N.D. Ill. Calls Out Plaintiffs’ Counsel’s Scheme of Faxing Credit Report Disputes to Obscure Number

The Northern District of Illinois is a consumer-friendly jurisdiction, but even it has its limits on what it will allow plaintiff’s counsel to do. The most recent example is in the court’s decision in Irvin v. Nationwide Credit & Collection, No. 18-cv-2945 (N.D. Ill. Sept. 17, 2019). This case involves a credit report dispute that plaintiff’s counsel faxed to a debt collector. On its surface, it seems pretty straight-forward. However, the court found a problem with the specific fax number used.

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Plaintiffs received collection letters from defendant, which included a specific fax number in the contact information. Plaintiffs’ counsel—from Community Lawyers Group, Ltd.—sent their typical and often used credit report dispute letter to defendant. However, rather than faxing the dispute letter to the fax number provided on the letter, plaintiffs’ counsel did an internet search and sent the dispute to a fax number listed for the debt collector on an industry association’s website. This fax number was no longer in use by the debt collector for business purposes and it was never a number used for collection communications, but plaintiff’s counsel had a confirmation notice that the fax was sent successfully. Ultimately, defendant never processed the notice and continued to report the account without marking it as disputed.

The court granted summary judgment for the debt collector. The court found that even though the plaintiffs had a fax confirmation sheet showing that defendant’s fax machine received the fax, defendant presented enough evidence to show that it did not actually receive the fax—both because the fax was no longer used for business purposes and the fax number used was not the one provided to the consumer for collection communications. In the alternative, the court found that defendant had ample policies and procedures in place to prevent the injury alleged, entitling it to the bona fide error defense.

The final three paragraphs of the decision provide a scathing view of how plaintiffs and their counsel are abusing the FDCPA, and are well worth a read in their entirety (begins on bottom of p. 7 of the opinion). Some quotes include (internal quotations and citations omitted from all):

• “In the instant case plaintiffs (more specifically their attorneys) were the principal author of the harm of which they complain.”
• “Although the FDCPA is well intentioned, the mandatory recovery of attorney’s fees to a successful plaintiff has turned FDCPA cases into a profitable vein of litigation upon which entire firms focus their practices, provided, of course, the firms can keep finding plaintiffs. Indeed, as the Seventh Circuit has noted, the driving force behind these cases are the attorneys (particularly class action attorneys) and their quest for attorney’s fees.”
• “In the instant case, it appears to this court that plaintiffs’ attorneys’ actions were designed to avoid defendant’s procedures reasonably adapted to avoid errors, for the purpose of manufacturing a lawsuit. . . And, this is not the first time these lawyers have attempted this sort of stunt.”

insideARM Perspective

This is yet another example of the litigation dilemma faced by debt collectors. This joins the list of issues of questionable practices, such as the mass mailing of dispute letters—which a jury found to be fraud by a consumer law firm— and call baiting practices where the caller, usually aided by a representative, purposefully attempts to trick a debt collector into an FDCPA violation. Lawsuits based on these practices provide no benefit to consumers, and it is a shame that so much of a debt collector's time and resources are devoted to fielding and defending these suits rather than on efforts that actually help the consumers they interact with on a daily basis.

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