UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MICHAEL PAUL MATUSZCZAK,

 Plaintiff,

v.

MIRAMED REVENUE GROUP, LLC,

 Defendant.

2:16-cv-00183-PPS-PRC

Honorable Philip P. Simon

Magistrate Judge 

Honorable Paul Cherry

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY 

JUDGMENT

Attorneys for Defendant(s)

Nabil G. Foster

Hinshaw & Culbertson LLP

222 N. LaSalle Street, Suite 300

Chicago, IL 60601

Phone: (312) 704-3000

Fax: (312) 704-3001

/s/ David S. Klain______

David S. Klain

One of the Attorneys for Plaintiff

USDC IN/ND case 2:16-cv-00183-PPS document 24 filed 06/26/17 page 1 of 11
TABLE OF CONTENTS

INTRODUCTION .......................................................................................... 4 

STATEMENT OF FACTS ............................................................................... 5 

LEGAL STANDARD ....................................................................................... 5

ARGUMENT ................................................................................................ 6

..

I. Plaintiff has suffered Injury Due to Defendants’ Conduct and Therefore Has 

Standing to Bring the Instant Action........................................................... 6

II. Defendant’s statements in conjunction with its settlement offer to Plaintiff were 

material ............................................................................................... 7

III. Defendant’s statements regarding legal action were false and misleading because 

Defendant had no intention of taking such action ........................................... 8

IV. Defendant’s invocation of legal action amounted to a threat ............................. 9

V. Extrinsic Evidence is not required because Defendant’s statements were clearly false 

and misleading ..................................................................................... 9

CONCLUSION ............................................................................................ 10

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TABLE OF AUTHORITIES

Cases

Brummett v. Sinclair Broadcast Group, Inc.,

414 F.3d 686 ...................................................................................... 6 

Molino v. Bast Services, Inc.,

2011 WL 841891 ................................................................................... 6 

O’Rourke v. Palisades Acquisition XVI, LLC,

635 F.3d 938 (7th Cir. 2011) ....................................................................... 7

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 ................................................................................. 6,7 

Sterk v. Redbox Automated Retail, LLC,

770 F.3d 618 (7th Cir. 2014) ...................................................................... 6

Wahl v. Midland Credit Mgmt.,

446 F.3d 643 (7th Cir. 2009) ....................................................................... 8

Other Authorities

Fed. R. Civ. P. 56(a) ......................................................................................... 5

USDC IN/ND case 2:16-cv-00183-PPS document 24 filed 06/26/17 page 3 of 11
UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MICHAEL PAUL MATUSZCZAK,

 Plaintiff,

v.

MIRAMED REVENUE GROUP, LLC,

 Defendant.

2:16-cv-00183-PPS-PRC

Honorable Philip P. Simon

Magistrate Judge 

Honorable Paul Cherry

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY 

JUDGMENT PURSUANT TO FED. R. CIV. P. 56

NOW COMES Plaintiff MICHAEL PAUL MATUSZCZAK (“Plaintiff”), by and through 

his attorneys, Consumer Law Partners, LLC (“CLP”), submitting Plaintiff’s Response to 

Defendant’s Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56, and in support states 

as follows:

INTRODUCTION

Defendant has filed the instant Motion for Summary Judgment asserting that Plaintiff’s 

claims of Defendant’s impermissible collection activities are without merit. Plaintiff incurred a 

debt which was defaulted on and ultimately ended up with Defendant for collections. In an 

attempt to collect on the defaulted balance, Defendant provided false and misleading information 

with regards to the amount it would accept in order to settle Plaintiff’s account and 

indiscriminately invoked potential legal action in order to get Plaintiff to pay off the debt when 

he had already made it clear he could not afford to do so at that time. Defendant’s actions were 

false, misleading, material, and caused injury to Plaintiff. For the reasons stated below, 

Defendant’s motion must be denied.

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STATEMENT OF FACTS

Plaintiff suffers from a multitude of health issues for which he regularly seeks medical 

treatment. See Plaintiff’s Complaint, ¶11 attached hereto as Exhibit A. Plaintiff’s financial 

situation has caused him to not be able to satisfy some of his medical debts which have 

ultimately wound up in collections. See Exhibit A, ¶12. In an effort to get a better understanding 

of his outstanding debt obligations in anticipation of filing for Social Security Disability benefits, 

Plaintiff pulled his credit report and saw an entry from Defendant. See Exhibit A, ¶13. On or 

about May 12, 2016, Plaintiff called Defendant to inquire about the entry and was connected 

with Defendant’s representative, Dineta. See Exhibit A, ¶14. Dineta informed Plaintiff that he 

had an outstanding balance of $3,494.44 owed to Saint Margaret Mercy (“subject debt”). See 

Exhibit A, ¶15. Dineta offered to settle Plaintiff’s account at a 20% discount for $2,769.00. See 

Exhibit A, ¶16. Plaintiff informed Dineta that he could not make a payment at that time due to 

his current status related to Social Security Disability. See Transcript of Call #1, attached hereto 

as Exhibit B. Dineta warned Plaintiff that the account might be forwarded to an attorney if the 

settlement offer was not accepted. See Exhibit B. After Plaintiff’s conversation initial 

conversation with Dineta, he was concerned by her reference to potential legal action and called 

back a second time to speak with her and was relayed the same information. See Transcript of 

Call #2, attached hereto as Exhibit C.

SUMMARY JUDGMENT STANDARD OF REVIEW

Summary judgment should be granted when “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter 

of law.” Fed.R.Civ.P. 56(c). When making such a determination, the Court must construe the 

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evidence and make all reasonable inferences in favor of the non- moving party. Molino v. Bast 

Services, Inc., 2011 WL 841891 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 317, 322 106 

S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “A genuine issue of material fact arises only if sufficient 

evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” 

Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d 686, 692 (7th Cir. 2005). 

ARGUMENT

I. Plaintiff has suffered Injury Due to Defendants’ Conduct and Therefore Has 

Standing to Bring the Instant Action

In its Motion for Summary Judgment, Defendant challenges Plaintiff’s standing to bring 

the instant action. In support of its position, Defendant points to the recent ruling from the 

Supreme Court, Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. May 16, 2016). However, 

Defendant fails to point-out that in Spokeo the Court pointed to “intangible injuries” and “the 

risk of real harm” as bases for standing. Spokeo at 1549. The Supreme Court specifically noted 

that “the violation of a procedural right granted by statute can be sufficient in some 

circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not 

allege any additional harm beyond the one Congress has identified.” Spokeo at 1549.

The Seventh Circuit’s primary opinion on concreteness, Sterk v. Redbox Automated 

Retail, LLC, 770 F.3d 618, 623 (7th Cir. 2014), foretold the principles set forth in the Spokeo

opinion nearly two years before that opinion was issued. The Sterk court similarly deferred to 

Congressional judgment, recognizing that “Congress does have the power to enact statutes 

creating legal rights, the invasion of which creates standing, even though no injury would exist 

without the statute.” Sterk at 623. As in Spokeo, the Sterk court did not give Congress a blank 

check, acknowledging that “Congress may not lower the threshold for standing below the 

minimum requirements imposed by the Constitution.” Id. In the case before the Sterk court, as 

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in the case here, Congress created the right based on its evaluation of the risk of harm that would 

arise from violation. Id

Both the Seventh Circuit and the Supreme Court have shunned financial harm as the sole 

means of determining standing. The Spokeo Court instead points to “intangible injuries” and 

“the risk of real harm” as bases for standing. Spokeo at 1549. Here, Plaintiff was presented with 

false and misleading information from a third-party that he had no prior relationship with. 

Additionally, Defendant needlessly invoked legal action which it had no intention of taking in 

order to get Plaintiff to accept an offer it knew he could not afford. Were Plaintiff to have 

acquiesced to Defendant’s impermissible actions, he would have been subjected to the risk of 

real harm due to his financial situation. 

II. Defendant’s statements in conjunction with its settlement offer to Plaintiff were 

material.

A false or misleading statement is material if it has the ability to influence a consumer’s 

decision. O’Rourke v. Palisades Acquisition XVI, LLC, 635 F.3d 938, 942 (7th Cir. 2011). As 

discussed in the introduction, Plaintiff and Defendant had no prior business relationship. To 

Plaintiff, Defendant was an unknown party seeking money from him. As such, Plaintiff was 

already in a dubious position in relationship to Defendant. Defendant’s misstatement only 

served to further Plaintiff’s questioning of how to properly handle the collection activity he was 

experiencing. Being presented with false information by a party he already questioned caused 

Plaintiff to consult with attorneys regarding his rights. 

Defendant focuses on the amount at issue ($.45) to show immateriality. However, that 

misses the point entirely. Plaintiff took the affirmative action of calling Defendant in order to get 

a handle on his finances in anticipation of filing for Social Security Disability benefits. His 

intention was to get his financial obligations in order so that he could start to remedy them once 

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he secured income through the Social Security Administration. By providing false and 

misleading information, regardless of how nominal the amount, Defendant made that task harder 

for Plaintiff and caused his to question Defendant’s intention to work with him to resolve his 

debt. Defendant points to the fact that Plaintiff did not ask for clarification at the time the offer 

was made, but he was not calculating numbers in real- time on the call as his intention was 

simply to obtain his obligations and potential settlement options available to him. He trusted that 

the information provided to him was accurate. It was only later, while processing the information 

that he discovered the discrepancy. 

Defendant cites to Wahl v. Midland Credit Mgmt., 446 F.3d, 643 at 646 (7th Cir. 2009) 

for the preposition that “while the FDCPA is a strict liability statue...the state of mind of the 

reasonable debtor is always relevant.” Plaintiff agrees with this point. A reasonable debtor who 

is told explicitly that she would be receiving a 20% discount should expect the same. It is no 

leap at all for an unsophisticated consumer to be concerned that one false statement would breed 

another. 

III. Defendant’s statements regarding legal action were false and misleading because 

Defendant had no intention of taking such action.

Defendant posits that its statements regarding legal action were not false and misleading 

because in the past, its client has given it authority to place accounts with attorneys for suit when 

non- legal efforts have failed. However, this argument is a non sequitur. Past actions by 

Defendant do not prove its intention in this instance. The facts are that the subject debt was well 

over a year old. Plaintiff voluntarily contacted Defendant showing an intention to resolve the 

subject debt. Defendant was aware that Plaintiff had no income and no assets and was in the 

process of applying for Social Security Disability benefits. It was clear that there would be 

nothing to gain by filing suit against Plaintiff. It would have been more beneficial to set up an 

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arrangement whereby Defendant would track the status of Plaintiff’s Social Security Disability 

claim so that when he did secure income, Plaintiff and Defendant could work to resolve the 

subject debt. By invoking legal action, Defendant’s sole intention was to scare Plaintiff into 

accepting the settlement offer even though he could not afford to do so. 

IV. Defendant’s invocation of legal action amounted to a threat. 

Plaintiff made clear to Defendant that he could not make a payment on the subject debt in 

the May 12, 2016 call. In that context, Defendant’s immediate invocation of the potential for 

legal action amounted to a threat. It was known to Defendant that Plaintiff would be making no 

payment on the subject debt during the May 12, 2016 call due to his financial situation. The only 

logical reason for invoking legal action at that point was to illicit immediate action, in this case, 

getting Plaintiff to accept the settlement offer. Plaintiff’s understanding was that his failure to 

pay the subject debt was going to result in legal action against him, and reading the transcript of 

the conversation with Defendant’s representative in context, it is clear that was the intention to 

give off. Threats can take the form of passive and active language. In this case, Dineta’s passive 

tone had the same net effect than if she said explicitly “you will be sued.” The difference is, 

regardless of her tone, there was simply no intention to take the action, just to try to illicit an 

immediate response by Plaintiff. 

V. Extrinsic Evidence is not required because Defendant’s statements were clearly false 

and misleading.

Plaintiff concedes the Seventh Circuit’s stance on extrinsic evidence in the case of 

deceptive, misleading or confusing statements when it is unclear whether said statements would 

mislead an unsophisticated consumer. However, Plaintiff contends that the statements made by 

Defendant in the instant case are clearly misleading and as such, do not require extrinsic 

evidence. Numbers don’t lie. There is no dispute that 20% off of $3,494.44 is $2,795.55, not 

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$2,796.00. Defendant chalks it up to a matter of adjusting to a round number, but to an 

unsophisticated consumer with limited or no income, it’s clearly an attempt to collect an 

additional $.45. That may mean nothing to a company with the financial resources of Defendant, 

but to an unsophisticated consumer, who is already skeptical in its dealings with a debt collector, 

it is a blatant deception.

In regards to Defendant’s threat of legal action, there is no requirement that Plaintiff 

show through extrinsic evidence that Defendant’s statements were misleading because the 

allegation is that Defendant had no intention of taking such action. The record is clear on that 

point as Defendant was aware such actions against Plaintiff would be fruitless and the statement 

was only meant to illicit an immediate reaction.

CONCLUSION

Defendant’s Motion should be denied because it failed to meet the high burden to achieve the 

extreme remedy of Summary Judgment. As stated above, there are multiple issues of material 

fact regarding Defendant’s liability and Plaintiff’s damages that must be left for a finder of fact 

to determine.

WHEREFORE, Plaintiff MICHAEL PAUL MATUSZCZAK respectfully requests that 

this Honorable Court deny Defendant’s Motion for Summary Judgment.

 Respectfully Submitted,

/s/: David S. Klain

Attorney for Plaintiff

David S. Klain, Esq.

Consumer Law Partners, LLC

435 N. Michigan Ave., Suite 1609

USDC IN/ND case 2:16-cv-00183-PPS document 24 filed 06/26/17 page 10 of 11
Chicago, IL 60611

P: (267)422-1000

F: (267) 422-2000

davidklain@aol.com

CERTIFICATE OF SERVICE

I, David S. Klain, an attorney, certify that on June 26, 2017, I caused the foregoing 

Plaintiff’s Response to Defendant’s Motion for Summary Judgment to be served upon the 

Defendant, Miramed Revenue Group, LLC, via this Court’s electronic notification system, 

CM/ECF.

/s/ David S. Klain

David S. Klain, Esq. #66305

Counsel for Plaintiff

Admitted in the Northern District of Indiana

Consumer Law Partners, LLC

435 N. Michigan Ave., Suite 1609

Chicago, Illinois 60611

(267) 422-1000 (phone)

(267) 422-2000 (fax)

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