District Court (Ill.) Permits Counter-Claim on the Debt Against FDCPA/TCPA Plaintiff

In Walker v. Westlake Fin. Servs., No. 19 C 6921, 2020 U.S. Dist. LEXIS 105794 (N.D. Ill. June 17, 2020), Judge Kendall permitted an FDCPA/TCPA defendant to file a counter-claim on the debt back against the Plaintiff.

Walker, however, takes too narrow a view and disregards several relevant facts. Here, Westlake’s claim involves “the same parties, contracts, and course of action” as the TCPA claim. Prolite, 891 F.3d at 258. Both claims arise from a common nucleus of operative facts, namely Walker’s failure to make payments under the Retail Installment Sales Contract and related collection attempts. At least one court within this district has concluded as much under similar circumstances, and courts outside of this district have reached the same conclusion specifically in TCPA cases. See, e.g., Mufwene v. Am. Credit Exch., No. 10 C 2591, 2010 WL 4539451, at *1 (N.D. Ill. Nov. 3, 2010) (“Although Mufwene is correct that the actual validity of the underlying debt is not relevant to her FDCPA claim, . . . as she admits, ‘the debt that Defendant seeks to collect involves the same debt for which Defendant is suing Plaintiff.’ Thus, the court finds that American Credit’s counterclaim has at least a ‘loose factual connection’ to Mufwene’s FDCPA claim.”) (citations omitted); see also, e.g., Gonzalez v. Chase Bank USA, N.A., No. 318CV00431CABAGS, 2018 WL 2461490, at *5 (S.D. Cal. June 1, 2018) (referencing Seventh Circuit law and concluding that “supplemental jurisdiction exists over a defendant’s state-law counterclaim related to the debt underlying a plaintiff’s RFDCPA and/or TCPA claim”); Bates v. Am. Credit Acceptance, LLC, No. 16-12239, 2016 WL 5477429, at *3 (E.D. Mich. Sept. 29, 2016) (“In sum, neither Plaintiffs’ TCPA-based claims, nor Defendant’s breach of law contract claim, would exist but for the November 2011 contract and the parties’ actions thereunder”). Additionally, the prohibitions in the TCPA apply when there is no consent, and consent is a defense to such a claim. See Blow v. Bijora, Inc., 855 F.3d 793, 803 (7th Cir. 2017). Thus, whether Walker consented to the calls is a central, operative fact in her claim. Westlake [*6]  notes that it will be introducing Walker’s account documents to establish her consent, and those same documents support the breach-of-contract counterclaim. (Dkt. 28 at 13). Indeed, the contract between the parties, which Westlake attached to its counterclaim, includes a provision regarding agreement to collection contacts using prerecorded messages and automatic telephone dialing systems. (Dkt. 18-1 at 3). To assess Walker’s TCPA claim would require reviewing the contract entered into by the parties including, possibly, assessing its validity and the circumstances under which it was entered. That the same contract will play a central role in a claim and counterclaim involving the same parties further solidifies that the exercise of supplemental jurisdiction is appropriate here. See, e.g., Coleman v. Dish Network LLC, No. LACV1702460JAKAFMX, 2017 WL 6888289, at *5 (C.D. Cal. Nov. 22, 2017) (noting that where defendant would reference underlying contract in consent defense to TCPA claim, breach-of-contract counterclaim shared “at least a partial, but material, common nucleus of operative facts”). Even if a Court may exercise supplemental jurisdiction, it can decline to do so if: “(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c). The TCPA claim remains pending here. The counterclaim is a state-law breach-of-contract claim and is not novel or especially complex. And, despite Walker’s arguments to the contrary, there is little reason to believe that the counterclaim would substantially predominate over Walker’s claim, particularly given the fact that Walker herself admits that she “fell behind on the monthly payments owed to Defendant.” (Dkt. 1 ¶ 11). Additionally, as noted, Westlake states that its counterclaim will rely on at least some of the same documents as its defense to Walker’s claims, supporting the argument that the counterclaim will not introduce significant additional discovery. That leaves § 1367(c)(4). Walker argues that allowing Westlake to bring its breach-of-contract counterclaim would dissuade Walker and others “from asserting their federal rights.” (Dkt. 20 at 11). Her argument that allowing such counterclaims would have a “chilling” effect is unpersuasive. True, the TCPA serves to protect consumers. See Physicians Healthsource, Inc. v. A-S Medication Sols., LLC, 950 F.3d 959, 967 (7th Cir. 2020) (“The TCPA is a remedial statute that we must liberally construe in favor of consumer protection.”). That being said, “[p]laintiffs cannot expect a court to tolerate evasion of lawful debts.” Channell, 89 F.3d at 386. That Walker may be deserving of protection from abusive practices does not mean she is entitled to avoid any claims against her. “In addition, the extent of the chilling effect that would accompany this Court’s decision to exercise supplemental jurisdiction over Defendant’s breach-of-contract claim is questionable. If defendants. . . are predisposed to bring state-law counterclaims in an effort to dissuade suit in the first place, they could always file such claims in state court.” Pesce v. Nuvell Credit Co., LLC, No. 11 C 1380, 2011 WL 2115667, at *3 (N.D. Ill. May 26, 2011). And exercising supplemental jurisdiction “will support judicial efficiency and economy by not requiring [the counterclaimant] to burden the state court system with parallel litigation over overlapping issues.” Mufwene, No. 10 C 2591, 2010 WL 4539451, at *2 ; see also Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 981 (7th Cir. 2011) (noting that convenience and economy are factors suggesting the appropriate exercise of supplemental jurisdiction). This Court concludes that it is appropriate in this case to exercise its supplemental jurisdiction over Westlake’s counterclaim.