Henry Horia v. Nationwide Credit & Collection ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1559
HENRY HORIA,
Plaintiff-Appellant,
v.
NATIONWIDE CREDIT & COLLECTION, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17-cv-08355 — Andrea R. Wood, Judge.
____________________
ARGUED DECEMBER 12, 2019 — DECIDED DECEMBER 18, 2019
____________________
Before BAUER, EASTERBROOK, and ST. EVE, Circuit Judges.
EASTERBROOK, Circuit Judge. Nationwide Credit sent Hen-
ry Horia a leWer seeking to collect a debt owed to GoWlieb
Memorial Hospital. By return mail, Horia disputed the va-
lidity of this claim. The Fair Debt Collection Practices Act re-
quires a debt collector such as Nationwide Credit that noti-
fies a credit agency, such as Experian, about the debt to re-
veal whether the claim is disputed. 15 U.S.C. §1692e(8). Ho-
ria asserts in this suit that Nationwide Credit notified Ex-
2 No. 19-1559
perian about the debt but not about the dispute, injuring his
credit rating and causing him mental distress.
Nationwide Credit has faced this kind of claim from Ho-
ria before. In his first suit Horia complained about a different
leWer that Nationwide Credit had sent, aWempting to collect
a different debt to a different creditor. That claim was dis-
puted, and Horia asserted that Nationwide Credit had failed
to notify Experian about the dispute. The suit was seWled
and dismissed with prejudice by agreement of the parties.
Sixteen days later Horia filed this second suit.
Contending that Horia is gaming the system by seeking
multiple recoveries for a single kind of wrong, Nationwide
Credit asked the district court to dismiss on the ground of
claim preclusion—the contemporary phrase for what used to
be called res judicata and the doctrine of bar. See Restatement
(Second) of Judgments §19 (1982). The district court granted
that motion, ruling that Horia has split his claims impermis-
sibly. 2018 U.S. Dist. LEXIS 127678 (N.D. Ill. July 31, 2018).
The doctrine of bar forecloses repeated suits on the same
claim, even if a plaintiff advances a new legal theory or a
different kind of injury. See, e.g., Migra v. Warren City School
District Board of Education, 465 U.S. 75 (1984); Commissioner v.
Sunnen, 333 U.S. 591, 597 (1948). But, as §19 explains, bar ap-
plies only to “the same claim.” Horia insists that he has sued
on two claims, not one.
Federal law—which applies here because the first judg-
ment was entered by a federal court, see Semtek International
Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001); Taylor v.
Sturgell, 553 U.S. 880 (2008)—defines a “claim” by looking
for a single transaction. See, e.g., Herrmann v. Cencom Cable
Associates, Inc., 999 F.2d 223, 226 (7th Cir. 1993); Kratville v.
No. 19-1559 3
Runyon, 90 F.3d 195, 198 (7th Cir. 1996). Usually this means
all losses arising from the same essential factual allegations
(sometimes called a common core of facts), see Matrix IV, Inc.
v. American National Bank & Trust Co., 649 F.3d 539, 548 (7th
Cir. 2011), though the American Law Institute has resisted
the idea that the inquiry can be reduced to a formula. See
Restatement §24. See also Currier v. Virginia, 138 S. Ct. 2144,
2154 (2018) (“In civil cases, a claim generally may not be
tried if it arises out of the same transaction or common nu-
cleus of operative facts as another already tried.”). We do not
find it necessary to seek a definition, because Horia has al-
leged two transactions on any understanding.
The two debts are owed (if Horia owes anything) to
different creditors. Nationwide Credit sent two debt-
collection leWers. Horia’s lawyer sent back two leWers, one
disputing each debt. With respect to each debt, Nationwide
Credit assertedly failed to tell Experian that the debt had
been disputed. The two sequences overlap in time (though it
is hard to know the date on which Nationwide Credit didn’t
notify Experian; inaction spans a range of dates). They in-
volve the same statutory rule and the same debt collector.
But the wrongs differ—Nationwide Credit could have given
a proper notice for one debt but not the other—and the inju-
ry differs. Each failure to notify could have caused an addi-
tional harm to credit score or peace of mind.
Suppose this were an employment-discrimination suit.
On Monday a potential employer turns down an applicant
because of the applicant’s race. Unfazed, the applicant tries
again on Friday and is rejected again, for the same forbidden
reason. Does the disappointed applicant have one claim or
two? The answer is two—for National Railroad Passenger Corp.
4 No. 19-1559
v. Morgan, 536 U.S. 101, 111 (2002), holds that each discrete
discriminatory act produces one claim. In Morgan that
maWered to the statute of limitations; here it maWers to claim
preclusion, but the principle is the same. Discrete and inde-
pendently wrongful acts produce different claims, even if
the same wrongdoer commits both offenses and the second
wrong is similar to the first. Likewise with discrete viola-
tions of §1692e(8). Each time a debt collector fails to give a
credit agency the required notice for a debt is a stand-alone
wrong. Disputes that have an independent existence may be
litigated separately. Joinder in federal practice is permissive,
see Fed. R. Civ. P. 18(a), not mandatory. (The exception for
compulsory counterclaims does not maWer to this case.)
Nationwide Credit believes that allowing sequential liti-
gation is inequitable because 15 U.S.C. §1692k(a)(2)(A) sets a
maximum of $1,000 in statutory damages per case. See Por-
talatin v. BlaP, Hasenmiller, Leibsker & Moore, LLC, 900 F.3d
377, 385 (7th Cir. 2018); Smith v. Greystone Alliance, LLC, 772
F.3d 448, 449 (7th Cir. 2014). (By “statutory damages” we
mean a sum in addition to compensation for actual injury,
which is governed by §1692k(a)(1).) Multiplying the number
of cases multiplies the maximum award. That’s true, but
what of it? A statutory cap per case, rather than per bill col-
lector, induces debtors to file more cases. Judges aren’t au-
thorized to turn per-case caps into per-defendant caps; that
choice is legislative.
Bill collectors can protect themselves, however. If Na-
tionwide Credit wanted to extend the effect of the seWle-
ment, it had only to negotiate a broad release. Many a re-
lease covers all disputes between the same parties, not just
the dispute already in court. Maybe the release in Horia’s
No. 19-1559 5
first suit does cover the second, but release is an affirmative
defense, see Fed. R. Civ. P. 8(c)(1), which Nationwide Credit
has not asserted.
Debt collectors also can use the language of the Act. Sec-
tion 1692k(a)(2)(A) says that a court may award “such addi-
tional damages as [it] may allow, but not exceeding $1,000”
per case. Defendants are free to argue—and district judges
have discretion to conclude—that a debtor who has already
collected $1,000 in statutory damages should not receive
more from the same defendant for the same sort of wrong.
The critical statutory word is “may” rather than “must”.
Debt collectors also are free to contend, and judges to find,
that the second suit entails the same “actual damage”
(§1692k(a)(1)) as the first, so that an additional award on that
front is inappropriate. If a bill collector’s first failure to notify
a credit bureau damages a debtor’s credit score and causes
emotional distress, a second suit based on a second failure to
notify the same credit bureau allows the debtor to collect on-
ly the marginal loss caused by the second wrong.
And a defendant who persuades a court that a sequential
suit was brought to harass not only avoids an award of
aWorneys’ fees but also becomes eligible to collect its own
aWorneys’ fees from the debtor. 15 U.S.C. §1692k(a)(3). The
statute thus provides debt collectors with tools to discourage
abusive litigation.
Horia may have difficulty showing that he suffered a
marginal injury from Nationwide Credit’s second failure to
notify Experian that a debt has been disputed. But he is enti-
tled to try.
REVERSED AND REMANDED