Infante v. Portfolio Recovery Associates, LLC

Northern District of Illinois, ilnd-1:2016-cv-06926

MEMORANDUM Order: Because a review of the Complaint poses a seriousquestion as to its viability, this memorandum order is issued sua sponte to address that subject. Signed by the Honorable Milton I. Shadur on 7/7/2016:Mailed notice

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Case: 1:16-cv-06926 Document #: 5 Filed: 07/07/16 Page 1 of 6 PageID #:21 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION VICTORIA INFANTE,)) Plaintiff,)) v.) Case No. 16 C 6926) PORTFOLIO RECOVERY) ASSOCIATES, LLC,)) Defendant.) MEMORANDUM ORDER This Court has just received delivery of a courtesy copy of the July 1, 2016 Complaint brought by Victoria Infante ("Infante") against Portfolio Recovery Associates, LLC ("Portfolio"), in which Infante charges Portfolio with an asserted violation of a provision of the Fair Debt Collection Practices Act (the "Act"). 1 Because a review of the Complaint poses a serious question as to its viability, this memorandum order is issued sua sponte to address that subject. For a full understanding of the potential problem posed by the Complaint and to make this memorandum order self-contained in that respect, copies of two of the Complaint's exhibits -- Ex. C, a copy of a short June 23, 2015 letter from Infante to Portfolio, and Ex. D, a copy of Portfolio's July 2, 2015 response -- are attached. As for Infante's letter, it is clearly a response to a debt collection effort by Portfolio (this Court of course credits Infante's self-characterization as a "consumer" under the Act and the __________________________ 1 Citations to the Act will take the form "Section --," omitting the prefatory "15 U.S.C." portion of a full statutory citation. Case: 1:16-cv-06926 Document #: 5 Filed: 07/07/16 Page 2 of 6 PageID #:22 Complaint's characterization of Portfolio as a "debt collector" under the Act. But it is equally plain that Portfolio's responsive communication was solely in response to one of the matters that Infante's letter asserted. In that respect Complaint ¶ 14 refers accurately to Infante having "disputed the alleged debt" -- but having done so, her counsel ascribes no significance to what Complaint ¶ 17 accurately reports as the further content of Infante's communication: Plaintiff's letter also stated in part that the amount PRA [the Complaint's acronym reference to Portfolio] was reporting was not accurate. Note then the nature and content of Portfolio's response. It is devoted entirely to an inquiry as to just what was the nature of Infante's dispute as to the accuracy of Portfolio's earlier communication regarding the account that it had purchased from Synchrony Bank (the entity with which Infante had dealt directly). And there is frankly no way in which that inquiry could be considered by anyone -- even the "unsophisticated consumer" referred to in the caselaw -- as an effort to collect the debt. Just look at the three parts of the Portfolio response that confirm what has just been said (as shown here, the last quoted portion is entirely in boldface and the word "NOT" is entirely in capital letters): If you wish to dispute this account, please send written documentation describing the nature of your dispute and any information or materials that may be helpful to our investigation so this dispute may be investigated in a timely manner. * * * Please note that if we receive no information or documentation describing the details of your dispute by July 22, 2015, we may then terminate the investigation related to this account due to lack of clarification of the nature of the dispute. This is a communication from a debt collector. This communication is made for the limited purpose of responding to your dispute and NOT an attempt to collect at debt. -2- Case: 1:16-cv-06926 Document #: 5 Filed: 07/07/16 Page 3 of 6 PageID #:23 This Court has reviewed Section 1692c(c), sought to be invoked by Infante, and it appears that the Complaint is a real stretch of its provisions. In addition to Portfolio's emphatic and unequivocal statement that it was NOT attempting to collect the claimed debt, it had stated earlier in its letter that the absence of any responsive communication by Infante could result in Portfolio's termination of its investigation -- something that looked to the potential for a communication that would fit directly within Section 1692c(c)(1). This should not be misunderstood as an order dismissing the Complaint or this action. But although this Court is contemporaneously issuing its customary initial scheduling order, it expects Infante's counsel to be prepared at that time to address the concern voiced here. __________________________________________ Milton I. Shadur Senior United States District Judge Date: July 7, 2016 -3- Case: Case:1:16-cv-06926 1:16-cv-06926Document Document#:#:1-1 5 Filed: Filed:07/07/16 07/01/16Page Page46ofof69PageID PageID#:24 #:11 June 23, 2015 Portfolio Recovery Associates 120 Corporate Blvd. Norfolk, VA 23502 Re: Account # (SYNCHRONY BANK) Dear Sir or Madam: I am writing to you regarding the account referenced above. I refuse to pay this debt because my monthly expenses and income do not allow for payment, and the amount you are reporting is not accurate either. Thank you, Victoria Infante EX. C Case: Case:1:16-cv-06926 1:16-cv-06926Document Document#:#:1-1 5 Filed: Filed:07/07/16 07/01/16Page Page58ofof69PageID PageID#:25 #:13 EX. D Case: Case:1:16-cv-06926 1:16-cv-06926Document Document#:#:1-1 5 Filed: Filed:07/07/16 07/01/16Page Page69ofof69PageID PageID#:26 #:14