Please ensure Javascript is enabled for purposes of website accessibility

FDCPA Violation

By: Derek Hawkins//September 17, 2018//

FDCPA Violation

By: Derek Hawkins//September 17, 2018//

Listen to this article

7th Circuit Court of Appeals

Case Name: Betty Holcomb v. Freedman Anselmo Lindberg, LLC,

Case No.: 17-2532

Officials: WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.

Focus: FDCPA Violation

When Betty Holcomb ran up a credit-card bill and did not pay, the creditor hired the law firm of Freedman Anselmo Lindberg, LLC (“Freedman”), to collect it. Freedman sued Holcomb on the creditor’s behalf in Illinois state court. Holcomb initially appeared pro se but later retained Attorney Andrew Finko to represent her. When Freedman moved for default judgment, however, Finko had not yet filed a written appearance. So Freedman served the motion on both Holcomb and Finko.

This lawsuit followed. Holcomb alleges that Freedman violated § 1692c(a)(2) of the Fair Debt Collection Practices Act (“FDCPA” or “the Act”), which prohibits a debt collector from directly contacting a debtor who is represented by counsel absent “express permission” from “a court of competent jurisdiction.” 15 U.S.C. § 1692c(a)(2). On cross-motions for summary judgment, Freedman argued that an Illinois court rule gave it “express permission” to serve the default motion on Holcomb directly. Rule 11 of the Illinois Supreme Court Rules requires service of court papers on a party’s “attorney of record,” if there is one, but “[o]therwise service shall be made upon the party.” ILL. SUP. CT. R. 11(a). Because Finko had not yet filed a written appearance, Freedman argued that he was not yet Holcomb’s “attorney of record” for purposes of Rule 11. That, in turn, required service on Holcomb directly. The district judge rejected this argument as “hyper-technical” and entered judgment for Holcomb.

We reverse. Illinois precedent is clear that an attorney becomes a party’s “attorney of record” for Rule 11 purposes only by filing a written appearance or other pleading with the court. Finko had done neither, so Rule 11 not only permitted, but required, Freedman to serve the default motion on Holcomb directly.

Reversed and Remanded

Full Text


Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests