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No. 03 C 5193 Poge 4
expressly authorized by this Act or other laws of this State.” Defendants, however, seck only
to collect interest that plaintiff agreed to pay the original creditor, as expressly authorized by
the ILA. Plaintiff does not allege any attempt by defendants to charge more than he agreed to
pay Greenwood Trust. In fact, defendants offered to settle the debt at a slight discount.

In an effort to maintain his claims, plaintiff seeks to strike the affidavit of Robert Deter,
asenior manager of Discover Financial Services. He claims that Deters not properly qualified
to attest to the authenticity of the card member agreement introduced by defendants. At his
deposition by plaintiff's counsel, Deter testified that he located plaintiff’s account in Discover’s
computer system and determined that it was governed by “Terms Level 5.” He also testified
that he is familiar with the procedures used by Discover employees in recording what terms
govern an account. He then pulled a copy of the card member terms from Discover files and
attached it to his ‘affidavit. While Deter does not have complete knowledge about the
document he handed over, his testimony supports defendants’ contention that the agreement
governed plaintiff's account. Moreover, plaintiff admits that he did not keep a copy of his
card member agreement, claims that he would be unable to provide any information about its
terms, and provides no reasons why we should doubt the authenticity of the agreement
submitted by the defendants. Finally, nowhere in plaintiff’s complaint or briefs does he argue
that either of the defendants actually charged an interest rate greater than that agreed upon
when he obtained the credit card. For those reasons, plaintiff's motion to strike is denied.

Even if we agreed with plaintiff that the ILA limits the amount of interest that an
assignee can charge, his claims would fail because the IA does not apply to plaintiff's debt.
Section 521 of the federal Depository Institutions Deregulation and Monetary Control Act

(@IDA) explicitly creates parity between national and state-chartered banks by preempting


No. 03 C 5193 Page 3

denying the counter-defendant’s motion to dismiss without explanation. Plaintiff attaches only
the counter-claimant’s brief (again, the counter-claimant in that action was represented by
plaintiff's counsel) Jeaving us with no way to determine what arguments were raised in
support of that motion or what reasoning the court used in reaching its decision.

We agree with the Olvera court’s interpretation of the relevant law. Plaintiff is asking

that we find that the assignee of a debt can be prohibited by the IIA from charging the full
interest on the debt if the assignee could not have contracted for the same interest rate as an
original creditor. Plaintiff presents no compelling reason to disregard the general rule that an
assignee stands in the shoes of the assignor. Olvera, 2004 WL 887372 at *4, citing Wetherell
y. Thirty-First Street Building & Loan Association, 39 N.E. 143, 143 (IIL 1894). The HA
regulates only the origination of loans and not the assignment of rights. Id. To hold otherwise
would allow a debtor to receive a better interest rate than was bargained for, simply because
his account was assigned to an unlicensed entity. As long as defendants charged an interest
rate that was less than or equal tothe amount originally contracted for, plaintif?’s claims must
fail. Id, at *4-5, The Discover card agreement produced by the defendants indicates that
plaintiff agreed to an interest rate of either 19.8% or the prime rate plus 8.9 points, whichever
was greater. The evidence shows that Asset Acceptance charged plain tiffa slightly lower rate,
18%. There is no indication that the 19.8% interest rate charged by the issuing bank was in
any way unlawful.

Plaintiff argues that the IJA applies to assignees through 815 ILCS 205/5, which
provides that “No person or corporation shall directly or indirectly accept or receive, in
money, goods, discounts or thing in action, or in any other way, any greater sum or greater

value for the loan, forbearance or discount of any money, goods or thing in action, than is


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No, 03 € $193 Page 5

state interest rate law and allowing a state-chartered bank, such as Greenwood Trust, to
choose from three rate ceilings when dealing with out-of-state customers. 12 U.S.C. §
1831d(a); Greenwood Trust Co, y. Com. of Mass., 971 F.2d 818, 827 (1* Cir. 1992). A
Delaware-based lender! may choose to charge the highest rate allowed by Delaware law. Id.
Delaware law establishes that a credit card issuer may essentially bargain for any agreed upon
rate, and plaintiff directs us to nothing in Delaware law that would prohibit Greenwood Trust,
or the defendants, from seeking to collect the debt in question. See 5 Del. C. § 945.
CONCLUSION
For the foregoing reasons, plaintiff's motion to strike is denied, and defendants’

motions for summary judgment are granted.

LB. Macan,

-| JAMES B. MORAN

, Senibr Judge, U.S, District Court
‘ , 2004.

‘Plaintiff denies that Greenwood Trust is actually a state-chartered bank and claims that defendants
made contradictory statements about its status. Plaintiff produces no evidence, however, that the bank was
chartered in Illinois — the only possible way that the JIA, rather than the DIDA would apply to his claims. If
Greenwood Trust was a national bank, the National Bank Act, 12 U.S.C. § 85, would have the same effect as
DIDA, rendering the ITA meaningless in this case. We also note that the cardmember agreement produced by
defendant explicitly states that Delaware law (rather than Iilinols law) applies to disputes arising under the
agreement,


%— Mintd“érder Form (06/97) \Q
oi ates District Court, Northern District of Dlinois

Name tet oe fe James B. Moran “than Assigned Judge
CASE NUMBERL7 03 C 5193 DATE 7/1/2004
CASE TREVOR VICKEY vs. ASSET ACCEPTANCE, LLC, et al
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.}
MEMORANDUM OPINION AND ORDER
DOCKET ENTRY:
Q) o Filed motion of [ use listing in “Motion” box above.}
(2) oO Brief in support of motion due____.
@ oO Answer brief to motion due____. Reply to answer brief due____
(4) 1a) Ruling/Hearing on setfor___at
(5) QO Status hearing[held/continued to) [set for/re-set for] on setfor____at
(6) OQ Pretrial conference[held/continued to] [set for/re-set for]on_____setfor___—sssat__—.
(7) oO Trial[set for/re-set for]on_ at
(8) Q (Bench/Jury trial] [Hearing] held/continued to at
(9) aq This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) (Local Rule 41.1 OFRCP4I{a(1) OO FRCP41(a)(2).

(10) WN [Otherdocketentry} Enter Memorandum Opinion And Order. Plaintiff's motion to strike is denied,
and defendants’ motions for summary judgment are granted.

gag) @ (For further detail see order attached to the original minute order.]
No notices required, advised in open court.

No notices required. number of noti
Notices mailed by judge's staff.
Notified counsel by telephone. ‘ By 8 2
wo | Docketing to mail notices. 7
| Mail A0 450 form. as icin
Copy to judge/magistrate judge. LYNGS jolisia sn
date mail
ta oor L299 Wd 1- TOP N00
initials
T Kira Taceined is
CaM aalone so oy



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

EASTERN DIVISION
TREVOR VICKEY, )
Plaintiff, ;
vs. } No. 03 C5193
ASSET ACCEPTANCE, LLC, and } DOC% ETS)
McMAHAN & SIGUNICK, LTD., WL 0 2 2094
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Trevor Vickey brought this action against defendants Asset Acceptance, LLC
and McMahan & Sigunick, Ltd. alleging violations of the Fair Debt Collection Practices Act,
15 U.S.C. § 1692 et seg. (FDCPA), and the Illinois Consumer Fraud Act, 815 ILCS 505/2.
Defendants filed separate motions for summary judgment and plaintiff filed a motion to strike
the affidavit of Robert Deter. For the following reasons, plaintiff's motion is denied and
defendants’ motions are granted.

BACKGROUND

‘Plaintiff obtained a Discover credit card account from Greenwood Trust Company, a
licensed bank, in early 1995. Shortly thereafter he fell behind on his payments, causing the
bank to put the account into default and charge it off Defendant Asset Acceptance acquired
the account and, in February 2003, began sending letters to the plaintiff demanding payment.
When plaintiff still refused to pay the account, Asset Acceptance enlisted the services of
defendant McMahan & Sigunick, who sent a series of letters demanding payment and

threatening legal action. Plaintiff’s four-count complaint alleges that defendants, who are not

x /


o
No. 03 C 5193 Page2
licensed by the State of Ilinois, acted together in charging him interest in excess of 5%, which
is prohibited by the linois Interest Act, 815 ILCS 205/1 et seq. (IA).
DIS a ,
Our function in ruling on a motion for summary ‘judgment is merely to determine if

there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986). Only if the evidence on file shows that no such issue exists, and that the

moving party is entitled to judgment as a matter of law, will we grant the motion. Celotex

Corp. v Catrett, 477 U.S. 317, 322-23 (1986); Bennett y. Roberts, 295 F.3d 687, 694 (7* Cir.
2002).

Plaintiff's counsel brought a suit nearly identical to this one in Olvera y. Blitt & Gaines,
2004 WL 887372 WN. D. Ii.). In Olvera, the court determined that the TA did not prevent an
unlicensed entity from obtaining the rights to an account from a licensed creditor and then
charging interest in excess of the statutory maximum. Jd. at *4, The court, however, denied
the defendants motion to dismiss, finding that the defendant had failed to establish that the
original agreement allowed for higher interest. Jd. at *5. The court subsequently issued a
minute order denying a motion for reconsideration by the plaintiff, stating that “so long as the
interest that defendant sought to collect from plaintiff was ‘expressly authorized by the
agreement creating the debt,’ see 15 U.S.C. § 1692f(1), then defendant’s attempt to collect that
amount was not unlawful under the FDCPA.” Olvera y. Blitt & Gaines, No. 03 C 6717 (N.D.
Tl. May 18, 2004).

Plaintiff argues that Cavalry v. Olvera, 03 SC K 2373 (Circuit Court of Kane County
June 17, 2004), effectively overruled Olvera by denying a motion to dismiss claims against an

assignee under the I[A. The court in Cayalry, however, issued only a handwritten order