)(1) (emphasis added). Th e highlighted phrase would be redundant if “party” meant “attorney or party.” The same is true for other Illinois Supreme Court R ules. See, e.g. , i d. R. 201(b)(2) (providing that co mmunications between the party’s attorney and the “party or his agent ” are privileged); i d. R. 231(a) (requiring an affidavit in support of an application for continuance authored “by the party so applying or his authorized agent”); i d. R. 231(g) (declaring that an opposing party must pay costs “on demand of the party, his agent, or his attorney”); i d. R. 765(a) (requiring service to be made by “a party or agent of the party”)

. In sum
, because Finko had not filed a written appearance in the collection action , he was not Holcomb’s attorney of record for purposes of Rule 11’s service requirements. So Rule 11 expressly permitted

— indeed required

— F reedman to send the default motion directly to Holcomb

. The law firm’s compliance with that rule did not violat e § 1692c(a)(2). Accordingly, w e R EVERSE and R EMAND for entry of judgment in Freedman ’s favor

.