In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-2532

BETTY HOLCOMB,

Plaintiff-Appellee,

v.

FREEDMAN ANSELMO LINDBERG, LLC,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15 C 1129 — John Z. Lee, Judge.

____________________

ARGUED APRIL 4, 2018 — DECIDED AUGUST 21, 2018

____________________

Before WOOD, Chief Judge, and BAUER and SYKES, Circuit 

Judges.

SYKES, Circuit Judge. When Betty Holcomb ran up a 

credit-card bill and did not pay, the 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. So Freedman

served the motion on both Holcomb and Finko.

This lawsuit followed. Holcomb alleges that Freedman

violated § 1692c(a)(2) of the Fair Debt Collection Practices 

Act (“FDCPA” or “the Act”), which prohibits 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 crossmotions for summary judgment, Freedman argued that an

Illinois court rule gave it “express permission” to serve 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 shall be made upon the party.” ILL. SUP. CT. R. 11(a). 

Because Finko had not yet filed 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-technical” and entered judgment for 

Holcomb.

We reverse. Illinois precedent is clear that an attorney becomes a party’s “attorney of record” for Rule 11 purposes

only by filing a written appearance or other pleading with 

the court. Finko had done neither, so Rule 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 Anselmo 
No. 17-2532 3

Lindberg, LLC, to collect it. On Portfolio Recovery’s behalf, 

Freedman filed a complaint against Holcomb in Cook County Circuit Court on August 4, 2014. Holcomb filed a pro se

appearance, but soon after retained Attorney 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 hearings on 

November 12, 2014, and January 6, 2015. Both times the 

court entered a form “trial call order,” checking a box indicating that “defendant’s counsel” was “present before the 

court.” Neither order identified Finko or the Debtors Legal 

Clinic by name.

On January 8, 2015, Freedman moved for default judgment. Because Finko had not yet filed a written appearance 

or other pleading with the court, Freedman mailed notice of 

the motion to both Holcomb and Finko. That precipitated

this lawsuit accusing Freedman of violating § 1692c(a)(2) of 

the FDCPA. That section of the Act prohibits a debt collector 

from communicating with a consumer about the collection 

of a debt when it knows the consumer is represented by 

counsel. But there are several exceptions, one of which is 

implicated here: the statute prohibits direct contact with a 

represented debtor “[w]ithout ... the express permission of a 

court of competent jurisdiction.” § 1692c(a)(2). Stated positively, the FDCPA permits direct contact with a represented 

debtor if a court of competent 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 Rules, 

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]therwise” 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 “attorney 

of record” within the meaning of Rule 11. On this understanding of the rule, Freedman had no choice but to send the 

default motion to Holcomb. In other words, Rule 11 gave 

Freedman “express permission” to serve Holcomb directly.

The judge rejected this reading of Rule 11, calling it

“hyper-technical.” He concluded 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 the state court had done so by checking the box 

on the call orders showing that “defendant’s counsel” was 

“present 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 

judgment, so our review is de novo and we construe 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 part: “Without ... the express permission of a court of competent jurisdiction, a debt collector 
No. 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 attorney with respect to such 

debt ... .” 15 U.S.C. § 1692c(a), (a)(2). As the opening phrase 

of the statute makes clear, a debt collector may communicate 

with a represented debtor if a court of competent jurisdiction 

has given “express permission.”

Freedman reprises its argument that 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 and 

complaint. 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.” ILL. SUP. CT.

R. 11(a) (emphasis added).

In 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). Today we make that 

holding explicit. 

Everyone agrees that the Illinois circuit courts 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 requiring a certain action obviously permits that 

action, so a rule requiring service directly on a party expressly permits 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 filed 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 sliding-scale approach in 

which status as an attorney of record for Rule 11 purposes 

depends on the lawyer’s degree of participation 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 court.

Jayko v. Fraczek, 966 N.E.2d 1121, 1135 (Ill. App. Ct. 2012) 

(“The clear language 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 lawyer does not become an attorney of record

simply by representing a party. Id.

Illinois courts have consistently applied this rule. For example, in J.P. Morgan Mortgage Acquisition Corp. v. Straus, 

980 N.E.2d 702, 707–08 (Ill. App. Ct. 2012), the Illinois Appellate Court held that Rule 11 required 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 was 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 Windmon v. Banks, 335 N.E.2d 116 (Ill. 

App. Ct. 1975). There a lawyer represented a plaintiff at her 

deposition and gave opposing 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. The 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 attorney of 

record for Rule 11 purposes only upon the filing of a written 

appearance or other pleading 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 attorney of record for purposes of Rule 11 

requires a written 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 in the

November 12 and January 6 call orders that “defendant’s

attorney” was “present in court.”

Holcombs insists that Illinois trial courts have the discretion to recognize a lawyer as the attorney of record without a 
8 No. 17-2532

written appearance or pleading. But the cases 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 Appellate Court 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 argued that he had no obligation to appear 

because he never filed a written appearance and was therefore not the attorney of record. Id. at 34. The Illinois Appellate Court rejected this attempt to evade his professional 

duties to his client and the court, reasoning that the lawyer’s 

“course of conduct ... [could] be 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 filed 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 owes to his client and the court. Neither 

case undermines the clear rule—established in cases like

Jayko, Straus, and 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 makes good sense in context. 

Service of pleadings triggers responsive duties and dead-
No. 17-2532 9

lines; a contextual analysis would leave too much gray area 

when 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 party whose 

attorney has not yet filed a written appearance, it conflicts 

with § 1692c(a)(2), which prohibits such communication, and 

is therefore preempted. But § 1692c(a) explicitly allows a 

debt collector to communicate with a represented debtor if a 

court of competent jurisdiction permits it to do so. Because 

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 

attorney as the party’s “agent.” That’s an unsound reading of 

the rule, which clearly sets forth alternatives for service of 

court papers: (1) “If a party is represented by an attorney of 

record, service shall be made upon the attorney”; 

(2) “[o]therwise service shall be made upon the party.” ILL.

SUP. CT. R. 11(a). The implication is clear. Where there is no 

attorney of record, service must be directed 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 Appellate Court acknowledged that the attorney 

improperly filed the motion before becoming the attorney of record but 

nonetheless declined to invalidate it. The court said 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 the document to the attorney or party.” Id.

R. 11(c)(1) (emphasis added). The highlighted phrase would 

be redundant if “party” meant “attorney or party.” The same 

is true for other Illinois Supreme Court Rules. See, e.g., id.

R. 201(b)(2) (providing that communications between the 

party’s attorney and the “party or his agent” are privileged);

id. R. 231(a) (requiring an affidavit in support of an application for continuance authored “by the party so applying or 

his authorized agent”); id. R. 231(g) (declaring that an opposing party must pay costs “on demand of the party, his agent, 

or his attorney”); id. 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—Freedman 

to send the default motion directly to Holcomb. The law 

firm’s compliance with that rule did not violate § 1692c(a)(2). 

Accordingly, we REVERSE and REMAND for entry of judgment 

in Freedman’s favor.