Summary Judgment is denied. Defendant’s Motion for a bad faith finding and attorney’s fees is

denied.
DATED: July 24, 2002 ENTER:
TAN H. LEVIN

UNITED STATES MAGISTRATE JUDGE


validation procedure of § 1692g, a debt collector would have actual
knowledge of the facts relevant to a particular debt and could be
held liable under the FDCPA for any further debt collection efforts
that violate the letter of the act. Therefore, under §1692g, the
debtor bears a responsibility to notify the debt collector of facts
which the debt collector would not otherwise be aware. One such
fact would be the existence of a bankruptcy. (Hubbard, 126 B.R.
at 427-28).

Powers v. Professional Credit Services, Inc. 107 F.Supp.2d 166 (N.D. N.Y. 2000), cited
by Plaintiff, is factually distinguishable from the present case. In Powers, unlike here, the
creditor hired a debt collector to deal with the debtor directly, after the creditor had express
written notice, and actual knowledge, that the Plaintiff consumer had retained an attorney as to
the specific debt collection matter there in issue.”

Finally, Defendant’s motion for a finding that this action was brought in bad faith and for
the purpose of harassment and for reasonable attorney’s fees pursuant to U.S.C. 15 § 1692
{x)(a)(3) is denied. The Court finds that the Plaintiff's claims were not brought in bad faith or to
harass. For example, though unsuccessful, the Plaintiff was in good faith in arguing that the
Hubbard case is distinguishable. In short, Plaintiffs claims were a good faith interpretation of
the subject statute and existing case law thereunder. See, e.g., Villareal v. Snow, 1997 WL
116801 at *3 - 4 (N.D.II. March 12, 1997).

CONCLUSION

Defendant’s Motion for Summary Judgment is granted and Plaintiff's Motion for

2 The debtor’s attorney, in Powers, in his written letter notice to the creditor, had also

instructed the creditor to direct all communications to the attorney and to refrain from directly
contacting the debtor/plaintiff.

Too, as Powers is distinguishable, Micare v. Foster & Garbus, 132 F.Supp.2d 77, 80-
81 (N.D. N.Y. 2001) which, as cited by Plaintiff, only conceptually discusses and elaborates on
Powers, is also distinguishable.


J5

Minute Order Form (06/97)

- United States District Court, Northern District of Ulinois

Name of Assigned Judge Ian H. Levin Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 5896 DATE 7/24/2002
CASE Turner vs. J.V.B.D. Associates, Inc.
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

ay

MOTION:

DOCKET ENTRY:

(a8) o Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

GB) Q Answer brief to motion due___. Reply to answer brief due.

(4) o Ruling/Hearing on eset fora

(5) o Status hearing[held/continued to] {set for/re-set for]on__setfor___at

(6) is) Pretrial conferencefheld/continued to] [set for/re-set for]on__—sset for at_

(7) Oo Trial[set for/re-set for]on ss at_—

(8) a [Bench/Jury trial] [Hearing] held/continued to at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) General Rule2! CFRCP41(a)(1) O FRCP41(a)(2).

ao =o [Other docket entry] Enter Memorandum Opinion and Order. Defendant’s motion for summary

judgment [11-1] is granted; defendant’s motion for finding that this action was brought in bad faith and
for the purpose of harassment, and for reasonable attorney’s fees pursuant to U.S.C.
1692k(a)(3) [11-1] is denied. Plaintiffs motion for summary judgment [12-1] is denied. This action is

hereby dismissed.

Qa {For further detail see order (on reverse side offattached to) the original minute order.]

15 section

No notices required, advised in open court,

No notices required.
lo notices req number of notices

Document.
Number

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

diate mailed notice

courtroom OnE He Ge Wir co

mm deputy’s
OT Gaerthaebdighs in

initials
‘central Clerk's Office amailing deputy initials

\s



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

O0CKETED

Stephen P. Turner,

JUL 25 2002
Plaintiff, 2
Case No. 01 C 5896
Vv.
Magistrate Judge Ian H. Levin

J.V.D.B. & Associates, Inc., an Illinois Corporation,

Defendant.

MEMORANDUM OPINION AND ORDER

The Cause coming on to be heard on the Motions for Summary Judgment of the Plaintiff
and Defendant, the motions having been fully briefed and reviewed, the Court finds as follows:

Defendant’s motion for Summary Judgment is granted and Plaintiff's motion for
Summary Judgment is denied. Given the undisputed material facts that Defendant had no actual
knowledge of Plaintiff's bankruptcy proceeding and that at the time of the letter in question
Plaintiff did not have an attorney for the debt collection matter herein,' violations of 15 U.S.C.
§1692(e), 1692(F) and 1692(c)(a){2) of the Fair Debt Collection Practices Act (“FDCPA”) do not
exist as a matter of law. Hubbard v. Nat'l Bond and Collection Associates, Inc., 126 B.R. 422
(D. Del 1991); See also, Powers v. Professional Credit Services, Inc. 107 F.Supp.2d. 166, 168-69
(N.D.N. Y. 2000)

In the case facts here, and given the single debt collection/validation letter involved

herein, any knowledge the phone company creditor had as to Plaintiff’s attorney filed bankruptcy

' Obviously, then, Defendant could not have had actual knowledge at that time of any

attorney representing the Plaintiff as to the subject debt collection matter.


is not imputable to the Defendant debt collector. As expressed in the Hubbard case, Supra:

According to plaintiffs counsel, [Plaintiff] has a cause of action
under § 1692e because a debt collector must investigate a debtor’s
financial background before contacting the debtor. This
proposition is contrary to the intentions of Congress and the
purpose behind §1692g of the FDCPA. Section 1692g was
intended to provide a means by which relevant information could
be exchanged between the debtor and the debt collector in a cost
effective manner. Under §1692g a debtor must be notified in
writing that he can dispute the validity of a debt, or any portion of
it, and demand verification of the debt’s existence. 15 U.S.C.
§1692g(A). Through this process, the debt collector learns
whether the debt is contested and the reasons, if any, for the
debtor’s refusal to pay. The statutory scheme of the FDCPA thus
allows debt collectors to avoid the costs of investigating a debtor’s
background and ensures a cost effective means by which a debtor
and debt collector can exchange information. This is an important
part of the FDCPA’s statutory scheme. S.Rep. No. 382, 95"
Cong., 1 Sess. 2 reprinted in 1977 U.S. Code Cong. & Admin.
News 1695, 1696 (the FDCPA should function “without imposing
unnecessary restrictions on ethical debt collectors.”) & 1699; 15
USS.C. § 1692(e). The plaintiffs contention that debt collectors
must bear the entire burden of collecting information concerning
debtors ignores the importance of § 1692g and the congressional
intent behind its enactment.

The exchange of information provided for by §1692g, for present
purposes, serves two relevant functions. First, the exchange of
information between debtors and debt collectors ensures that debt
collectors promptly receive relevant factual information concerning
debtors so that unnecessary contacts between debt collectors and
debtors can be minimized. See Beattie v. D.M. Collections, inc.,
754 F.Supp 383, 390-91 (D.Del.1991); S.Rep. No. 382, 95" Cong.,
1* Sess. 4 reprinted in 1977 U.S. Code Cong. & Admin. News
1695, 1699. Contrary to the plaintiffs argument, Congress clearly
did not intend to put the entire burden of avoiding unnecessary
contacts on debt collectors. Second, this exchange of information
provides debt collectors with “actual knowledge” of the facts
relevant to their collection efforts. This is significant because only
a knowing violation of §1692e is actionable. Though a mistake of
law is never a defense, Baker v. G.C. Services Corp., 677 F.2d 775,
779 (9" Cir. 1982); Rutyna v. Collection Accounts Terminal, Inc.,
478 F.Supp. 980, 982 (N.D.IIl. 1979), a mistake of fact may excuse
conduct that would otherwise violate the FDCPA. After the