Opinion
Case No. 03 C 1017
September 23, 2003
MEMORANDUM OPINION AND ORDER
On August 25, 2003, the Court granted summary judgment in favor of defendants in this action under the Fair Debt Collection Practices Act. The Court's decision is reported at 2003 WL 22012229. Familiarity with that decision is assumed.
Plaintiff Cecil Smith has moved for reconsideration, arguing that the Court erred in interpreting the statement in defendant GC Services' dunning letter that the stated "balance due" might not include "accrued but unposted interest." We believed that the term referred to "future interest accruing prior to payment," which was likely to be an insignificant item. This belief was a material aspect of our conclusion that the letter correctly stated "the balance due as of the date of the letter."
Smith points out that the use of the term "accrued" ordinarily would be expected to refer not to future interest, but to interest that had already accrued. Upon further reflection, the Court agrees with Smith and therefore concludes that we made an unwarranted assumption in interpreting the letter.
This does not, however, entitle Smith to entry of summary judgment in his favor. The parties offer two possibilities for what GC meant when it used the term "accrued but unposted interest." Smith argues that the term referred to interest that had accrued prior to the date of the letter which the debtor already owed but which was not included in the "balance due." GC argues that it referred not to interest that had accrued as of the date of the letter, but to interest that accrued between the time the letter was sent and its receipt by Smith. On the present record, we cannot say which (if either) of these possibilities is correct, as the parties have offered no evidence on the point. Nor are we in a position to determine whether the amount of "accrued but unposted interest" was at all significant in dollar terms. Without evidence on these points, the Court must conclude that genuine issues of material fact remain and that neither side is entitled to summary judgment. Smith is, however, entitled to an order vacating the entry of judgment against him.
Conclusion
For the reasons stated above, the Court grants plaintiff's motion for reconsideration [docket #24-1]. The judgment entered by the Court on August 27, 2003 is vacated. The case is reinstated. A status hearing is set for October 6, 2003 at 9:30 a.m. to address how the case should proceed from here.