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

DENISE GARCIA, ) Plaintiff, v. No. 17 C 881

MIRAMED REVENUE GROUP, LLC, ) Defendant. )

MEMORANDUM OPINION SAMUEL DER-YEGHIAYAN, District Judge This matter is before the court on Plaintiff Denise Garcia’s (Garcia) motion for summary judgment and on Defendant Miramed Revenue Group, LLC’s (Miramed) motion for summary judgment. For the reasons stated below, Garcia’s motion for summary judgment is granted in part and denied in part, and Miramed’s motion for summary judgment is granted in part and denied in part.

BACKGROUND Garcia allergy owed a debt (Debt) for a defaulted Community First Medical Center consumer medical account. Miramed is allegedly a debt collector that tried

to collect the Debt from Garcia. In June 2016, Miramed allegedly sent Garcia a collection letter (Letter) as an initial communication. In the Letter Garcia was

allegedly informed that the remaining balance owed was $100. However, the

accounting statement included with the Letter allegedly indicated that $1,905.82 was

still owed. Garcia contends that Miramed failed to provide notice of the amount of

the Debt when it communicated varying amounts owed to Garcia. Garcia includes in

her complaint a claim alleging a violation of the Fair Debt Collection Practices Act

(FDCPA),

ef seq. (Count I), and a claim alleging a violation of the

Illinois Collection Agency Act (ICAA), 225 ILCS 452/1 et seq. (Count II), Garcia

and Miramed now each move for summary judgment.

LEGAL STANDARD Summary judgment is appropriate when the record, viewed in the light most

favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); Smith v. Hope School,

(7th Cir. 2009), A “genuine

issue” in the context of a motion for summary judgment is not simply a

“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Lid. v.

Zenith Radio Corp.,

(1986). Rather, a genuine issue of material

fact exists when “the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 248

(1986); Insolia v. Phillip Morris, Inc.,

, 599 (7th Cir. 2000). In ruling

on a motion for summary judgment, the court must consider the record as a whole, in

a light most favorable to the non-moving party, and draw all reasonable inferences in

favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens

Transport Co.,

(7th Cir. 2000). When there are cross motions for

summary judgment, the court should “construe the evidence and all reasonable

inferences in favor of the party against whom the motion under consideration is

made.” Premcor USA, Inc. v. American Home Assurance Co.,

(7th Cir, 2005).

DISCUSSION

FDCPA Claim Miramed argues that it did not fail to provide notice as required under the

FDCPA and that even if it did fail to do so, it is protected by the bona fide error

defense.

A. Compliance with Notice Requirement Garcia argues that Miramed failed to comply with its obligation under the

EDCPA to provide notice of the Debt to Garcia, The FDCPA provides in part 15

U.S.C. § 1692g, that “[w]ithin five days after the initial communication with a

consumer in connection with the collection of any debt, a debt collector shall, unless

the following information is contained in the initial communication or the consumer

has paid the debt, send the consumer a written notice containing—.. . the amount of

the debt... 15 U.S.C. § 1692g(1). In determining whether a debt collector

provided false or misleading information in violation of the FDCPA, the court

should employ the objective unsophisticated consumer standard. Gruber v. Creditors' Prot. Serv., Inc.,

(7th Cir. 2014), It is undisputed that

in the Letter Miramed informed Garcia that the “Amount Due” and the “Remaining

Patient Balance” was $100.00. Yet it is further undisputed that the Letter also

contained an “accounting of the patient” for the “Remaining Patient Balance” that

indicated that the “Total Charges” were $3,665.00, and that the only payments so far

had been $1,759.18 which had been paid by insurance. Presented with such

information a reasonable consumer would not be certain whether the consumer owed

$100.00 or $1,905.82. It is undisputed that even though Miramed represented in the

Letter that the “Remaining Patient Balance” was $100.00, Garcia in fact owed the

$1,905.82. The Seventh Circuit has stated that an initial debt collection letter must

state the debt “clearly enough that the recipient is likely to understand it.” Chuway

vy. Nat'l Action Fin. Servs., Inc.,

(7th Cir. 2004), Based on the

inconsistent information provided in the Letter an unsophisticated consumer would

not understand what amount was still owed on the Debt. Even an unsophisticated

consumer would be able to add or use a calculator and discern the inconsistencies in

the Letter. See Gruber,

(stating that “Cajithough the hypothetical

unsophisticated consumer is not as learned in commercial matters as are federal

judges, he is not completely ignorant either’). Miramed contends that it was truthful to state that Garcia owed $100 even if

she may have owed more as well. Miramed was obligated, however, to give notice

of the entire Debt, Also, by stating that the “Remaining Patient Balance” was $100, Miramed implied that nothing more was owed. Based on such undisputed facts, Miramed failed to comply with notice requirements in Section 1962g in regard to

notice of the amount of the Debt.

B. Bona Fide Error Defense Miramed argues that even if it failed comply with the FDCPA notice

requirement, Miramed is protected by the bona fide error defense. The FDCPA

provides that “[a] debt collector may not be held liable in any action brought under

this subchapter if the debt collector shows by a preponderance of evidence that the

violation was not intentional and resulted from a bona fide error notwithstanding the

maintenance of procedures reasonably adapted to avoid any such error.” 15 U.S.C. § 1692k(c). Miramed argues that it merely presented the Debt base upon the account

information provided by the creditor and that it has procedures in place to ensure

that accurate information is provided to debtors. Whether or not the creditor gave information concerning payments made, is irrelevant. Miramed may not have

intentionally and wilfully violated the FDCPA, but the undisputed facts show that

Miramed intentionally chose to present the conflicting information concerning the

amount of the Debt believing it to be compliant with the law. See Leed v. Nationwide Credit Corp.,

(7th Cir. 2015)(stating that “liability is

not confined to willful violations”); Flores v. Portfolio Recovery Assocs., LLC,

, at *5 (N.D. II. 2017\(stating that bona fide error “defense is limited to factual or clerical mistakes, and does not shield mistaken applications of the law”)(citing Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 US.

573, 577 (2010)). Miramed is thus not entitled to prevail based on the bona fide

error defense. Based on the above, Garcia’s motion for summary judgment on the

FDCPA claim is granted and Miramed’s motion for summary judgment on the FDCPA claim is denied.

I. ICAA Claim Miramed argues that there is no private right of action under the ICAA. Garcia acknowledges that the Illinois Supreme Court has not recognized such a

private right of action. Nor has Garcia cited any cases in which such a right has

been recognized. This court declines to recognize such a cause of action under the

ICAA. Therefore, Miramed’s motion for summary judgment on the ICAA claim is

granted and Garcia’s motion for summary judgment on the ICAA claim is denied.

CONCLUSION Based on the above, Garcia’s motion for summary judgment on the FDCPA claim is granted and Miramed’s motion for summary judgment on the FDCPA claim is denied. Miramed’s motion for summary judgment on the ICAA claim is granted and Garcia’s motion for summary judgment on the ICAA claim is denied.

Se taracke Dw o 4 abe ey le oh, Samuel Der-Yeghiayait United States District Court Judge

Dated: January 30, 2018