Recent federal court decision reinterprets the Fair Debt Collection Practices Act (FDCPA) and may create venue defense for current or future debtor defendants in debt collection suits.

By: Joseph R. Marconi ¹

In Suesz v. Med-1 Solutions, LLC, 2014 U.S. App. LEXIS 12562 (7th Cir. 2014), the Seventh Circuit recently reinterpreted the venue provision of the federal Fair Debt Collection Practices Act (“FDCPA”). The issue for the court was whether township small claims courts in Marion County, Indiana (Indianapolis) constituted separate “judicial districts or similar legal entities” for purposes of section 1692i of the FDCPA. The en banc majority held that debt collectors must file collection actions in the “smallest geographic area that is relevant for determining venue in the court system in which the case is filed.”

Implications for Cook County Lawyers
In doing so, the Seventh Circuit not only overruled its own 1996 precedent in Newsom v. Friedman, 76 F.3d 813 (7th Cir. 1996), but also applied the en banc Suesz decision retroactively. Debt collectors previously relied on Newsom to file collection actions in a court in the debtor’s county — but not in the township or intra-county small claims court in the area where the debtor resided or where the debtor contract was signed. Per Suesz, for those of us in Cook County, collection lawsuits should be filed in the Municipal District where the debtor resides or where the contract was signed. For lawsuits that are already pending, an immediate motion to transfer to the appropriate Municipal District is most prudent.

Here's a reminder of how useful ISBA electronic discussion groups are for getting quick answers when you need them most (find out more and join here).

"I have a client who has a valid Illinois POA for property," Kurt Dittmer of La Harpe said in a recent post to the ISBA general discussion group. "The client has some property in Florida and needs to have the agent (his wife) execute some documents. The Florida attorney told me that Florida requires two witnesses and a notary and has requested I re-execute with another witness." [An Illinois POA for property requires only one witness.] [S]houldn't the valid Illinois POA be good enough? If not, how could we anticipate where the POA may be used...to comply with that state's rules?"

Eric Hasselberg of Peoria answered by saying, "[This is why I have been using two witnesses and a notary on all POAs for more than 30 years. It avoids the conflict-of-law situation where another state requires more than Illinois."

Sherwin Abrams of Chicago agreed. "When I know that a client has property in another state or spends a good deal of time there, I make sure that POAs comply with the laws of Illinois and those other states." But as for Florida law, Abrams said, "tell the lawyer there to read his/her state's statute [709.2106, Validity of power of attorney….]," which says [quoting the statute] "a power of attorney executed in another state which does not comply with the execution requirements of this part is valid in this state if, when the power of attorney was executed, the power of attorney and its execution complied with the law of the state of execution…."

ISBA President Richard D. Felice will receive the Alumnus of the Year Award from NIU College of Law on Wednesday, Sept. 17. The ceremony will be held at the University Club of Chicago, 76 E. Monroe from 5:30-7:30 p.m.

The 2014 award recipients were selected based on outstanding achievements in their careers, demonstrated service to the NIU College of Law, demonstrated service to their community, and professional integrity.

During his year as president, President Felice is placing special emphasis on three projects. The first is the formation of a Task Force on the Impact of Law School Debt on the Future of the Profession to address the tremendous challenges facing new lawyers, including staggering law school debt and a stifling job market. The second initiative is the formation of a Solo and Small Firm Practice Institute Series, offering educational programs to solo and small firm practitioners in five settings throughout the state. The third program focuses on civics education. Working with the ISBA’s Law Related Education Committee, the organization is expanding its civics education programming to high school students and will also work with Illinois Judges Association on its “Courtroom in the Classroom” project.

The 2014 ISBA Midyear Meeting and Joint Meeting with the Illinois Judges Association will be held at the Sheraton Chicago Hotel & Towers, Chicago, Illinois from Dec. 11– 13. Take advantage of this opportunity to make your reservations for lodging early. Reservations at the Sheraton may either be made online at www.starwoodmeeting.com/Book/isba2014 or by calling 800.325.3535. Please be sure to advise that you are attending the ISBA/IJA Meeting when making your reservation. Rates for 2014 are $149 for single or double occupancy, plus tax. Check-in after 3:00 p.m. and check-out before 12:00 p.m.

The deadline for making reservations for lodging is on or before November 17. Reservations received after this date will be subject to availability. The deposit will be forfeited for all no-shows, early departures and cancellations less than 72 hours prior to arrival.

Watch in the coming months for additional details, schedule of events and registration information on our website www.isba.org and Illinois Lawyer Now.

Q. Do I violate Rule 4.2 if I give another lawyer’s client a “second opinion” on a pending legal matter in which I am not involved?

A. Rule 4.2 provides that “[I]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter” without that lawyer’s consent.

However, Comment [4] to the Rule makes it clear that it does not “preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.”

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.

[Disclaimer.  These questions are representative of calls received on the ISBA’s ethics hotline.  The information provided is meant as an educational tool to highlight potentially applicable Illinois RPC or other ethics resources that might help the lawyer answer the question posed.  The information provided isn’t legal advice.  Because every situation is different, often complex, and the law is constantly evolving, you shouldn’t rely upon this general information without conducting your own research.]

Asked and Answered

By John W. Olmstead, MBA, Ph.D, CMC

Two weeks ago I was asked by the managing partner of a 16 attorney insurance defense firm about staffing and growth models for an insurance defense firm and I listed the following models and discussed the first model – Grow Your Own Associate Staffing. Last week I discussed the second and third models - Lateral Associate Staffing and Contract - Staff Associate Staffing.

Attorney staffing/growth models include:

Chief Justice Rita B. Garman of the Supreme Court of Illinois has begun an application process for a Circuit Court vacancy in the Sixth Judicial Circuit.

The DeWitt County resident circuit vacancy is created by the death of Judge Garry W. Bryan. Judge Bryan had served as a resident circuit judge in the Sixth Judicial Circuit since 2008.

Under the Illinois Constitution, the Supreme Court holds the authority to fill interim judicial vacancies until the next General Election. The application process will lead to final Court approval. The applicants will undergo an evaluation and screening process.

Notice of the vacancy has been posted in courthouses throughout the Circuit. The application form and instructions may be obtained by visiting the Supreme Court’s website at www.illinoiscourts.gov and following the instructions in the “Latest News” scroller announcing the Sixth Judicial Circuit vacancy. Applications must be submitted by mail to: