No. 1-14-3922 Fifth Division March 4, 2016

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

) HBLC, INC., ) ) Plaintiff and Counterdefendant-Appellee, ) Appeal from the Circuit Court ) of Cook County. v. ) ) No. 12 M1 105690 DANNY EGAN, Individually and on Behalf of the Class ) Defined Below, ) The Honorable ) Kathleen Kennedy, Defendant and Counterplaintiff-Appellant ) Judge Presiding. ) (Steven J. Fink & Associates, P.C., ) Counterdefendant-Appellee). ) ) ______________________________________________________________________________

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶1 The instant appeal arises from a debt collection lawsuit filed by plaintiff HBLC, Inc.

(HBLC), which sought to collect on an unpaid credit card account that defendant Danny

Egan claimed had been opened fraudulently. Egan filed a class action counterclaim, which

alleged that HBLC and counterdefendant Steven J. Fink & Associates, P.C. (Fink), violated

the federal Fair Debt Collection Practices Act (FDCPA) (

et seq. (2012))

and the Illinois Collection Agency Act (225 ILCS 425/1 et seq. (West 2012)) by filing time- No. 1-14-3922

barred lawsuits for the collection of debts that were beyond the statute of limitations. The

trial court dismissed Egan’s counterclaim under section 2-615 of the Code of Civil Procedure

(735 ILCS 5/2-615 (West 2012)) and, for the reasons that follow, we reverse.

¶2 BACKGROUND

¶3 On January 26, 2012, HBLC filed a verified complaint against Egan, alleging that Egan

opened a Credit One Bank credit card account but failed to make monthly payments due on

the account. The complaint alleged that “pursuant to the Affidavit attached hereto as Exhibit

‘1’ there is due to Plaintiff from the Defendant, as of the filing date of this complaint, the

sum of $2545.84 (which includes $350 as reasonable attorneys’ fees as permitted by the

Cardmember Agreement) plus court costs as permitted by the Cardmember Agreement and

as permitted by statute plus post-judgment interest at the rate allowed by law until the debt is

paid.”

¶4 On February 16, 2012, Egan filed an answer, affirmative defenses, and class action

counterclaim. Egan denied the allegations of the complaint and alleged that the debt at issue

was opened fraudulently using Egan’s personal information without his knowledge or

authorization. Egan raised as an affirmative defense “failure to state a claim/statute of

limitations,” in which he alleged that his credit report indicated that the date of last activity

on the alleged debt was September 14, 2006, meaning that the filing of a lawsuit to collect

the debt was time-barred because the five-year statute of limitations had run at the time of the

filing of the complaint.

¶5 Egan also included a class action counterclaim against HBLC and the law firm of Steven

J. Fink & Associates, P.C. (Fink), alleging that HBLC and Fink had violated the FDCPA (

et seq. (2012)) and the Collection Agency Act (225 ILCS 425/1 et seq. (West

2 No. 1-14-3922

2012)) by filing time-barred lawsuits for the collection of debts that were beyond the statute

of limitations.

¶6 The counterclaim alleged that on October 7, 2011, Egan obtained a copy of his personal

credit report and discovered the existence of a credit card account from Credit One Bank

(Credit One), which Egan was unaware of and which had been opened without his

authorization. Egan contacted Credit One on October 17, 2011, to dispute the debt, and

Credit One responded by advising him that Credit One had sold the disputed account to

HBLC. On February 8, 2012, Egan received a summons and complaint alleging that a debt of

$2,545.84 was owed to HBLC as final transferee of Credit One; the complaint had been filed

on January 26, 2012, by Fink and was signed by Steven J. Fink. The counterclaim alleged

that Egan’s credit report indicated that Credit One had reported the last activity on the

account as occurring on September 14, 2006, meaning that at the time that HBLC and Fink

filed the lawsuit, the five-year statute of limitations had run and the action was consequently

time-barred. The counterclaim further alleged that “HBLC and Fink knew, or should have

known, that the five year statute of limitations had run on the alleged debt at the time they

caused the complaint to be filed.”

¶7 The counterclaim stated that Egan was bringing the class action counterclaim on behalf

of three classes. The “HBLC FDCPA Class” consisted of “(a) all natural persons residing in

Illinois (b) against whom HBLC, Inc. filed a lawsuit to collect a credit card debt (c) where

the date of last activity on such account was more than five years prior to the date of filing

(d) between a date of one year prior to and 20 days after the filing of this counter-claim.” The

“HBLC ICAA Class” consisted of “(a) all natural persons residing in Illinois (b) against

whom HBLC, Inc. filed a lawsuit to collect a credit card debt (c) where the date of last

3 No. 1-14-3922

activity on such account was more than five years prior to the date of filing (d) between a

date of five years prior to and 20 days after the filing of this counter-claim.” The “Fink

FDCPA Class” consisted of “(a) all natural persons residing in Illinois (b) against whom

Steven J. Fink & Associates, P.C. filed a lawsuit to collect a credit card debt (c) where the

date of last activity on such account was more than five years prior to the date of filing (d)

between a date of one year prior to and 20 days after the filing of this counter-claim.” The

counterclaim alleged that HBLC had filed over 1,000 consumer debt collection lawsuits

between 2011 and 2012 in the circuit court of Cook County alone, and that Fink had filed

each of those lawsuits on HBLC’s behalf and had represented HBLC in the lawsuits.

¶8 Count I of the counterclaim was for violations of the FDCPA and alleged that HBLC and

Fink violated the FDCPA by “falsely representing the legal status of the debt in the

complaint filed on January 26, 2012,” and by “using unfair and deceptive means to attempt to

collect a debt, namely by falsely representing that Counter-Plaintiff was obligated to repay

the original Credit One Bank debt, when in fact that remedy was extinguished by operation

of law, thus suing on a time-barred debt.” Count I further alleged that as a result of the

FDCPA violations, HBLC and Fink were liable to Egan and the classes for actual damages,

statutory damages of $500,000 each, and costs and attorney fees.

¶9 Count II of the counterclaim was for violations of the Collection Agency Act, which

alleged that the Collection Agency Act prohibited a collection agency from attempting or

threatening to enforce a right or remedy with knowledge or reason to know that the right or

remedy does not exist and further prohibited a collection agency from misrepresenting the

amount owed and from collecting or attempting to collect any amount not authorized by law.

Count II further alleged that “[w]ith respect to counter-plaintiff, HBLC attempted to enforce

4 No. 1-14-3922

a remedy they had reason to know did not exist, misrepresented the amount legally owed,

and attempted to collect an amount unauthorized by law in violation of the [Collection

Agency Act] when they caused to be filed a time-barred lawsuit for the collection of a debt

when the statute of limitations had already run.” Count II requested judgment in favor of

Egan and the classes for actual damages, punitive damages, and costs and attorney fees.

¶ 10 On February 16, 2012, on the same day as the filing of his answer, affirmative defenses,

and class action counterclaim, Egan filed a motion for class certification on his counterclaim.

¶ 11 On March 13, 2012, Egan filed a motion to transfer the case from the first municipal

division to the chancery division of the circuit court because his counterclaim sought class

certification. On May 18, 2012, the case was reassigned to the chancery division.

¶ 12 On September 14, 2012, HBLC filed its answer and affirmative defenses to Egan’s class

action counterclaim. Also on September 14, 2012, Fink filed its answer and affirmative

defenses to Egan’s class action counterclaim.

¶ 13 On November 14, 2012, the trial court gave Egan leave to file amended affirmative

defenses and an amended counterclaim, which Egan filed on November 28, 2012. In his

amended class action counterclaim, Egan added allegations that HBLC failed to provide

valid assignments to establish its ownership of the debt or to otherwise establish a chain of

title. The amended counterclaim alleged that HBLC first filed documentation of the alleged

assignments of the debt when it attached them to a motion to compel arbitration; HBLC did

not attach them to its complaint. Furthermore, the amended counterclaim alleged that the

attached documents did not comply with the requirements of the Collection Agency Act, so

HBLC had not established that it owned the alleged debt that it was attempting to collect.

5 No. 1-14-3922

¶ 14 The amended counterclaim identified five classes, as opposed to the original

counterclaim’s three classes. The “HBLC ICAA-Assignment Class” consisted of “(a) all

natural persons residing in Illinois (b) against whom HBLC, Inc. filed a lawsuit to collect a

debt incurred for personal, family, or household purposes (c) where no assignment was

attached to the complaint or where the attached assignment does not include the effective

date of the assignment, the consideration for the assignment, or identifying information for

the account that is being assigned (d) between February 16, 2007 and March 7, 2012.”

¶ 15 The “HBLC FDCPA-Assignment Class” consisted of “(a) all natural persons residing in

Illinois (b) against whom HBLC, Inc. filed a lawsuit to collect a debt incurred for personal,

family, or household purposes (c) where no assignment was attached to the complaint or

where the attached assignment does not include the effective date of the assignment, the

consideration for the assignment, or identifying information for the account that is being

assigned (d) between February 16, 2011 and March 7, 2012.”

¶ 16 The “HBLC ICAA-Statute of Limitations Class” consisted of “(a) all natural persons

residing in Illinois (b) against whom HBLC, Inc. filed a lawsuit to collect a credit card debt

(c) where the date of last activity on such account was more than five years prior to the date

of filing (d) between February 16, 2007 and March 7, 2012.”

¶ 17 The “HBLC FDCPA-Statute of Limitations Class” consisted of “(a) all natural persons

residing in Illinois (b) against whom HBLC, Inc. filed a lawsuit to collect a credit card debt

(c) where the date of last activity on such account was more than five years prior to the date

of filing (d) between February 16, 2011 and March 7, 2012.”

¶ 18 Finally, the “Fink FDCPA-Statute of Limitations Class” consisted of “(a) all natural

persons residing in Illinois (b) against whom Steven J. Fink & Associates, P.C. filed a

6 No. 1-14-3922

lawsuit to collect a credit card debt (c) where the date of last activity on such account was

more than five years prior to the date of filing (d) between February 16, 2011 and March 7,

2012.”

¶ 19 The amended counterclaim added allegations to count I, concerning the FDCPA, that

alleged that HBLC and Fink violated the FDCPA by “threatening to take action that could

not legally be taken because the [Collection Agency Act] prohibited HBLC from filing the

complaint without valid assignments.”

¶ 20 The amended count II was against HBLC and alleged a violation of the Collection

Agency Act due to the lack of valid assignments. The amended count II alleged that “HBLC

filed lawsuits that were prohibited by the [Collection Agency Act] because it did not attach to

the complaint, nor even have, valid assignments to establish its ownership of the debt or

otherwise establish a chain of title. With each complaint filed, HBLC misrepresented to

consumers and courts that it had the right to file those lawsuits,” thereby violating the

Collection Agency Act. Count II further alleged that “HBLC engaged in such conduct for the

purpose of depriving Egan and the class members of their money.” Count II requested

judgment in favor of Egan and the ICAA Assignment classes for actual damages, punitive

damages, and costs and attorney fees.

¶ 21 The amended count III was essentially identical to count II of the original complaint, for

violations of the Collection Agency Act on the basis of filing suit to collect a time-barred

debt, except that it added the allegation that “HBLC engaged in such conduct for the purpose

of depriving Egan and the class members of their money.”

¶ 22 On February 27, 2014, HBLC and Fink filed a motion to dismiss Egan’s amended

counterclaim pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS

7 No. 1-14-3922

5/2-615 (West 2012)). The motion claimed that Egan’s claims under the Collection Agency

Act should be dismissed because there was no private right of action available to Egan. As to

Egan’s claims under the FDCPA, the motion claimed that the FDCPA was based on the same

facts and legal theories as the Collection Agency Act claims, so “[s]ince the [Collection

Agency Act] claims should be dismissed, the FDCPA claims should too.” The motion further

claimed that “the FDCPA cannot be used as a vehicle to dictate the content of state court

pleadings.” Finally, the motion claimed that the amended counterclaim did not allege any

false statements or misrepresentations, and only alleged the date of last activity on the

account to support the “time barred debt theory.”

¶ 23 On July 22, 2014, the trial court entered an order granting HBLC and Fink’s motion to

dismiss and dismissed Egan’s amended class action counterclaim in its entirety. With respect

to the FDCPA claims in count I of the counterclaim that were based on the statute of

limitations, the court found that “HBLC and Fink persuasively argued that the other FDCPA

claims cannot survive because they are based on representations made to the state court by

Fink when the collection complaint was filed. The Court [also found], as HBLC and Fink

argued, that because the FDCPA doesn’t cover the procedure or content of state court

complaints to collect a debt, the FDCPA claims must be dismissed with prejudice.” Egan

filed a motion for reconsideration of his FDCPA claim, 1 which was denied on December 3,

2014. Egan timely appealed, and this appeal follows.

¶ 24 ANALYSIS

¶ 25 On appeal, Egan is challenging only the dismissal of count I of his counterclaim, the

FDCPA claim. The trial court dismissed this count pursuant to section 2-615 of the Code. A

1 Egan did not seek reconsideration of the two counts of the amended class action counterclaim concerning the Collection Agency Act, nor are those counts at issue on appeal.

8 No. 1-14-3922

motion to dismiss under section 2-615 of the Code challenges the legal sufficiency of the

complaint by alleging defects on its face. Young v. Bryco Arms,

(2004);

Wakulich v. Mraz,

(2003). The critical inquiry is whether the allegations

in the complaint are sufficient to state a cause of action upon which relief may be granted.

Wakulich,

. In making this determination, all well-pleaded facts in the

complaint, and all reasonable inferences that may be drawn from those facts, are taken as

true. Young,

. In addition, we construe the allegations in the complaint in the

light most favorable to the plaintiff. Young,

. We review de novo an order

granting a section 2-615 motion to dismiss. Young,

; Wakulich,

. De novo consideration means we perform the same analysis that a trial judge would

perform. Khan v. BDO Seidman, LLP,

(2011). We may affirm on

any basis appearing in the record, whether or not the trial court relied on that basis or its

reasoning was correct. Ray Dancer, Inc. v. DMC Corp.,

(1992).

¶ 26 In the case at bar, the trial court dismissed count I of Egan’s amended class action

counterclaim because the allegations of the complaint were “based on representations made

to the state court by Fink when the collection complaint was filed” and further found that

count I should be dismissed “because the FDCPA doesn’t cover the procedure or content of

state court complaints to collect a debt.” Egan argues that both of these findings were

erroneous, and argues that he stated a cause of action sufficient to withstand dismissal under

section 2-615.

¶ 27 On appeal, HBLC and Fink do not dispute that a lawyer engaged in debt collection can be

a debt collector within the meaning of the FDCPA, nor do they dispute that a state court

pleading can violate the FDCPA if the pleading contains false representations about a debt.

9 No. 1-14-3922

Instead, they argue that “Egan has never claimed that there is any false or misleading

statement on the face of the HBLC collection complaint filed against Egan. There is not.”

The focus of Egan’s counterclaim is his allegation that HBLC and Fink filed the debt

collection complaint against Egan while knowing that the five-year statute of limitations on

the debt at issue had elapsed. The question presented to us on appeal, then, is whether

knowingly filing a time-barred complaint in an Illinois court can be the basis for a FDCPA

action. We agree with Egan that it can.

¶ 28 In the case at bar, Egan’s amended class action counterclaim alleges that HBLC and Fink

violated sections 1692e(2)(A), 1692e(10), and 1692f(1) of the FDCPA. Section 1692e

provides that “[a] debt collector may not use any false, deceptive, or misleading

representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e

(2012). Specifically, section 1692e provides a list of conduct that “is a violation of this

section” (15 U.S.C. § 1692e (2012)), including “[t]he false representation of *** the

character, amount, or legal status of any debt” (15 U.S.C. § 1692e(2)(A) (2012)), and “[t]he

use of any false representation or deceptive means to collect or attempt to collect any debt”

(15 U.S.C. § 1692e(10) (2012)). Section 1692f provides that “[a] debt collector may not use

unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f

(2012). Additionally, section 1692f provides a list of conduct that “is a violation of this

section” (15 U.S.C. § 1692f (2012)), including “[t]he collection of any amount (including

any interest, fee, charge, or expense incidental to the principal obligation) unless such

amount is expressly authorized by the agreement creating the debt or permitted by law” (15

U.S.C. § 1692f(1) (2012)). Egan argues that knowingly filing a complaint concerning a debt

on which the statute of limitations has passed is a violation of the FDCPA.

10 No. 1-14-3922

¶ 29 In dismissing Egan’s counterclaim, the trial court solely relied on Gibbs v. Blitt &

Gaines, P.C.,

, a recent case from this court considering the

dismissal of a FDCPA claim. In that case, the creditor filed suit against the debtor, even

though at the time the complaint was filed, the creditor was not an Illinois-licensed debt

collection agency. Gibbs,

. The case was settled, but the debtor

later filed a complaint in the circuit court of Cook County alleging that the law firm filing the

suit had violated the FDCPA by filing suit on behalf of unlicensed collection agencies.

Gibbs,

. The trial court dismissed the complaint under section

2-615, and we affirmed.

¶ 30 In affirming the dismissal, we noted that that the debtor argued that the law firm had

violated the FDCPA by filing suit on behalf of an unlicensed debt collection agency in

violation of the Collection Agency Act. Gibbs,

. We found,

however, that there was no violation of the Collection Agency Act, and therefore, there could

be no violation of the FDCPA. Gibbs,

.

¶ 31 We further explained that the FDCPA “ ‘was designed to provide basic, overarching rules

for debt collection activities; it was not meant to convert every violation of a state debt

collection law into a federal violation.’ ” Gibbs,

, ¶ 16 (quoting

Carlson v. First Revenue Assurance,

(8th Cir. 2004)). We also found

persuasive an unreported federal district court case from Indiana, in which the district court

found that section 1692e applied “ ‘to threats to take action that cannot legally be taken, but

not illegal actions actually taken.’ ” Gibbs,

, ¶ 17 (quoting Flick v.

American Acceptance Co., No. 3:11 CV 299,

, at *4 (N.D. Ind. Mar. 28,

2012)). Finally, we noted that “federal cases have held that the act of filing a debt collection

11 No. 1-14-3922

suit under various circumstances, without more, is not sufficient to state a claim under the

FDCPA.” Gibbs,

.

¶ 32 We cannot agree with the trial court or with HBLC and Fink that Gibbs controls the

instant case. First, unlike the debtor in Gibbs, Egan’s counterclaim does not base its FDCPA

claim on the existence of a Collection Agency Act violation. Instead, the allegation that

HBLC and Fink violated the FDCPA by knowingly filing a time-barred complaint is

independent from his claims under the Collection Agency Act. Next, while the precise

subsection of section 1692e at issue is not identified in Gibbs, we relied on the reasoning in

Fick, in which a section 1692e(5) violation was at issue. As the Fick court noted, “[b]y its

plain language, Section 1692e(5) does not prohibit the taking of an action that cannot legally

be taken. It only prohibits the ‘threat to take any action that cannot legally be taken or that is

not intended to be taken.’ ” Fick,

, at *4 (quoting 15 U.S.C. § 1692e(5)

(2012)). In the case at bar, by contrast, no section 1692e(5) violation is alleged. Instead,

Egan’s counterclaim alleges violations of sections 1692e(2)(A), 1692e(10), and 1692f(1),

none of which is limited to threats to take action. Finally, in Gibbs, we considered several

types of FDCPA lawsuits to conclude that “federal cases have held that the act of filing a

debt collection suit under various circumstances, without more, is not sufficient to state a

claim under the FDCPA.” Gibbs,

. Here, by contrast, as we

explain below, federal courts have considered the specific issue of whether knowingly filing

a time-barred lawsuit can be a FDCPA violation, so we have no need to apply the more

general analysis. Accordingly, Gibbs does not dictate the result that applies to the situation at

issue in the instant case and we proceed to consider federal case law on this issue.

12 No. 1-14-3922

¶ 33 The FDCPA is a federal statute. “In construing a federal statute, we generally look to

federal decisions for [their] interpretation of the statutory provisions.” Melena v. Anheuser-

Busch, Inc.,

(2006). Accordingly, “[w]hen interpreting federal statutes,

we look to the decisions of the United States Supreme Court and federal circuit and district

courts.” State Bank of Cherry v. CGB Enterprises, Inc.,

. Our supreme

court has instructed that United States Supreme Court interpretation of federal law “is clearly

binding” on Illinois courts. State Bank of Cherry,

. However, “in the

absence of a United States Supreme Court decision, the weight this court gives to federal

circuit and district court interpretations of federal law depends on factors such as uniformity

of law and the soundness of the decisions.” State Bank of Cherry,

.

“While we are bound only by the United States Supreme Court, if the lower federal courts

are uniform on their interpretation of a federal statute, this court, in the interest of preserving

unity, will give considerable weight to those courts’ interpretations of federal law and find

them to be highly persuasive. [Citation.] However, if the federal courts are split, we may

elect to follow those decisions we believe to be better reasoned.” (Emphases in original.)

State Bank of Cherry,

.

¶ 34 In the case at bar, the most relevant United States Supreme Court decision is that of

Heintz v. Jenkins,

(1995). In that case, the Supreme Court considered whether

the term “debt collector,” as used in the FDCPA, applied to “a lawyer who ‘regularly,’

through litigation, tries to collect consumer debts.” (Emphasis in original.) Heintz,

. A unanimous Supreme Court concluded that it did.

¶ 35 The plaintiff in Heintz was a woman who had borrowed money from a bank to purchase a

vehicle and defaulted on her loan. Heintz,

. The bank’s law firm sued the

13 No. 1-14-3922

plaintiff in state court to recover the balance due and, as part of settlement negotiations, a

lawyer with the law firm sent the plaintiff a letter listing the amount the plaintiff allegedly

owed. Heintz,

. The plaintiff then filed suit against the lawyer and his firm,

alleging that the letter violated the FDCPA because it made a false representation of the

amount of the debt. Heintz,

.

¶ 36 The United States Supreme Court found that the FDCPA applied to “lawyers engaged in

litigation.” Heintz,

. The Court rejected all of the law firm’s arguments to the

contrary, noting that the firm’s arguments fell outside the range of reasonable interpretations

of the statutory language. Accordingly, the Court concluded that the FDCPA “applies to

attorneys who ‘regularly’ engage in consumer-debt-collection activity, even when that

activity consists of litigation.” Heintz,

.

¶ 37 HBLC and Fink argue that Heintz is inapposite, since Heintz involved the sending of a

letter, not the filing of a pleading, and further argue that Heintz never addressed whether the

act of filing a complaint by a licensed attorney could be the basis for a FDCPA claim. While

HBLC and Fink are correct in their recitation of the facts, Heintz is nevertheless instructive in

our analysis because the Supreme Court made it clear that the FDCPA applies to attorneys

involved in litigation activities, which would presumably include the actual litigation of

lawsuits. Indeed, one of the arguments that the Supreme Court rejected was the claim that if

the FDCPA applied to litigation activities, then section 1692e(5) “would make liable any

litigating lawyer who brought, and then lost, a claim against a debtor.” Heintz,

. Thus, it is apparent that the FDCPA would apply to the filing of a complaint, just as it

would apply to any other litigation activity.

14 No. 1-14-3922

¶ 38 Furthermore, although the United States Supreme Court has not addressed whether it is a

FDCPA violation to knowingly file a time-barred complaint, other federal courts have. For

instance, in Phillips v. Asset Acceptance, LLC,

(7th Cir. 2013), the

Seventh Circuit noted that the plaintiff’s suit “charges that [the defendant debt collector] sued

her after the statute of limitations on the creditor’s claim had run. If this is true, [the

defendant’s] suit violated the Fair Debt Collection Practices Act [citations].” The Seventh

Circuit explained the reason for “outlawing stale suits to collect consumer debts,” quoting

from an Alabama district court case:

“ ‘As with any defendant sued on a stale claim, the passage of time not only dulls the

consumer’s memory of the circumstances and validity of the debt, but heightens the

probability that she will no longer have personal records detailing the status of the

debt. Indeed, the unfairness of such conduct is particularly clear in the consumer

context where courts have imposed a heightened standard of care—that sufficient to

protect the least sophisticated consumer. Because few unsophisticated consumers

would be aware that a statute of limitations could be used to defend against lawsuits

based on stale debts, such consumers would unwittingly acquiesce to such lawsuits.

And, even if the consumer realizes that she can use time as a defense, she will more

than likely still give in rather than fight the lawsuit because she must still expend

energy and resources and subject herself to the embarrassment of going into court to

present the defense; this is particularly true in light of the costs of attorneys today.’ ”

Phillips,

(quoting Kimber v. Federal Financial Corp.,

(M.D. Ala. 1987)).

15 No. 1-14-3922

HBLC and Fink argue that Phillips, while “superficially lending some support to Egan’s

argument,” is inapposite because the question in that case was whether the district court had

erred in denying class certification and “[t]he opinion assumes that the filing of a time-barred

claim violates the FDCPA because that is what the plaintiff there alleged.” However, while

Phillips is concerned with the denial of class certification, the opinion does not merely

“assume” that there would be a violation because it is what the plaintiff alleged. Instead, the

Seventh Circuit clearly states that if the plaintiff’s allegations were correct, “[the

defendant’s] suit violated the Fair Debt Collection Practices Act.” Phillips,

.

The court cited the FDCPA and three cases in support of its statement. The court then

explained its statement through the quote we have excerpted above. This can hardly be

considered to be simply “assum[ing]” the plaintiff’s position was correct because it is what

the plaintiff alleged. The fact that this was a holding, not merely an assumption, is borne out

by the Seventh Circuit’s description of Phillips in Suesz v. Med-1 Solutions, LLC,

(7th Cir. 2014): “The FDCPA is designed to protect consumer debtors against

unscrupulous methods of consumer debt collection. Thus in Phillips *** we held that the Act

was violated by the disreputable tactic of suing a debtor after the statute of limitations has

expired; the debt collector hopes that the debtor will be unaware that he has a complete

defense to the suit and so will default, which will enable the debt collector to garnish the

debtor’s wages.”

¶ 39 Additionally, several other circuits have reached a similar result. “Federal circuit and

district courts have uniformly held that a debt collector’s threatening to sue on a time-barred

debt and/or filing a time-barred suit in state court to recover that debt violates §§ 1692e and

1692f.” Crawford v. LVNV Funding, LLC,

(11th Cir. 2014) (collecting

16 No. 1-14-3922

cases). As the Third Circuit explained, “the majority of courts have held that when the

expiration of the statute of limitations does not invalidate a debt, but merely renders it

unenforceable, the FDCPA permits a debt collector to seek voluntary repayment of the time-

barred debt so long as the debt collector does not initiate or threaten legal action in

connection with its debt collection efforts.” (Emphasis added.) Huertas v. Galaxy Asset

Management,

(3d Cir. 2011); see also Freyermuth v. Credit Bureau

Services, Inc.,

(8th Cir. 2001) (“[I]n the absence of a threat of litigation or

actual litigation, no violation of the FDCPA has occurred when a debt collector attempts to

collect on a potentially time-barred debt that is otherwise valid.” (Emphasis added.)). Thus,

while a creditor may attempt to collect a time-barred debt, it becomes a FDCPA violation to

initiate or threaten legal action to recover the debt. But see McMahon v. LVNV Funding,

LLC,

(7th Cir. 2014) (a debtor states a claim for a FDCPA violation

when it misleads an unsophisticated consumer to believe a time-barred debt is legally

enforceable, regardless of whether litigation is threatened). We further note that while HBLC

and Fink attempt to distinguish Egan’s citation to the numerous cases that have reached the

same result, they are unable to point to any cases in which a federal court has found that the

knowing filing of a time-barred complaint cannot be the basis for a FDCPA violation.

¶ 40 In the case at bar, HBLC and Fink filed a lawsuit to collect on a debt that Egan’s

counterclaim alleges they knew was time-barred. Taking the allegations of Egan’s

counterclaim as true, as we are required to do when reviewing the dismissal of a complaint

under section 2-615 of the Code (Young,

), Egan has sufficiently alleged a

violation of the FDCPA, at least at this early stage of the proceedings.

17 No. 1-14-3922

¶ 41 Furthermore, we find unpersuasive HBLC and Fink’s argument that there could be no

FDCPA violation because the content of the collection complaint itself did not contain any

misrepresentations. As our supreme court has recently noted in connection with the

Collection Agency Act, “[t]he suggestion that the ‘mere filing of a lawsuit’ cannot be abusive

is either naive or disingenuous.” LVNV Funding, LLC v. Trice,

, ¶ 25.

Additionally, on this point, we find instructive the reasoning in Goins v. JBC & Associates,

P.C.,

(D. Conn. 2005), in which the Connecticut district court

considered whether the threat to file a time-barred lawsuit violated the FDCPA. The

defendants in that case argued that the statute of limitations was merely an affirmative

defense that could be waived and it did not bar them from pursuing a lawsuit against the

plaintiff. Goins,

. The court rejected that argument, however, finding

that “[a]s the statute of limitations would be a complete defense to any suit, *** the threat to

bring suit under such circumstances can at best be described as a ‘misleading’ representation,

in violation of § 1692e.” Goins,

. The court noted that under Federal

Rule of Civil Procedure 11, the attorney “has an obligation to represent to the court to the

best of his knowledge, ‘after an inquiry reasonable under the circumstances,’ that the claims

presented are ‘warranted by existing law or by a nonfrivolous argument for the extension,

modification, or reversal of existing law of the establishment of new law’ ” and would be

subject to sanctions for knowingly filing an undisputedly time-barred lawsuit. Goins,

(quoting Fed. R. Civ. P. 11). The court stated that the fact that the statute of

limitations was an affirmative defense “does not relieve defendants of their professional

responsibility, when they do not dispute the applicability or viability of the defense.” Goins,

. Accordingly, because the defendants were not entitled to sue in such

18 No. 1-14-3922

circumstances, the district court found the threats to sue made by the defendants to be

improper. Goins,

.

¶ 42 Similarly, under Illinois Supreme Court Rule 137(a) (eff. July 1, 2013), the signature of

an attorney on a pleading “constitutes a certificate by him that he has read the pleading ***;

that to the best of his knowledge, information, and belief formed after reasonable inquiry it is

well grounded in fact and is warranted by existing law or a good-faith argument for the

extension, modification, or reversal of existing law, and that it is not interposed for any

improper purpose, such as to harass or to cause unnecessary delay or needless increase in the

cost of litigation.” Thus, the knowing filing of a time-barred lawsuit would be improper

where, as here, HBLC and Fink have not attempted to argue that there is a reason why their

claim is still viable.

¶ 43 We also find unpersuasive HBLC and Fink’s reliance on Harold v. Steel,

(7th Cir. 2014), which they use to argue that the Seventh Circuit has indicated that “FDCPA

§ 1692e ‘does not even hint that federal courts have been authorized to monitor how debt-

collection litigation is handled in state courts.’ ” (quoting Harold,

). Harold

involved a situation where the plaintiff filed a FDCPA suit in federal court to challenge a

state court garnishment order. Harold,

. The Seventh Circuit affirmed the

district court’s dismissal, agreeing with the district court that the claim was barred by the

Rooker-Feldman doctrine. Harold,

. Harold has nothing to do with the

question presented on appeal, namely, whether the knowing filing of a time-barred claim in

state court can be the basis for a FDCPA violation. Indeed, if anything, Harold’s final

paragraph actually provides support for Egan’s argument, not HBLC and Fink’s: “[The

plaintiff] might have used § 1692e to file a counterclaim in Indiana and could have appealed

19 No. 1-14-3922

within the state system. He did neither. His federal suit was properly dismissed.” Harold,

. In the case at bar, Egan did file a counterclaim and is proceeding within the state

system. Thus, Harold provides no support for HBLC and Fink’s argument.

¶ 44 In the case at bar, Egan alleges that HBLC and Fink violated the FDCPA by filing a debt-

collection complaint that they knew was time barred. Following the numerous federal court

cases that have found that such allegations can support a claim under the FDCPA, we reverse

the dismissal of Egan’s counterclaim under section 2-615 of the Code.

¶ 45 CONCLUSION

¶ 46 For the foregoing reasons, the trial court erred in dismissing count I of Egan’s amended

class action counterclaim under section 2-615 of the Code.

¶ 47 Reversed.

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