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Ross v. O'Hara

United States District Court, N.D. Indiana

August 14, 2019

ANGELA ELVITA ROSS, Plaintiff,
v.
JONATHAN R. O'HARA, Defendant.

          OPINION AND ORDER

          HOLLY A. BRADY JUDGE

         This matter is before the Court on Defendant Jonathan R. O'Hara's Motion for Summary Judgment [ECF No. 18] on Plaintiff Angela Elvita Ross's Complaint alleging violations of the Fair Debt Collection Practices Act (FDCPA). For reasons stated in this Opinion and Order, the Motion will be denied.

         STATEMENT OF FACTS

         In 1998, Wal-Mart obtained a judgment against Plaintiff in Gary City Court in Gary, Indiana, related to an insufficient funds check that Plaintiff wrote in 1997. Several motions for proceedings supplemental were filed from 1998 through 2005, but no service was obtained. When Defendant, who is an attorney, learned that Plaintiff lived in Jacksonville, Florida, he filed another proceedings supplemental motion in October 2005 on behalf of his client. Plaintiff did not appear for an examination as to assets in Indiana, and a contempt citation was issued for her to appear in December 2005. She did not appear, and a bench warrant body attachment was issued for her arrest based on the failure to appear.[1]

         In early 2017, Defendant learned through an internet skip tracing program that, since 2005 when the body attachment was issued, Plaintiff had moved to a different address in Jacksonville, Florida. On March 23, 2017, Defendant sent a letter (the "Letter") to Plaintiff in Jacksonville, Florida, attempting to collect the debt. The Letter was addressed to Angela E. Ross aka Briana Elise Ross-Williams. Briana Elise Ross-Williams is not an alias. She is Plaintiffs college-aged daughter, and the two lived together in Jacksonville, Florida. However, Defendant maintains that the skip tracing program showed the social security number for Plaintiff, Angela Ross, was also attributed to Briana Ross Williams.

         The Letter purports to collect a debt related to "'Walmart Stores, Inc, #1618 vs. Angela E. Ross Aka Briana Elise Ross-Williams" with a total amount due of $1, 040.00. (3/23/17 Letter, Ex. A to Pl'.s Compl., ECF No. 1-1.) The Letter states,

Please find enclosed a copy of a motion and order 1 have filed with the Court. This motion and order was issued because you failed to appear at a hearing on contempt filed by the Court. This matter is now very serious and you could be arrested at any time. You basically have 2 options right now. If you pay the amount due mentioned above, I will file a motion to have the bench warrant-body attachment recalled and that will be the end of the cast. If you are unable to pay the full amount, then you will need to talk to me about a plan of repayment. You will be required to put an adequate amount down to have the bench warrant-body attachment recalled and make payment arrangements on this rest owed. Please contact my office IMMEDIATELY when you receive this letter to discuss with us what you intend to do. Make your payment payable to "Jonathan R. O'Hara, Trustee".

(Id.)

         STANDARD OF REVIEW

         Summary judgment is warranted when "the movant shows that 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). The non-moving party must marshal and present the Court with evidence on which a reasonable jury could rely to find in its favor. Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). A court must deny a motion for summary judgment when the nonmoving party presents admissible evidence that creates a genuine issue of material fact. luster v. III. Dep't of Cons., 652 F.3d 726, 731 (7th Cir. 2011) (citations omitted). A court's role in deciding a motion for summary judgment "is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

         Facts that are outcome determinative under the applicable law are material for summary judgment purposes. Smith ex rel. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention that an issue of material fact exists is insufficient to create a factual dispute, a court must construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences in that party's favor, Bellaver v. Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000), and avoid "the temptation to decide which party's version of the facts is more likely true," Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Additionally, a court is not "obliged to research and construct legal arguments for parties, especially when they are represented by counsel." Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011).

         ANALYSIS

         The FDCPA was enacted to eliminate the "use of abusive, deceptive, and unfair debt collection practices" 15 U.S.C. § 1692. To that end, it prohibits the use of "false, deceptive, or misleading representation or means in connection with the collection of any debt." Id. § 1692e. Additionally, § 1692d prohibits a debt collector, generally, from engaging in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of the debt. Without limiting the general application of the statute, 15 U.S.C. § 1692d(1) through (6) goes on to provide a non-inclusive listing of six specific types of prohibited conduct ranging from threats and violence to obscene language and telephone harassment.

         A. False, Deceptive, or Misleading ...


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