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Myers v. Americollect Inc.

United States District Court, E.D. Wisconsin

September 30, 2016

JENNIFER MYERS, MOISES RIVERA, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
v.
AMERICOLLECT INC., COLLECTION ASSOCIATES LTD., Defendants, and ALLISON HALVORSEN, KIMBERLY AKER, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
v.
COLLECTION ASSOCIATES, LTD., Defendant.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, AND DISMISSING CASE

          C.N. CLEVERT, JR. U.S. DISTRICT JUDGE

         On November 19, 2015, the parties filed cross motions for summary judgment on whether the defendants' practice of collecting five percent statutory interest in the absence of a judgment violates the Fair Debt Collection Practices Act (“FDCPA”) and the Wisconsin Consumer Act (“WCA”). Wisconsin statute, § 138.04 permits a rate of interest “upon the loan or forbearance of any money, goods or things in action” of 5%; however, the parties disagree as to whether the statute requires a judicial assessment. For the reasons set forth below, defendants' motion will be granted and this case dismissed.

         FINDINGS OF FACT

         Plaintiffs, Jennifer Myers, Moises Rivera, Allison Halvorsen, and Kimberly Aker are individuals residing in the Eastern District of Wisconsin (Kenosha County). Defendant Americollect, Inc. ("Americollect") is a corporation with its principal place of business located at 1851 S. Alverno Rd., Manitowoc, WI 54220, and defendant Collection Associates, Ltd. (“CAL”) is a corporation with its principal place of business located at 225 S. Executive Dr., Suite 250, Brookfield, WI 53005. With respect to the alleged debts at issue in this action, Americollect and CAL are a "debt collector" as defined in 15 U.S.C. § 1692a and Wis.Stat. § 427.103(3). Indeed, defendants sought to collect from each plaintiff's debt allegedly incurred for personal, family, or household purposes, specifically one or more medical bills owed or allegedly owed to third party providers of medical services.

         The parties do not dispute that each plaintiff is a "consumer" as defined in the FDCPA, 15 U.S.C. § 1692a(3), and the WCA, Wis.Stat. § 421.301(7). Similarly, they do not dispute that each of the unpaid debts at issue is a "debt" within the meaning of the FDCPA, 15 U.S.C. § 1692a(5) or that each of the unpaid debts at issue in this case arose out of a "consumer transaction" as defined in the WCA, Wis.Stat. § 421.301(10), (13). Finally, the parties do not dispute that each of the medical debts at issue were consumer transactions where payment was "deferred by agreement." See Tylke v. Advanced Pain Mgmt., S.C., Case No. 14cv5354 (Milwaukee Co. Cir. Ct., Dec. 11, 2014) ("Any time a merchant sends a bill for goods or services after a consumer transaction has taken place, there is an 'agreement to defer payment.'")

         Jennifer Myers received dental services from Brian J. Blocher, D.D.S. ("Dr. Blocher") on or about March 28, 2013. Dr. Blocher billed Myers $1, 004.00 for the services she received, and Myers did not pay for the those services. On or about January 3, 2014, Americollect mailed a debt collection letter to Myers regarding several alleged debts owed to Dr. Blocher and incurred on March 28, 2013. Blythin Declaration, Ex. A, is the first letter that Myers received from Americollect regarding the alleged debt referenced in the letter. That document contains the following itemization of charges:

CREDITOR NAME

ACCOUNT #

PRINCIPAL

INTEREST

LAST ACTIVITY DATE

BALANCE

Brian J. Blocher DDS

XXXXXT000

$1, 004.00

$0.00

3/28/2013

$1, 004.73

AMOUNT DUE

$1, 004.73

         The letter also states that: "Future interest of 5% per year may be added to the account if the amount due is not paid."

         On or about November 3, 2014, Americollect mailed a debt collection letter to Myers regarding the same alleged debt owed to Dr. Blocher. Blythin Declaration, Ex. B, contains the following itemization of charges:

CREDITOR NAME

ACCOUNT #

DATE

BALANCE

Brian J. Blocher DDS

xxxxxT000

3/28/2013

$1, 046.16

TOTAL:

$1, 046.13

         The itemized account on Blythin Declaration, Ex. A, is the same account as listed on Blythin Declaration, Ex. B. With respect to each of the accounts listed in Blythin Declaration Exs. A-B, Americollect is, on an ongoing basis, adding 5% interest to the individual account. The balances of Myers' alleged account has increased over time; however, the debt has not been reduced to judgment. The parties are presently unaware of any evidence that Myers agreed to pay any amount of interest, or any rate of interest, on any alleged debts owed to Dr. Blocher or any successor in interest.

         Similarly, Moises Rivera received medical services from the Orthopaedic Hospital of Wisconsin ("OHW") on or about February 20, 2012, August 3, 2012, and July 23, 2013. OHW billed Rivera $185.43 for the services he received on or about February 20, 2012, $114.60 for the services he received on or about August 3, 2012, and $799.00 for the services he received on or about July 23, 2013. Rivera did not pay OHW for any of the services he received on these dates.

         On or about September 3, 2013, Americollect mailed a debt collection letter to Rivera regarding the alleged debts owed to OHW and incurred on or about February 20, 2012 and August 3, 2012. Blythin Declaration, Ex. C, contains the following itemization of charges:

Creditor Name

Account Number

Date

Balance

Orthopaedic Hospital of Wisconsin

xxxxx301A

2/20/2012

$185.43

Orthopaedic Hospital of Wisconsin

xxxxx949A

8/3/2012

$114.60

TOTAL

$300.03

         On or about January 9, 2014 Americollect mailed another debt collection letter to Rivera regarding the alleged debt owed to OHW and incurred on or about July 23, 2013. Blythin Declaration, Ex. D, contains the following itemization of charges:

Creditor Name

Account #

Principal

Interest

Last Activity Date

Balance

Orthopaedic Hospital of Wisconsin

xxxxx6708

$799.00

$0.11

07/23/2013

$800.05

Amount Due:

$800.05

         Blythin Declaration, Ex. D, states: "Future interest of 5% per year may be added to the account if the amount due is not paid." On or about January 11, 2014, Americollect mailed a debt collection letter to Rivera regarding the alleged debts owed to OHW and incurred on or about February 20, 2012, August 3, 2012, and July 23, 2013. Blythin Declaration, Ex. E, contains the following itemization of charges:

Creditor Name

Account Number

Date

Balance

Orthopaedic Hospital of Wisconsin

xxxxx310A

2/20/2012

$188.57

Orthopaedic Hospital of Wisconsin

xxxxx949A

08/03/2012

$116.58

Orthopaedic Hospital of Wisconsin

xxxxx6708

07/23/2013

$800.27

TOTAL:

$1, 105.42

         The itemized accounts in Ex. E are the same accounts as listed on Exs. C and D. Americollect is, on an ongoing basis, adding 5% interest to all of the individual accounts listed in Exs. C-E. Moreover, Ex. D explicitly states that Americollect has added interest to one of the accounts. The balances of all of Rivera's alleged accounts have increased over time due to the addition of interest; however, none of the alleged debts had been reduced to judgment until after Americollect sent Exs. C-E to Rivera. The parties are unaware of any evidence that Rivera ever agreed to pay any amount of interest, or any rate of interest, on any alleged debts owed to the creditor.

         Next, Allison Halvorsen received medical services from Milwaukee Anesthesia Consultants, SC ("MAC") on or about May 14, 2014. MAC billed Halvorsen $95.69 for the services she received on or about May 14, 2014, but Halvorsen did not pay MAC for the services she received. On or about October 2, 2014, CAL mailed a debt collection letter to Halvorsen regarding the alleged debt owed to MAC and incurred ...


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