Summary
denying defendant's Rule 12(c) motion, which relied on affidavit attached to answer disputing the allegations in the complaint, because disputes of material fact existed
Summary of this case from Sartin v. Chula Vista, Inc.Opinion
Case No. 15-CV-383
11-04-2015
ANWAR RODRIGUEZ, Plaintiff, v. I.Q. DATA INTERNATIONAL, INC., Defendant.
ORDER
Defendant's Motion for Judgment on the Pleadings or Alternatively Summary Judgment [15] is denied and Plaintiff's Motion to Continue or Stay Defendant's Motion for Summary Judgment [26] is granted.
STATEMENT
I.Q. Data International, Inc. ("IQ Data") has filed a Motion for Judgment on the Pleadings Pursuant to Fed. R. Div. P. 12(c) or Alternatively Summary Judgment Pursuant to Fed. R. Div. P. 56. Because IQ Data's Motion for Judgment on the Pleadings ("Motion") relies largely on an affidavit attached to its answer which factually disputes the well-pleaded allegations of the Second Amended Complaint, which must be taken as true, its Motion merely demonstrates the existence of disputed issues of fact, and for that reason, is denied. With respect to its Motion for Summary Judgment, the court is persuaded that Plaintiff is entitled to some opportunity for discovery before this matter is resolved. For this reason, that motion is also denied.
IQ Data has taken what might be called a kitchen sink approach to its motion, arguing many things scrambled together in a way that makes isolating the issues and deciding them challenging, particularly insofar as it switches back and forth between disputed and undisputed facts. To the extent the court has accurately disentangled the issues, the following four issues emerge, which can be easily dealt with:
(1) IQ Data argues that it is entitled to judgment on the pleadings because its affidavit attached to its answer establishes that it failed to receive the entirety of Plaintiff's April 21, 2014 fax transmission. In the face of the Second Amended Complaint which alleges that a fax was sent to IQ Data, its answer merely shows that there is a factual dispute. The court is not free to ignore the well-pleaded allegations of the Second Amended Complaint and resolve the case on the basis of IQ Data's contrary affidavit. It is well-established that a motion for judgment on the pleadings can succeed only if there are no material issues of fact to be resolved. Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998).
Plaintiff is entitled to test Defendant's assertion that the entire fax was not received and to examine what could cause half a fax to disappear. Further, Plaintiff is entitled to examine why Defendant, if it received only half a fax, took no action to figure out what happened to the other half. Given that the partial fax which IQ Data admits receiving showed both the debtor's name and that it came from Debtors Legal Clinic, identified in the partial fax as a "non-profit legal services organization," the court cannot say at this point that IQ Data's entitlement to judgment is clear. Once Plaintiff has had an opportunity to test the assertions in the O'Meara affidavit, it will be time for Plaintiff to come forward with support for his allegations or risk having judgment entered against him. That time is not now.
(2) IQ Data argues that a letter stating that a debt is "inaccurate" does not indicate that the debt is disputed, as required by 15 U.S.C. §1692g(b). IQ Data cites no authority for the proposition that the word "dispute" must be used. It seems to the court so dubious an assertion, that, in the absence of any controlling or even persuasive authority, it is rejected. It is hard to figure out what it means to complain that a debt is "inaccurate" without disputing the amount of the debt. IQ Data has not pointed to cases indicating that the word "dispute" must be used. As Plaintiff has pointed out, a recent decision by Judge Kendall of this court holds that a letter stating that the debt "is not accurate" is sufficient to constitute notice of a dispute. Emerson v. Fidelity Capital Holdings, 2015 WL 5086458, *2 (N.D. Ill. Aug. 14, 2015).
(3) IQ Data also argues, without authority, that a letter sent by the debtor's lawyer rather than by the debtor is insufficient to satisfy the statutory requirement that the consumer must notify the debt collector in writing that the debt is disputed. Again, this proposition seems to run contrary to established principles of agency and to interfere with an attorney's ability to represent a consumer client. In the absence of any authority, the court rejects it.
(4) Finally, IQ Data argues that "any alleged misrepresentation to Trans Union on September 4, 2014 was not material." (Mem. in Support of Motion at 10). This proposition--IQ Data's failure to communicate to Trans Union that the debt was disputed--is plainly wrong. See, e.g., Hoffman v. Partners in Collections, Inc., 1993 WL 358158, at *4 (N.D. Ill. Sept. 14, 1993). But IQ Data barely argues this point, despite the above heading in its Motion. What IQ Data argues is that a failure to disclose a dispute is not material if there is no actual debt and the consumer must establish a material dispute. But the relevant statute, 15 U.S.C. §1692e(8), says merely that there is an obligation to communicate the existence of a dispute, not that a dispute need not be reported if the dispute is not meritorious. Indeed, in support of its argument, IQ Data cites not cases dealing with what a consumer must tell a debt collector, but it cites authority concerning what a debt collector must tell a consumer reporting agency, a completely different issue.
IQ Data also argues that cases require the consumer to prove a material dispute. That may or may not ultimately be the case, but it is certainly not the case at the pleading stage. Insofar as IQ Data is making this argument in support of its summary judgment motion (the court cannot discern what arguments are made in support of which part of the motion), the court is persuaded that Plaintiff is entitled to discovery before the case is resolved on the merits.
A more substantial argument made by IQ Data is that Plaintiff's fax advising it of a dispute in the amount of the debt was not timely. IQ Data asserts, and Plaintiff does not quarrel with the assertion, that IQ Data sent Plaintiff a letter informing him of his rights under 15 U.S.C. §1692g on October 12, 2010, and heard nothing from Plaintiff until it received a fax (or a partial fax) from Debtors Legal Clinic on April 21, 2014. IQ Data cites a number of cases which suggest that failing to notify the debt collector in writing within 30 days of receiving a collection notice that the debt is disputed either prevents the debtor from later claiming a violation of §1692g or prevents the debtor from complaining of a violation in the period before the notice was sent. Plaintiff responds, however, that it is not relying on the statute at issue in the cases IQ Data cites--15 U.S.C. §1692g(b) (which contains the 30 day written notification requirement)—but rather 15 U.S.C. §1692e(8), which contains no requirement of any notification by the debtor to the debt collector. Section 1692e(8) merely prohibits a debt collector from communicating information "which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed." 15 U.S.C. §1692e(8). A First Circuit case cited by Plaintiff held the following: [In contrast to §1692g(b),] "§1692e(8) does not affect debt collection practices at all. . . . Instead, §1692e(8) merely requires a debt collector who knows or should know that a given debt is disputed to disclose its disputed status to persons inquiring about a consumer's credit history. . . .Given the much more limited effect of this provision, Congress's decision not to condition its exercise on the submission of written notification makes logical sense." Brady v. The Credit Recovery Company, Inc., 160 F.3d 64, 67 (1st Cir. 1998).
As far as the court can discern, Plaintiff is correct. Section 1692e(8) does not contain a 30 day requirement or indeed any requirement of action on the part of the debtor; thus, on this basis, IQ Data is not entitled to judgment on the pleadings. Moreover, given what IQ Data has asserted as its lack of knowledge that Plaintiff was disputing the debt, it is clear that what IQ Data knew or should have known will be a disputed issue. Since it is obvious that Plaintiff will need discovery to test what IQ Data knew and when it knew it, this is not an issue which can be resolved before discovery, and summary judgment, at this early stage of the case, is clearly inappropriate.
IQ Data's Motion for Judgment on the Pleadings Pursuant to Fed. R. Civ. P. 12(c) or Alternatively Summary Judgment Pursuant to Fed. R. Div. P. 56 is denied. Plaintiff's Motion to Continue or Stay Defendant's Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56(D) is granted. The court will work with the parties to attempt to sequence discovery to try to reach as quickly as possible the issues that IQ Data argues can be quickly resolved. Date: November 4, 2015
/s/_________
Joan B. Gottschall
United States District Judge