DISCUSSION

Turner avers that he is entitled to judgment as a matter of law with respect to his § 1692e
claim based on the Seventh Circuit’s decision in Randolph. (P].’s Mot. at 4-5.) Turner contends that
in Randolph the Seventh Circuit held that a debt collector’s false statement, which entailed making
a demand for payment while a debtor is in bankruptcy, is presumptively wrongful under the FDCPA.
(/d.) Tuer therefore contends that, like the debt collectors’ false statements in Randolph demanding
payment from debtors while in bankruptcy, J.V.D.B’s March 29, 2001 collection letter claiming he
owed a $97.80 debt to Pre-Paid was indisputably false because the debt had already been discharged
in bankruptcy on July 5, 2000. (/d.) Accordingly, Turner avers that there is no material issue of fact
that remains to be resolved with regard to his § 1692e claim because J.V.D.B,’s March 29, 2001
collection letter constitutes a false statement that is presumptively wrongful and violates the FDCPA
as decided in Randolph. (Id.)

J.V.D.B., on the other hand, avers that Turner is not entitled to judgment as a matter of law
because he inappropriately relies on dictum contained in Randolph and, moreover, the issue that was
decided in Randolph is different from the issue in the instant case. (Def.’s Resp. at 1-2.) J.V.D.B.
asserts that the issue that the Seventh Circuit decided in Randolph dealt with whether the Bankruptcy
Code was incompatible with the FDCPA and whether a plaintiff could bring an FDCPA claim for
an alleged violation ofa bankruptcy stay. (/d. at 3.) J.V.D.B. further contends that the Randolph case

is not applicable herein because the Seventh Circuit did not make an explicit finding that any of the

?Turner further contends that J.V.D.B.’s only defense under the FDCPA is the bona fide
error defense as provided by § 1692k(c) which this Court has already dismissed with prejudice.
(Pl.’s Mot. at 5.) It bears noting that, on May 19, 2004, the Court granted Turner’s motion for
summary judgment, as a matter of law, as to J.V.D.B.’s bona fide error defense and dismissed
J.V.D.B.’s amended affirmative bona fide error defense with prejudice.

4


of March 29, 2001.” Turner, 330 F.3d at 995. The Seventh Circuit thus later concluded that
“[bjecause knowledge is not an element of a violation of 15 U.S.C. § 1692e, and because Turner has
presented evidence from which a reasonable jury could conclude that J.V.D.B. made a false,
deceptive, or misleading representation about the legal status of Turner’s debt, we reverse the district
court’s grant of summary judgment in favor of J.V.D.B. regarding § 1692e and remand”, implicitly,
for a trial on this § 1692e issue. Id. at 999.
ISSUE

Turner now moves for judgment on the pleadings averring that he is entitled to judgment as
a matter of law as to his § 1692e claim based on the Seventh Circuit’s recent decision in Randolph
v. IMBS, Inc., 368 F.3d 726 (7" Cir. 2004).

LEGAL STANDARD

As is pertinent here, a court may grant a motion for judgment on the pleadings “only if the
moving party clearly establishes that no material issue of fact remains to be resolved and that he or
she is entitled to judgment as a matter of law.” Nat'l Fidelity Life Ins. Co. v. Karaganis, 811 F.2d
357, 358 (7" Cir. 1987)(quoting Flora v. Home Fed. Savings & Loan Ass'n, 685 F.2d 209, 211 (7"
Cir. 1982)); see also 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure
§ 1368 at 530 (1990)(noting that courts will not grant a motion for judgment on the pleadings if a
material issue of fact exists). A court may only consider those matters presented in the pleadings and
“must view the facts in the light most favorable to the nonmoving party.” Nat’! Fidelity Life, 811
F.2d at 358 (citing Republic Steel Corp. v. Pennsylvania Eng’g Corp., 785 F.2d 174, 177 n.2(7" Cir.

1986)).


letters at issue in Randolph violated the FDCPA and, moreover, these subject letters contained
language demanding “immediate” payment whereas J.V.D.B.’s March 29, 2001 collection letter
simply stated that J.V.D.B. had been hired to collect a debt. (/d. at 2, 3.) J.V.D.B. also asserts that
the Seventh Circuit specifically remanded the instant case with instructions for a determination as
to whether a reasonable jury could conclude that J.V.D.B. made a false, deceptive, or misleading
representation or statement regarding the legal status of Turner’s debt in violation of § 1692e of the
FDCPA, (id. at 1, 3.) See Turner, 990 F.3d at 999.

The Court finds, respectfully, that Turner’s reliance on Randolph is unavailing. Randolph
involved and addressed a different issue than the issue(s) in the present case. Specifically, the issue
in Randolph, unlike here, was whether the Bankruptcy Code “preempts” and “trumps” the Fair Debt
Collection Practices Act where both statutes deal with the same subject. Randolph, 368 F.3d at 728,
730.

Moreover, even if it is assumed arguendo that Randolph is inconsistent with the decision and
remand directions of the Seventh Circuit in Turner, than Randolph is in direct conflict with the
Seventh Cireuit’s holding in Turner. Since the Turner opinion gave this Court specific directions
and an explicit mandate (versus the general statements in Randolph relied on by Turner), this Court
would deem it necessary to follow the specific directive of Turner and conduct a trial under the

guidelines of Turner?

3It perhaps bears noting that rather than rejecting its decision in Turner, the Seventh
Circuit in Randolph approved Turner by stating: “We reaffirm the approach of Turner and
Hyman” (Randolph, 368 F.3d at 732); and, earlier, “Two recent decisions of this circuit arising
out of postbankruptcy demands for immediate payment illustrate how these provisions of the
FDCPA work. Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991 (7" Cir. 2003); Hyman vy.
Tate, 362 F.3d 965 (7" Cir. 2004).” Jd. at 728.


Minute Order Form (06/97)

United States District Court, Northern District of INinois

Name of Assigned Judge Jan H. Levin Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 01 C5896 DATE 8/24/2004
CASE Turner vs, J.V.D.B. & Assoc. 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

MOTION: of the motion being presented.]

DOCKET ENTRY:

qd) ag Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) Oo Answer brief to motion due . Reply to answer brief due

(4) oO Ruling/Hearing on set for at .

(5) | Status hearing set for 10/21/2004 at 10:15 A.M..

(6) im) Pretrial conference[held/continued to] [set for/re-set for] on set for at :

(7) Oo Trial[set for/re-set for} on at

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

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) O Local Rule 41.1 OOFRCP41(a)(1) O FRCP4i(a)(2).

(10) Ml [Otherdocketentry] Enter memorandum opinion and order on plaintiff’s motion for judgment
on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff’s motion for judgment
on the pleadings is hereby denied.

dl) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
2
No notices required, number of notices
ou | Notices mailed by judge’s staff. AUG
_ Notified counsel by telephone. 29 2004
Docketing to mail notices.
Mail AO 450 form. docksting/depury initials
Copy to judge/magistrate judge. 5
8/24/2004
courtroom date mailed notice
SM deputy’s sm
initials _—
Date/time.received .
central Clerk's Offi mailing deputy iniiads



Accordingly, a trial must be conducted under the explicit mandate of the Seventh Circuit in
Turner, as to whether as a matter of fact a misleading implication (that Turner had to pay the $97.80
debt) arises from an objectively reasonable reading of J.V.D.B.’s collection letter of March 29, 2001.
Turner, 330 F.3d at 995, 999.

CONCLUSION

In view of the foregoing, the Court denies Turner’s motion for judgment on the pleadings.

ENTER:

“Tl di

IAN H. LEVIN
United States Magistrate Judge

Dated: August 24, 2004



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

EASTERN DIVISION
)
STEPHEN P. TURNER, )
)
Plaintiff, )
) Case No. 01 C 5896
y. )
) Magistrate Judge Ian H. Levin
J.V.D.B. & ASSOCIATES, INC., an )
Illinois Corporation, )
)
Defendant. )
) DOCKETER

AUG
MEMORANDUM OPINION AND ORDER #5 2004

Plaintiff Stephen P. Turner (““Tumer”) moves for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). For the reasons hereinafter set forth, Plaintiff's motion is
denied.

BACKGROUND FACTS

On March 17, 2000, Turner filed a Chapter 7 bankruptcy petition. (Pl.’s Mot. at 1.) A debt
in the amount of $97.80 owed to Pre-Paid Local Access Phone Service Company (“Pre-Paid”) was
listed on Turner’s bankruptcy petition. (/d.) Turner’s $97.80 debt to Pre-Paid was discharged in
bankruptcy and Pre-Paid received notice of the discharge on March 22, 2000 and July 5, 2000. See
Turner v. J.V.D.B. & Assocs. Inc., 330 F.3d 991, 994 (7" Cir. 2003). By July of 2000, Turner’s
bankruptcy was listed on his credit reports. (/d.)

Despite the fact that Turner’s bankruptcy was listed on his credit reports, Pre-Paid turned the
debt over to a debt collector, Defendant J.V.D.B. & Associates, Inc. (“J.V.D.B.”). Turner, 330 F.3d

at 994, J.V.D.B. then sent a collection letter dated March 29, 2001 printed on its letterhead to Turner

5


and stated that the balance due to Pre-Paid was $97.80. (/d.) The collection letter stated the
following:

This is an attempt to collect a debt and any information obtained will be used for that
purpose.

The above claim has been referred to this office for collection.

Pursuant to Public Law 95-109, unless you notify us within 30 days after receiving

this notice that you dispute the validity of the debt or any portion thereof, this office

will assume this debt is valid. If you notify this office in writing within 30 days from

receiving this notice, this office will obtain verification of the debt or obtain a copy

of a judgment and mail you a copy of such judgment or verification. If you request

. . in writing within 30 days after receiving this notice, this office will provide you

with the name and address of the original creditor, if different from the current

creditor.

Very truly yours,

J.V.D.B. & Associates, Inc.

Collection Agency
(id)

As is pertinent here, after receiving the collection letter, Turner forwarded it to his attorney
who subsequently brought suit under 15 U.S.C. § 1692e! of the Fair Debt Collection Practices Act
(“FDCPA”). Turner, 330 F.3d at 994. In his suit, Turner alleges that J.V.D.B. violated § 1692e by
telling him he had to pay a debt that had been previously discharged in bankruptcy. By doing this
Turner alleges J.V.D.B. misrepresented the legal status of the debt. (/d.)

On appeal, with regard to Turner’s § 1692e claim, the Seventh Circuit ruled inter alia that

“a reasonable jury could conclude as a matter of fact that a misleading implication (that Turner had

to pay the $97.80 debt) arises from an objectively reasonable reading of J.V.D.B.’s collection letter

‘Section 1692e provides that “[a] debt collector may not use any false, deceptive, or
misleading representation or means in connection with the collection of any debt.” 15 U.S.C. §
1692e.