. Heibl, 128 F.3d 497, 502 (7th Cir. 1997). If the debt collector violates the statute, the consumer
is entitled to receive statutory damages, in addition to any actual damages incurred by the failure
to receive proper notice. 15 U.S.C. § 1692k(a).

As noted above, the Act requires that a debt collector’s initial communication includes a
notice of the debtor’s rights under the Act. 15 U.S.C. § 1692g. “The statute does not say in so
many words that the disclosures required by it must be made in a nonconfusing manner. But the
courts, our own included, have held, plausibly enough, that it is implicit that the debt collector
may not defeat the statute’s purpose by making the required disclosures in a form or within a
context in which they are unlikely to be understood by the unsophisticated debtors who are the
particular objects of the statute’s solicitude.” Bartlett, 128 F.3d 497, 500 (7th Cir. 1997).

According to Kluever, nothing in 15 U.S.C. § 1692g requires that the validation notice be
the first document shown to a consumer.’ However, “[t]he key consideration is ‘that the
unsophisticated consumer is protected against confusion whatever form it takes.’”” Marshall-
Mosby v. Corp. Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000) (quoting Bartlett, 128 F.3d
at 500). According to Kluever, the determination of whether an unsophisticated consumer would
be confused by a particular form of notice is a question of fact. Marshall-Mosby, 205 F.3d at
326.

Confusion can take place by either contradicting or overshadowing the required statutory

notice. Bartlett, 128 F.3d at 500. Failing to explain the relationship between the threat of default

' Kluever has also cited the district court opinion in Walker v. National Recovery, 42 F.
Supp. 2d 773 (N.D. Il. 1999), which held that the debt collection letter, which also included the
validation notice language, did not violate the Act. However, that opinion was overruled by the
Seventh Circuit. Walker v. Nat'l Recovery, 200 F.3d 500 (7th Cir. 2000). Kluever’s attorneys
explain that this was simply “an error in citation.”

4



CONCLUSION

For the foregoing reasons, Kluever’s Motion for Summary Judgment and Levin's Cross-

Motion for Summary Judgment are both denied.

Dated: Ge pyeecfte 14 200 Are
\ JOHN y. DARRAH
i tates District Judge



The first page of the complaint and summons stated that Levin must answer the complaint
within thirty days after the service of the summons. The first page also stated that “IF YOU
FAIL TO DO SO, A JUDGMENT BY DEFAULT MAYBE [sic] TAKEN AGAINST YOU FOR
THE RELIEF ASKED IN THE COMPLAINT ....” Def.’s 56.1 6-7; Def.’s Ex. C. The eighth
page of the foreclosure complaint filed by Kluever against Levin contained notices Tequired
under 15 U.S.C. § 1692g. Pl.’s 56.1 J 12. Nothing in the whole packet received by Levin
explained the relationship between Levin’s rights under the Act and Kluever’s right to seeka
default judgment. Def.’s 56.1 47.

ANALYSIS

Section 1692g requires a debt collector to provide written notice to the consumer of
certain rights guaranteed under the Act, One of these rights is known as validation. Generally, a
debt collector’s initial communication must include notice of this right. The notice sent by the
debt collector must inform the consumer that he or she has given thirty days to ask the debt
collector to verify the validity of the debt and the name of the original creditor. In addition, the
notice must also tell the consumer that if he or she fails to respond to the debt collector within
thirty days, the debt will be assumed to be valid by the debt collector. 15 U.S.C. § 1692g(a).

“Tf the consumer notifies the debt collector in writing within the thirty-day period . . . that
the debt, or any portion thereof, is disputed or that the consumer requests the name and address
of the original creditor, the debt collector shall cease collection of the debt, or any disputed
portion thereof, until the debt collector obtains verification of the debt ....” 15 U.S.C. §
1692g(b) (emphasis added). The debt collector must also stop pursuing any legal action,

including the opportunity to seek a default judgment in a court proceeding. See, e.g., Bartlett v.



~ and the statutory right of validation by not including notices that a default judgment will not be
taken against a consumer who seeks validation of his debt may violate the Act. See In re
Martinez, 271 B.R. 696, 701-02 (S.D. Fla, 2001), aff'd 311 F.3d 1272 (11th Cir. 2002) (per
curiam) (explaining that “prominently positioning” the default language over the statutory
notices of the Act creates the potential for consumer confusion if no additional explanation is
included).

Here, Kluever served Levin, the debtor, with a package consisting of sixteen pages. The
first three pages contain the summons. The next four pages are the text of the foreclosure
complaint. The last eight pages are the exhibits, which are identified in the foreclosure
complaint as the mortgage and the assignment of the mortgage.

After the summons and the foreclosure complaint, and before the exhibits, on the eighth
page of the package, is the required § 1692g notice. The § 1692g notice is not referred to or
identified in the complaint or on any other document in the package.” It cannot be said that the
statutory right of validation was not contradicted by the default notice. Therefore, a genuine
issue of material fact exists as to whether the documents provided by Kluever would not confuse

an unsophisticated consumer; and Kluever’s Motion for Summary Judgment is denied.

? In Kluever’s statement of uncontested material facts, the foreclosure complaint and the
§ 1692g notice are separated as different exhibits. The foreclosure complaint and exhibits, minus
the § 1692g notice are Exhibit A. The § 1692g notice is Exhibit B. Levin notes that there has
been no evidence presented showing that the validation notice was presented to any consumer in
this fashion and claims this rearrangement was an attempt to convince the court that the
validation notice was conspicuous and to minimize the confusion of the actual order and
arrangement of presentation of the notice to the consumer. However, according to Kluever, the
documents were separated only “to make it more convenient for the court to review.”

5


Minute Order Form (06/97)

United States District Court, Northern District of Dlinois

*
Name of Assigned Jud Sitting Judge if Oth
7 or Magistrate Tadge John W. Darrah than Assigned Jadge
CASE NUMBER 03 C 2160 DATE 11/19/2003
CASE Levin vs, Kluever & Platt LLC
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(i) im) Filed motion of { use listing in “Motion” box above.]
(2) oO Brief in support of motion due
@) a Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
(5) Oo Status hearing{held/continued to] [set for/re-set for] on set for at
()) Oo Pretrial conference[held/continued to] [set for/re-set for) on set for at -
(ea) oa Trial[set for/re-set for] on at
(8) Oo [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) (CiLocal Rule 41.1 OFRCP41(a\(1) Cl) FRCP41(a)(2).

a0) [Other docket entry] For the reasons stated in the attached memorandum opinion and order,

defendant’s motion for summary judgment [10-1] is denied and plaintiff's cross motion for summary

judgment [17-1] is denied. Enter Memorandum Opinion and Order.
(1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

a | Notices mailed by judge's staff,
Notified counsel by telephone.

Docketing to mail notices.
Mail AO 450 form.

5 arassia’ SO

Copy to judge/magistrate judge. aR 1) ya
e0
Me cermon enh 02 AON a"
initials pawouy © 380) received in
oN L-G Yenc Clerk's Office

>. Number

Document



Plaintiffs, however, cannot prevail solely on the language and arrangement of a
defendant’s foreclosure papers. Levin argues that recent decisions in this district have granted
summary judgment to plaintiffs even if the foreclosure letter did not expressly contradict the
§ 1692g notice. See Kort v. Diversified Collection Servs., Inc., 270 F. ‘Supp. 2d 1017 (N.D. DL.
2003); Whitten v. ARS Nat'l Servs., Inc., 00 C 6080, 2002 WL 1332001 (N.D. Ill. Jun. 18, 2002);
Matthews v., First Revenue Assurance, L.L.C., 00 C 3711, 2001 WL 864272 (N.D. Ill. July 31,
2001). However, these decisions did not discuss the issue of the physical arrangement and
location of the § 1692g notice as confusing. The Court has before it only the complaint, the
summons, and the statutory notice Levin received from Kluever. Levin did not present any
evidence showing that an unsophisticated consumer would be confused by these documents as to
his or her statutory rights under the Act. See, e.g., Johnson v. Revenue Mgmt. Corp., 169 F.3d
1057, 1060 (7th Cir. 1999) (“Unsophisticated readers may require more explanation than do
federal judges; what seems pellucid to a judge, a legally sophisticated reader, may be opaque to
someone whose formal education ended after sixth grade. To learn how an unsophisticated
reader reacts to a letter, the judge may need to receive evidence.”). An issue of material fact

exists in this regard.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ALLEN LEVIN, )
)
Plaintiff, ) DOCK, ED
) NOVig
v. ) No: 03 C 2160 9 2003
)
KLUEVER & PLATT, LLC, ) Judge John W. Darrah
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Plaintiff, Allen Levin (“Levin”), filed suit against Defendant, Kluever & Platt, LLC

(“Kluever”). Levin alleges violations of the Fair Debt Collection Practices Act, 15 U.S.C. §
1692 (“the Act”). Presently before the Court are Kluever’s Motion for Summary Judgment and
Levin’s Cross-Motion for Summary Judgment. For the reasons that follow, both Motions for
Summary Judgment are denied.
LEGAL STANDARD

Summary judgment is appropriate when no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Cincinnati Ins. Co.
v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994). “One of the principal
purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims
or defenses ....” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, although the
moving party on a motion for summary judgment is responsible for demonstrating to the court
why there is no genuine issue of material fact, the non-moving party must go beyond the face of

the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to

J



demonstrate, through specific evidence, that a genuine issue of material fact exists and to show
that a rational jury could return a verdict in the non-moving party’s favor. Celotex, 477 U.S. at
322-27; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Waldridge v. American Hoechst Corp.,
24 F.3d 918, 923 (7th Cir. 1994).

Disputed facts are material when they might affect the outcome of the suit. First Ind.
Bank y. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). When reviewing a motion for summary
judgment, a court must view all inferences to be drawn from the facts in the light most favorable
to the opposing party. Anderson, 477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185
F.3d 726, 731 (7th Cir. 1999). However, a metaphysical doubt will not suffice. Matsushita, 475
USS. at 586. If the evidence is merely colorable or is not significantly probative or is no more
than a scintilla, summary judgment may be granted. Anderson, 477 U.S. at 249-250.

BACKGROUND

The undisputed facts, for the purposes of this motion, taken from the parties’ Local Rule
56.1(a) & (b) statements of material facts (referred to herein as “PI.’s 56.1" and “Def’s 56.1") and
exhibits, are as follows.

On August 30, 2003, Kluever filed a foreclosure suit against Levin on behalf of the holder
and servicer of Levin’s mortgage loan. Pl.’s 56.19. The service of the summons and the
complaint was the first communication Levin had with Kluever. Pl.’s 56.1 4 10. The foreclosure
complaint, including the summons, filed by Kluever consisted of a total of sixteen pages. PI.’s

56.111.