December 11, 2015
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:13-cv-07667 -
Robert W. Gettleman, Judge.
Kanne, Rovner, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
1993, according to defendant Portfolio Recovery Associates,
plaintiff Manuel Pantoja incurred a debt for a Capital One
credit card that he applied for but never actually used.
Twenty years later, long after the statute of limitations had
run, Portfolio Recovery had bought Capital One's rights
to this old debt and sent Pantoja a dunning letter trying to
collect. The federal Fair Debt Collection Practices Act
("FDCPA") prohibits collectors of consumer debts
from, among other things, using "any false, deceptive,
or misleading representation or means in connection with the
collection of any debt." 15 U.S.C. § 1692e. This
appeal concerns the practice of attempting to collect an old
consumer debt that is clearly unenforceable under the
applicable statute of limitations.
district court granted summary judgment in favor of plaintiff
Pantoja on his claim under § 1692e. The court found the
dunning letter was deceptive or misleading because (a) it did
not tell the consumer that the defendant could not sue on
this time-barred debt and (b) it did not tell the consumer
that if he made, or even just agreed to make, a partial
payment on the debt, he could restart the clock on the
long-expired statute of limitations, in effect bringing a
long-dead debt back to life. Pantoja v. Portfolio
Recovery Assocs., LLC, 78 F.Supp.3d 743 (N.D. Ill.
2015). We affirm, essentially for the reasons explained
concisely by Judge Gertleman.
Factual and Procedural Background
review de novo a grant of summary judgment,
considering facts that are not disputed and giving the
non-moving party the benefit of conflicts in the evidence and
reasonable inferences that might be drawn from the evidence.
Ruth v. Triumph P'ships, 577 F.3d 790, 794 (7th
Cir. 2009), quoting Belcher v. Norton, 497 F.3d 742,
747 (7th Cir. 2007). In 1993, plaintiff Manuel Pantoja
applied for a credit card from Capital One Bank. He was
approved for the credit card, but he never activated the
account or used the card for any purpose. Nevertheless,
Capital One assessed annual fees, late fees, and activation
fees against Pantoja's account. Not surprisingly, he
never made any payment on the account. Defendant Portfolio
Recovery Associates purchased a portfolio of consumer debts
including the debt allegedly owed by Pantoja. In 1998,
Portfolio Recovery attempted to collect the alleged debt by
telephone calls but apparently stopped in fairly short order
without success. Nothing more happened with the account until
April 2013, when Portfolio Recovery sent a dunning letter to
Pantoja claiming he owed $1, 903.15. The letter said:
We are offering to settle this account FOR
GOOD! Life happens and at times you may fall behind
on your commitments. We understand and are offering you the
opportunity to lock in this settlement offer with a low down
payment of $60.00. If settling this account with the options
that we are offering is difficult for you, give us a call.
Other payment options may be available so please call
1-800-772-1413 for more information.
Please understand, we can't help you resolve this debt if
you don't call, our friendly representatives are waiting.
Because of the age of your debt, we will not sue you for it
and we will not report it to any credit reporting agency.
letter also proposed three "settlement offers" to
choose among. The first called for a "down payment"
of $60.00 and payment of an additional $511.00 within a
month, with the claim that this would "save"
Pantoja $1, 332.15. The second option called for a down
payment of $45.00 and six monthly payments of $104.00 each,
to "save" Pantoja $1, 234.15. The third option
called for a down payment of $40.00 and twelve monthly
payments of $60.00, to "save" Pantoja $1, 143.15.
The offers added: "Once the full settlement payment is
received your account will be considered settled in
full." The second page of the letter cautioned: "We
are not obligated to renew this offer." See Evory v.
RJM Acquisitions Funding L.L.C., 505 F.3d 769, 776 (7th
Cir. 2007) (stating that this sentence, word-for-word, would
protect consumers from false impressions concerning
collectors' supposedly "one-time" settlement
principal focus is on the following language in the dunning
letter: "Because of the age of your debt, we will not
sue you for it and we will not report it to any credit
reporting agency." The parties filed cross-motions for
summary judgment. Portfolio Recovery pointed out that the
dunning letter said the debt was so old that it would not sue
the debtor, and it argued that the letter was at worst
ambiguous as to whether it could have sued to collect the
noted, the district court granted summary judgment for
Pantoja on his claim under the FDCPA. The court offered two
independent reasons, and we agree with both. The first is
that the dunning letter failed to warn Pantoja that if he
accepted any of the settlement offers, whether by making a
partial payment or even by just agreeing to make a payment,
he would lose the protection of the statute of limitations.
The second is that the letter deceptively said that Portfolio
Recovery had chosen not to sue Pantoja, rather than saying
that the debt was so old that Portfolio Recovery could not
sue him for the alleged debt. The court entered a final
judgment in ...