Sulaiman v. Biehl & Biehl, Inc.

OMAR SULAIMAN, Plaintiff, v. BIEHL & BIEHL, INC., Defendant.

No. 15 C 04518

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

September 30, 2016

Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER

Cases brought to enforce consumer rights established by statutes such as the Fair Debt Collection Practices Act ("FDCPA") are sometimes criticized as lawyer-driven vehicles that have more to do with efforts to obtain attorney's fees than they do with providing relief to the plaintiff-consumers. See, e.g., In re WorldCom, Inc. Sec. Litig., 219 F.R.D. 267, 285-286 (S.D.N.Y. 2003) ("the minimal recovery available to each plaintiff under the FDCPA creates legitimate concern regarding client control of the litigation"); Lynn A.S. Araki, Rx for Abusive Debt Collection Practices: Amend the FDCPA, 17 U. HAW. L. REV. 69, 108 (1995) ("Attorneys appear to be more interested in the mandatory statutory award of attorney's fees than they are in protecting the rights of consumers."). This case may add fuel to the fire; here, at least according to the defendant, the lawyer has dispensed with the plaintiff altogether—the attorney is the plaintiff. Omar Sulaiman, an attorney who specializes in consumer protection litigation, brings this action against Biehl & Biehl ("Biehl"), a debt collection agency, seeking to collect statutory damages and attorney's fees based on two communications he had with Biehl concerning a disputed $32 debt concerning a newspaper subscription. Both parties have filed summary judgment motions; for the following reasons, Sulaiman's motion is denied and Biehl's motion is granted.

BACKGROUND¹

Omar Sulaiman graduated from law school in May 2013. SSOF ¶ 16. He has worked in the area of consumer protection law since 2006 at Sulaiman Law Group, which his brother, Ahmad Sulaiman, founded. BSOF ¶¶ 25-26.² Attorneys from the Sulaiman firm represent the plaintiff in this action. On or about May 29, 2014, Sulaiman purchased a subscription for the Chicago Tribune newspaper from a door-to-door representative of the Tribune for $20.00. SSOF ¶ 6. The subscription order Sulaiman signed explains that he purchased a "continuous subscription but [that he] may cancel at any time . . . ." B Ex. B; see B Resp. ¶ 6. Sulaiman asserts that the Tribune representative informed him to the contrary, however, that after the six-month subscription expired, he would not be liable for any other fees to the Tribune and his subscription would be deemed completed. SSOF ¶ 7. Sulaiman received his last newspaper in November 2014. SSOF ¶ 8. Because he did not cancel the subscription or pay any additional amount, the Chicago Tribune placed a delinquent debt on his account and retained Biehl, a collection agency, to collect the debt. BSOF ¶¶ 38-39. Biehl has been handling collections for a variety of clients, including newspapers, healthcare organizations, transportation entities, manufacturers, and service providers, for about seventy-five years. BSOF ¶¶ 19, 23. Biehl is not a law firm nor does it employ any lawyers. SSOF ¶ 14.

On or about November 25, 2014, Sulaiman received a dunning letter from Biehl. SSOF ¶ 9. The letter is on Biehl & Biehl, Inc. letterhead and states, "Chicago Tribune Circulation has retained us to collect the amount of $32.25 you owe them." SSOF ¶¶ 9-10; Compl. Ex. A, ECF No. 15-1. The letter also states, "[t]his is a communication from a debt collector. This is an attempt to collect a debt." BSOF ¶ 41. Additionally, there is a box in the top right corner of the letter titled "DEBT INFORMATION" that contains the creditor (Chicago Tribune Circulation), account number, date, and balance owed. BSOF ¶ 43. The letter contains a seal in the bottom-right corner which states, "Commercial Law League of America, Agency [Action] Certified."³ B Resp. ¶ 11; B Ex. C. Aside from this letter, Biehl did not send any other letters or make any telephone calls to Sulaiman. BSOF ¶ 44.

Four months later, on March 25, 2015, Sulaiman called Biehl to inquire about the letter.⁴ SSOF ¶ 15. Sulaiman asked about the details of his Tribune subscription and asserted that the Tribune employee who sold him the subscription did not inform him that it would automatically renew for another cycle if it was not canceled. S Ex. F, ECF No. 26-6. At the end of the call, Sulaiman requested that Biehl not call him again and the Biehl employee stated, "[n]o sir. . . . as long as you're in collection, we're a collection agency. They placed you here, we have to call on it." S Ex. F. During the course of the call, Sulaiman did not inquire as to whether Biehl was a lawfirm. See S Ex. F. Biehl never called Sulaiman nor contacted him in any way after Sulaiman's phone call to Biehl. BSOF ¶ 44.

On July 24, 2015, Sulaiman brought suit against Biehl, alleging that Biehl's dunning letter and conduct on the phone call violated the FDCPA, 15 U.S.C. §§ 1692e-1692f, and the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 Ill. Comp. Stat. 505/2. The matter is before the Court on the parties' cross-motions for summary judgment.

DISCUSSION

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine dispute of material fact "exists only if there is enough evidence upon which a reasonable jury could return a verdict in" the non-movant's favor. Swetlik v. Crawford, 738 F.3d 818, 826 (7th Cir. 2013). When there are cross-motions for summary judgment, the court "construe[s] 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., 400 F.3d 523, 526-27 (7th Cir. 2005). "[D]istrict courts presiding over summary judgment proceedings may not weigh conflicting evidence, . . . or make credibility determinations." Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011). Rather, the court's role is to determine whether there is a genuine issue for trial. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).

Sulaiman contends that Biehl's dunning letter was designed to deceive debtors into believing that Biehl was a law firm, thereby violating § 1692e(3) of the FDCPA. Compl. ¶ 29. Additionally, he argues that Biehl violated § 1692f when one of Biehl's employees toldSulaiman that he had no right to demand that the communications cease and that it was up to the Tribune to decide if and when Sulaiman would be contacted for collection purposes. Compl. ¶ 33.

I. Section 1692e

Section 1692e of the FDCPA states 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. Furthermore, § 1692e(3) states that "[t]he false representation or implication that any individual is an attorney or that any communication is from an attorney" violates the FDCPA. For a debt validation notice to be valid, it "must be effective, and it cannot be cleverly couched in such a way as to eviscerate its message." Avila v. Rubin, 84 F.3d 222, 226 (7th Cir. 1996). The consumer "is to be protected against confusion, whatever form it takes," be it outright contradiction, overshadowing, or the failure to explain an apparent contradiction. Bartlett v. Heibl, 128 F.3d 497, 500-01 (7th Cir. 1997).

A. The Unsophisticated Consumer Standard

Sulaiman contends that the "unsophisticated consumer" standard is the benchmark for determining whether Biehl's dunning letter was misleading. See Veach v. Sheeks, 316 F.3d 690, 692 (7th Cir. 2003) ("In deciding whether the collection letter is confusing, the court asks whether the validation notice is likely to be understood by an unsophisticated consumer."). The Seventh Circuit has explained that the unsophisticated consumer "may be 'uninformed, naive, or trusting,'" but also possesses "rudimentary knowledge about the financial world, is wise enough to read collection notices with added care, possesses 'reasonable intelligence' and is capable of making basic logical deductions and inferences." Gruber v. Creditors' Protection Service, Inc., 742 F.3d 271, 273 (7th Cir. 2014) (quoting Pettit v. Retrieval Masters Creditor Bureau, Inc., 211 F.3d 1057, 1060 (7th Cir. 2000)). The unsophisticated consumer "may tend to read collectionletters literally, [but] he does not interpret them in a bizarre or idiosyncratic fashion." Pettit, 211 F.3d at 1060. A statement will only be considered misleading under the unsophisticated consumer standard if "a significant fraction of the population would be similarly misled." Id.

Biehl argues, however, that the "competent lawyer" standard should apply to Sulaiman because "he is a highly sophisticated and educated individual with a law degree who is well versed in consumer protection statutes like the FDCPA." B Mem. in Supp. 5, ECF No. 33. Biehl cites Evory v. RJM Acquisitions Funding, LLC, 505 F.3d 769 (7th Cir. 2007) in support of its argument: "Since [ ] most lawyers who represent consumers in debt-collection cases are knowledgeable about the law and practices of debt collection . . . we conclude that a representation by a debt collector that would be unlikely to deceive a competent lawyer, even if he is not a specialist in consumer debt law, should not be actionable." Id. at 774-75 (emphasis added).

In advancing this argument, however, Biehl ignores the distinction between representations made to a consumer's lawyer and representations made to a consumer who also happens to be a lawyer. Although Sulaiman is a lawyer,⁵ in the case at bar, he is the consumer who received an allegedly deceptive debt collection letter. Because the competent lawyer standard only applies to the consumer's attorney, not to the consumer himself, the Court will not apply the heightened standard to Sulaiman. In the context of attorneys representing consumers, it makes sense to apply a higher...