Betty Holcomb v. Freedman Anselmo Lindberg, LLC ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2532
BETTY HOLCOMB,
Plaintiff-Appellee,
v.
FREEDMAN ANSELMO LINDBERG, LLC,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 1129 — John Z. Lee, Judge.
____________________
ARGUED APRIL 4, 2018 — DECIDED AUGUST 21, 2018
____________________
Before WOOD, Chief Judge, and BAUER and SYKES, Circuit
Judges.
SYKES, Circuit Judge. 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,
2 No. 17-2532
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 com-
petent 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 be-
comes 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 per-
mitted, but required, Freedman to serve the default motion
on Holcomb directly.
I. Background
The facts are not in dispute. After Betty Holcomb de-
faulted on her credit-card account, Portfolio Recovery Asso-
ciates purchased her debt and hired Freedman Anselmo
No. 17-2532 3
Lindberg, LLC, to collect it. On Portfolio Recovery’s behalf,
Freedman filed a complaint against Holcomb in Cook Coun-
ty Circuit Court on August 4, 2014. Holcomb filed a pro se
appearance, but soon after retained Attorney Andrew Finko
from the Debtors Legal Clinic, a nonprofit legal services
organization that provides legal advice to low-income
individuals. On September 16 Finko sent Freedman a letter
notifying the law firm that the Debtors Legal Clinic was
representing Holcomb. But he did not file a written
appearance with the court.
Finko later appeared for Holcomb at two hearings on
November 12, 2014, and January 6, 2015. Both times the
court entered a form “trial call order,” checking a box indi-
cating that “defendant’s counsel” was “present before the
court.” Neither order identified Finko or the Debtors Legal
Clinic by name.
On January 8, 2015, Freedman moved for default judg-
ment. Because Finko had not yet filed a written appearance
or other pleading with the court, Freedman mailed notice of
the motion to both Holcomb and Finko. That precipitated
this lawsuit accusing Freedman of violating § 1692c(a)(2) of
the FDCPA. That section of the Act prohibits a debt collector
from communicating with a consumer about the collection
of a debt when it knows the consumer is represented by
counsel. But there are several exceptions, one of which is
implicated here: the statute prohibits direct contact with a
represented debtor “[w]ithout … the express permission of a
court of competent jurisdiction.” § 1692c(a)(2). Stated posi-
tively, the FDCPA permits direct contact with a represented
debtor if a court of competent jurisdiction authorizes the
contact.
4 No. 17-2532
The case proceeded to cross-motions for summary judg-
ment, and Freedman invoked this safe harbor. The law firm
pointed to Rule 11 of the Illinois Supreme Court Rules,
which governs service of court papers subsequent to the
summons and complaint. The rule requires service on the
“attorney of record,” if there is one, but “[o]therwise” re-
quires service on the party directly. Freedman argued that
because Finko had not yet filed a written appearance at the
time of the default motion, he was not Holcomb’s “attorney
of record” within the meaning of Rule 11. On this under-
standing of the rule, Freedman had no choice but to send the
default motion to Holcomb. In other words, Rule 11 gave
Freedman “express permission” to serve Holcomb directly.
The judge rejected this reading of Rule 11, calling it
“hyper-technical.” He concluded instead that Illinois trial
judges have discretion to recognize a lawyer as a party’s
attorney of record in the absence of a written appearance,
and indeed the state court had done so by checking the box
on the call orders showing that “defendant’s counsel” was
“present before the court” at the November 12 and January 6
hearings. On this reading of Illinois law, the judge held that
Freedman violated § 1692c(a)(2) and entered judgment for
Holcomb.
II. Discussion
The case was resolved on cross-motions for summary
judgment, so our review is de novo and we construe the
record in the light most favorable to the losing party—here,
Freedman. Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017).
Holcomb’s claim rests on § 1692c(a)(2) of the FDCPA, which
provides in relevant part: “Without … the express permis-
sion of a court of competent jurisdiction, a debt collector
No. 17-2532 5
may not communicate with a consumer in connection with
the collection of any debt … if the debt collector knows the
consumer is represented by an attorney with respect to such
debt … .” 15 U.S.C. § 1692c(a), (a)(2). As the opening phrase
of the statute makes clear, a debt collector may communicate
with a represented debtor if a court of competent jurisdiction
has given “express permission.”
Freedman reprises its argument that Rule 11 of the
Illinois Supreme Court Rules gave it “express” judicial
“permission” to serve the default motion directly on Hol-
comb. As we’ve noted, the rule sets forth the proper manner
of serving court documents subsequent to the summons and
complaint. It provides: “If a party is represented by an
attorney of record, service shall be made upon the attorney.
Otherwise service shall be made upon the party.” ILL. SUP. CT.
R. 11(a) (emphasis added).
In Thomas v. Law Firm of Simpson & Cybak, 392 F.3d 914,
920 (7th Cir. 2004), we suggested in dicta that “[c]ourt rules
permitting service could be interpreted as granting …
express permission” under § 1692c(a). Today we make that
holding explicit.
Everyone agrees that the Illinois circuit courts are “courts
of competent jurisdiction.” And Holcomb wisely doesn’t
argue that a state-court procedural rule can never constitute
“express permission” under § 1692c(a)(2). A court rule
expressly requiring a certain action obviously permits that
action, so a rule requiring service directly on a party express-
ly permits such service.
So did Rule 11 of the Illinois Supreme Court Rules actual-
ly require Freedman to serve Holcomb directly? That de-
6 No. 17-2532
pends on whether Finko was her “attorney of record” when
Freedman filed the default motion. Freedman maintains that
he was not because he had yet to file a written appearance or
other pleading with the court. Holcomb counters that Finko
became the attorney of record when he appeared for her at
two hearings and the state court issued orders indicating
that counsel for the defendant was present. Holcomb’s
argument thus proposes a kind of sliding-scale approach in
which status as an attorney of record for Rule 11 purposes
depends on the lawyer’s degree of participation in the case.
That approach cannot be reconciled with Illinois prece-
dent, which adopts a bright-line rule: a lawyer can become
an attorney of record within the meaning of Rule 11 only by
filing a written appearance or other pleading with the court.
Jayko v. Fraczek, 966 N.E.2d 1121, 1135 (Ill. App. Ct. 2012)
(“The clear language of [Rule 11(a)] and cases [that] apply
it … indicate that one becomes an attorney ‘of record’ in a
case by filing an appearance or other pleading with the
court.”). A lawyer does not become an attorney of record
simply by representing a party. Id.
Illinois courts have consistently applied this rule. For ex-
ample, in J.P. Morgan Mortgage Acquisition Corp. v. Straus,
980 N.E.2d 702, 707–08 (Ill. App. Ct. 2012), the Illinois Appel-
late Court held that Rule 11 required the plaintiff to serve the
defendant instead of the defendant’s lawyer because he was
not the attorney of record. The plaintiff was aware that the
lawyer was representing the defendant but that didn’t
matter. He was not the attorney of record under Rule 11
because he had not properly filed a written appearance with
the court.
No. 17-2532 7
Another example is Windmon v. Banks, 335 N.E.2d 116 (Ill.
App. Ct. 1975). There a lawyer represented a plaintiff at her
deposition and gave opposing counsel a copy of a notice of
appearance with the assurance that he would file it. Id. at
118. But he never did file the notice of appearance, and he
later maintained that he did not agree to represent the
plaintiff in the matter. Id. The court held that he was not the
attorney of record under Rule 11. Id. at 120.
Additional evidence of this bright-line approach can be
found in Firkus v. Firkus, 558 N.E.2d 554 (Ill. App. Ct. 1990).
That case holds that after filing a written appearance, a
lawyer remains the attorney of record within the meaning of
Rule 11 until he formally withdraws his appearance. Id. at
558.
As these cases show, a lawyer is deemed an attorney of
record for Rule 11 purposes only upon the filing of a written
appearance or other pleading with the court. Representing a
party in litigation or even notifying opposing counsel of an
intent to file a written appearance is not enough. To acquire
the status as attorney of record for purposes of Rule 11
requires a written appearance or other pleading filed in
court. Period.
So Finko did not become Holcomb’s attorney of record
simply by appearing in court on her behalf or by notifying
Freedman that he was representing her. Nor did he become
attorney of record when the state court noted in the
November 12 and January 6 call orders that “defendant’s
attorney” was “present in court.”
Holcombs insists that Illinois trial courts have the discre-
tion to recognize a lawyer as the attorney of record without a
8 No. 17-2532
written appearance or pleading. But the cases she cites in
support of this position all dealt with circumstances outside
the Rule 11 context. In Tobias v. King, 406 N.E.2d 101, 102 (Ill.
App. Ct. 1980), the Illinois Appellate Court considered
whether a law firm could petition for attorney’s fees despite
its failure to file a written appearance. The court held that it
could because the trial court had “properly recognized [it] as
the attorney of record.” Id. at 104. In People v. Buster,
222 N.E.2d 31, 32–33 (Ill. App. Ct. 1966), an attorney repre-
senting a criminal defendant failed to appear on the trial
date, and the court found him guilty of criminal contempt.
The lawyer argued that he had no obligation to appear
because he never filed a written appearance and was there-
fore not the attorney of record. Id. at 34. The Illinois Appel-
late Court rejected this attempt to evade his professional
duties to his client and the court, reasoning that the lawyer’s
“course of conduct … [could] be equated to his filing an
appearance on behalf of the defendant” for purposes of
establishing his duty to appear at trial. Id. at 34–35.
Tobias establishes only that a lawyer can obtain an award
of fees without having filed a written appearance. Buster
stands for the unremarkable proposition that an attorney’s
failure to file a written appearance does not absolve him of
duties he otherwise owes to his client and the court. Neither
case undermines the clear rule—established in cases like
Jayko, Straus, and Windmon, and confirmed by implication in
Firkus—that filing a written appearance or other pleading in
court is a necessary prerequisite for status as attorney of
record for purposes of the service regime set forth in Rule 11.
And this bright-line rule makes good sense in context.
Service of pleadings triggers responsive duties and dead-
No. 17-2532 9
lines; a contextual analysis would leave too much gray area
when certainty and simplicity is needed. 1
As a fallback, Holcomb makes a preemption argument
that verges on frivolous. She suggests that if Rule 11 is
understood to require service on a represented party whose
attorney has not yet filed a written appearance, it conflicts
with § 1692c(a)(2), which prohibits such communication, and
is therefore preempted. But § 1692c(a) explicitly allows a
debt collector to communicate with a represented debtor if a
court of competent jurisdiction permits it to do so. Because
the Rule 11 fits comfortably within that exception, it operates
in harmony with § 1692c(a).
Holcomb’s last argument is that when a lawyer has not
yet filed a written appearance, service on the party, as re-
quired by Rule 11, can be accomplished by serving the
attorney as the party’s “agent.” That’s an unsound reading of
the rule, which clearly sets forth alternatives for service of
court papers: (1) “If a party is represented by an attorney of
record, service shall be made upon the attorney”;
(2) “[o]therwise service shall be made upon the party.” ILL.
SUP. CT. R. 11(a). The implication is clear. Where there is no
attorney of record, service must be directed to the party
himself, not to his (non-record) attorney as agent.
1 Holcomb also cites Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc.,
484 N.E.2d 1178, 1182 (Ill. App. Ct. 1985), but that case does not advance
her position here. The defendant there argued that the plaintiff’s posttrial
motion was a nullity because the lawyer who filed it was not the attorney
of record. The Illinois Appellate Court acknowledged that the attorney
improperly filed the motion before becoming the attorney of record but
nonetheless declined to invalidate it. The court said nothing about what
makes a lawyer an attorney of record within the meaning of Rule 11.
10 No. 17-2532
Other rules of court confirm this understanding. Another
subpart of Rule 11 provides that service can be made by
“[d]elivering the document to the attorney or party.” Id.
R. 11(c)(1) (emphasis added). The highlighted phrase would
be redundant if “party” meant “attorney or party.” The same
is true for other Illinois Supreme Court Rules. See, e.g., id.
R. 201(b)(2) (providing that communications between the
party’s attorney and the “party or his agent” are privileged);
id. R. 231(a) (requiring an affidavit in support of an applica-
tion for continuance authored “by the party so applying or
his authorized agent”); id. R. 231(g) (declaring that an oppos-
ing party must pay costs “on demand of the party, his agent,
or his attorney”); id. R. 765(a) (requiring service to be made
by “a party or agent of the party”).
In sum, because Finko had not filed a written appearance
in the collection action, he was not Holcomb’s attorney of
record for purposes of Rule 11’s service requirements. So
Rule 11 expressly permitted—indeed required—Freedman
to send the default motion directly to Holcomb. The law
firm’s compliance with that rule did not violate § 1692c(a)(2).
Accordingly, we REVERSE and REMAND for entry of judgment
in Freedman’s favor.