United States District Court, N.D. Indiana
OPINION AND ORDER
A. BRADY JUDGE
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
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
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
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,
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).
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).
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.
False, Deceptive, or Misleading ...