Evory, Tammy A. v. RJM Acquisitions Fun

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 06-2130 to 2132, 06-2134, 06-2157

TAMMY A. EVORY, et al., individually and on behalf of all

others similarly situated,

Plaintiffs-Appellants,

v.

RJM ACQUISITIONS FUNDING L.L.C., et al.,

Defendants-Appellees.

____________

Appeals from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

Nos. 1:04-cv-2016-DFH-TABH-TAH, 05-cv-0140-DFH-TAB,

05-cv-0216-DFH-TAB, 05-cv-0218-DFH-TAB,

05-cv-0794-DFH-TAB—David F. Hamilton, Judge.

____________

No. 06-2271

KELLY LAUER and KARLA LAUER,

Plaintiffs-Appellants,

v.

MASON, SILVER, WENK & MISHKIN, LLC, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 3911—George W. Lindberg, Judge.

____________

2 Nos. 06-2130, et al.

No. 06-3129

KEVIN I. CAPTAIN,

Plaintiff-Appellant,

v.

ARS NATIONAL SERVICES, INC.,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:05-cv-1515-DFH-TAB—David F. Hamilton, Judge.

____________

Nos. 06-3162, 06-3327, 06-3439, 06-3446

PHILIP JACKSON, et al., individually and on behalf of all

others similarly situated,

Plaintiffs-Appellants,

v.

NATIONAL ACTION FINANCIAL SERVICES, INC., et al.,

Defendants-Appellees.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 04 C 1805, 04 C 5056, 05 C 0724, 05 C 3759—

Ruben Castillo, Judge, and James F. Holderman, Chief Judge.

____________

ARGUED SEPTEMBER 20, 2007—DECIDED OCTOBER 23, 2007

____________

Nos. 06-2130, et al. 3

Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. We have consolidated for decision

four intertwined cases that present nine questions under

the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692

et seq., several of which have engendered considerable

controversy at the circuit level and even some circuit

splits. We shall first try to answer the questions and then

indicate the disposition of each of the appeals that follows

from our answers.

Here are the questions:

1. Whether, if the consumer (as the statute refers to the

putative debtor) is represented by a lawyer, a debt col-

lector must give the same written notice to the lawyer

that section 1692g would require were the consumer

unrepresented and the notice sent directly to him.

2. Whether communications to lawyers are subject to

sections 1692d through 1692f, which forbid harassing,

deceptive, and unfair practices in debt collection. Compare

Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4th Cir. 2007),

answering yes, with Guerrero v. RJM Acquisitions LLC,

No. 05-15121, 2007 WL 2389825 (9th Cir. Aug. 23, 2007)

(per curiam), and Kropelnicki v. Siegel, 290 F.3d 118, 128

(2d Cir. 2002), both answering no.

3. Whether, if the answer to question 2 is yes, the stan-

dard applicable to determining whether a representation is

false, deceptive, or misleading under section 1692e is the

same whether the representation is made to the lawyer

or to his client.

4. Whether a settlement offer contained in a letter from

the debt collector to a consumer is lawful per se under

section 1692f. Compare Lewis v. ACB Business Services, Inc.,

4 Nos. 06-2130, et al.

135 F.3d 389, 398-400 (6th Cir. 1998) (yes), with Goswami v.

American Collections Enterprise, Inc., 377 F.3d 488, 495 (5th

Cir. 2004) (no).

5. If it is not per se lawful, whether its lawfulness

should be affected by whether it is addressed to a lawyer,

rather than to the consumer directly.

6. Whether there should be a safe harbor for a debt

collector accused of violating section 1692e by making

such an offer.

7. Again, if such a letter is not per se lawful, what type

of evidence a plaintiff must present to prove that a set-

tlement offer violates section 1692e.

8. Whether the determination that a representation is

or is not false, deceptive, or misleading under section 1692

is always to be treated as a matter of law. Compare

McMillan v. Collection Professionals, Inc., 455 F.3d 754, 759

(7th Cir. 2006); Taylor v. Cavalry Investment, LLC, 365 F.3d

572, 575 (7th Cir. 2004), and Walker v. National Recovery, Inc.,

200 F.3d 500, 502, 504 (7th Cir. 1999) (no), with Wilson v.

Quadramed Corp., 225 F.3d 350, 353 n. 2 (3d Cir. 2000), and

Terran v. Kaplan, 109 F.3d 1428, 1432-33 (9th Cir. 1997) (yes).

9. Whether, if that determination is not always a matter

of law, nevertheless a charge under section 1692e can

sometimes be dismissed on the pleadings on the ground

that the challenged representation was, as a matter of law,

not false or misleading.

The questions thus fall into three overlapping groups.

The first is the application of the Fair Debt Collection

Practices Act to lawyers (questions 1 through 3, and 5); the

second is the proper treatment under the Act of settle-

ment offers (questions 4 through 7); and the last (questions

Nos. 06-2130, et al. 5

8 and 9) concerns the role of Fed. R. Civ. P. 12(c) in decid-

ing claims of violation of section 1692e.

Section 1692g provides:

(a) Notice of debt; contents

Within five days after the initial communication with

a consumer in connection with the collection of any

debt, a debt collector shall, unless the following infor-

mation is contained in the initial communication or the

consumer has paid the debt, send the consumer a

written notice containing—

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is

owed;

(3) a statement that unless the consumer, within

thirty days after receipt of the notice, disputes

the validity of the debt, or any portion thereof,

the debt will be assumed to be valid by the debt

collector;

(4) a statement that if the consumer notifies the

debt collector in writing within the thirty-day

period that the debt, or any portion thereof, is

disputed, the debt collector will obtain verification

of the debt or a copy of a judgment against the

consumer and a copy of such verification or judg-

ment will be mailed to the consumer by the debt

collector; and

(5) a statement that, upon the consumer’s written

request within the thirty-day period, the debt

collector will provide the consumer with the name

and address of the original creditor, if different

from the current creditor.

6 Nos. 06-2130, et al.

(There are additional subsections, but they do not require

discussion.) The required written notice must be sent to

“the consumer,” that is, to the person claimed to owe a

debt. The consumer’s lawyer is not that person. But if

the debt collector knows that the consumer is repre-

sented by a lawyer, then (with immaterial exceptions) he

may not communicate with the consumer directly.

§ 1692c(a)(2). He must go through the lawyer. The lawyer

receives the notice and shares it with, or explains it to,

his client. Hence the debt collector is communicating

with the consumer within the meaning of the Act,

which defines “communication” as “the conveying of infor-

mation regarding a debt directly or indirectly to any person

through any medium.” § 1692a(2) (emphasis added). The

lawyer is both ”any person” and “any medium.”

It would be passing odd if the fact that a consumer

was represented excused the debt collector from having

to convey to the consumer the information to which the

statute entitles him. For example, sections 1692g(a)(1)

and (2) provide that the required notice must state the

amount of the debt and the name of the creditor. Is it to be

believed that by retaining a lawyer the debtor disentitles

himself to the information? Or that the debt collector,

though knowing that the debtor is represented, can com-

municate directly with him in defiance of the principle that

once a party to a legal dispute is represented, the other

party must deal with him through his lawyer, and not

directly? We conclude that any written notice sent to the

lawyer must contain the information that would be re-

quired by the Act if the notice were sent to the consumer

directly. National Consumer Law Center, Consumer

Credit Law Manual § 8.02[5][b] (2004); cf. Heintz v. Jenkins,

514 U.S. 291 (1995).

Nos. 06-2130, et al. 7

The next question is whether debt collectors can, with-

out liability, threaten, make false representations to, or

commit other abusive, deceptive, or unconscionable acts

against a consumer’s lawyer, in violation of sections 1692d,

e, or f. These sections do not designate any class of persons,

such as lawyers, who can be abused, misled, etc., by debt

collectors with impunity. Section 1692d forbids “any

conduct the natural consequence of which is to harass,

oppress, or abuse any person in connection with the col-

lection of a debt” (emphasis added). Section 1692e forbids

a debt collector to “use any false, deceptive, or mislead-

ing representation or means in connection with the col-

lection of any debt.” And section 1692f forbids a debt

collector to “use any unfair or unconscionable means

to collect or attempt to collect any debt.”

It is true that a lawyer is less likely to be deceived,

intimidated, harassed, and so forth (for simplicity, we

shall assume that only deception is alleged) than a con-

sumer. But that is an argument not for immunizing prac-

tices forbidden by the statute when they are directed

against a consumer’s lawyer, but rather for recognizing

that the standard for determining whether particular

conduct violates the statute is different when the con-

duct is aimed at a lawyer than when it is aimed at a

consumer.

The courts have ruled that the statute is intended for the

protection of unsophisticated consumers (sophisticated

consumers presumably do not need its protection), so that

in deciding whether for example a representation made

in a dunning letter is misleading the court asks whether

a person of modest education and limited commercial

savvy would be likely to be deceived. Olson v. Risk Manage-

ment Alternatives, Inc., 366 F.3d 509, 512-13 (7th Cir. 2004).

8 Nos. 06-2130, et al.

The standpoint is not that of the least intelligent consumer

in this nation of 300 million people, Chuway v. National

Action Financial Services, Inc., 362 F.3d 944, 948-49 (7th Cir.

2004); Gammon v. GC Services Ltd. Partnership, 27 F.3d 1254,

1257 (7th Cir. 1994); cf. Clomon v. Jackson, 988 F.2d 1314,

1319 (2d Cir. 1993), but that of the average consumer in

the lowest quartile (or some other substantial bottom

fraction) of consumer competence. This is implicit in the

rule that a plaintiff cannot withstand summary judgment

just by presenting his affidavit that he was confused. Taylor

v. Cavalry Investment, LLC, supra, 365 F.3d at 574-75; Pettit

v. Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057,

1061-62 (7th Cir. 2000). He must show that he is repre-

sentative of the protected group. Chuway v. National Action

Financial Services, Inc., supra, 362 F.3d at 948.

But if the debt collector has targeted a particularly

vulnerable group—say, consumers who he knows have

a poor command of English—the benchmark for deciding

whether the communication is deceptive would be the

competence of the substantial bottom fraction of that group.

Cf. U.S.S.G. § 3A1.1 and Application Note 2; United States

v. Bragg, 207 F.3d 394, 399 n. 16 (7th Cir. 2000); United

States. v. Grimes, 173 F.3d 634, 638 (7th Cir. 1999).

By the same token, the “unsophisticated consumer”

standpoint is inappropriate for judging communications

with lawyers, Dikeman v. National Educators, Inc., 81 F.3d

949 (10th Cir. 1996), just as it is inappropriate to fix a

physician’s standard of care at the level of that of a med-

ical orderly. W. Page Keeton et al., Prosser & Keeton on the

Law of Torts § 32, p. 185 (5th ed. 1984). But what should

the standard be? Most lawyers who represent consumers

in debt collection cases are familiar with debt collection

law and therefore unlikely to be deceived. But sometimes

Nos. 06-2130, et al. 9

a lawyer will find himself handling a debt collection

case not because he’s a specialist but because a friend or

relative has asked him to handle it. His sophistication

in collection matters would be less than that of the special-

ist practitioner but much greater than that of the average

unsophisticated consumer. He would not have to be an

expert on the Fair Debt Collection Practices Act to be able

to look it up and discover what information sections

1652g(a)(3)-(5) require be disclosed to the consumer,

and then compare the requirements with the content of

the communication that he has received on his client’s

behalf. Since, therefore, most lawyers who represent

consumers in debt-collection cases are knowledgeable

about the law and practices of debt collection, since those

who are not should be able to inform themselves suf-

ficiently to be able to represent their consumer clients

competently, and since the debt collector cannot be ex-

pected to know how knowledgeable a particular con-

sumer’s lawyer is, we conclude that a representation by

a debt collector that would be unlikely to deceive a com-

petent lawyer, even if he is not a specialist in consumer

debt law, should not be actionable.

We have assumed for the sake of simplicity that the

communication to the lawyer is alleged to be deceptive;

what if instead it is alleged to be false or misleading, terms

also found in section 1692e? “Misleading” is similar to

“deceptive,” except that it can be innocent; one intends

to deceive, but one can mislead through inadvertence. A

sophisticated person is less likely to be either deceived or

misled than an unsophisticated one. That is less true if a

statement is false. A false claim of fact in a dunning letter

may be as difficult for a lawyer to see through as a con-

sumer. Suppose the letter misrepresents the unpaid

balance of the consumer’s debt. The lawyer might be

10 Nos. 06-2130, et al.

unable to discover the falsity of the representation with-

out an investigation that he might be unable, depending

on his client’s resources, to undertake. Such a misrep-

resentation would be actionable whether made to the

consumer directly, or indirectly through his lawyer.

We move now from the lawyer cases to the cases of

settlement offers communicated directly to consumers,

where there is no lawyer in the picture. But later we

shall have to bring the lawyer back into the picture in

order to round out our discussion of the difference be-

tween consumers and lawyers as recipients of potentially

misleading statements from debt collectors.

It is apparently common for debt collectors to send

letters to consumers that say such things as (these ex-

amples are all taken from the cases before us) “we would

like to offer you a unique opportunity to satisfy your

outstanding debt”—“a settlement of 25% OFF of your

current balance. SO YOU ONLY PAY $[___] In ONE

PAYMENT that must be received no later than 40

days from the date on this letter.” Or “TIME’S A

WASTIN’!. . .Act now and receive 30% off…if you pay by

March 31st.” Or we are “currently able to offer you a

substantial discount of 50% off your Current Balance if we

receive payment by 05-14-2004”(emphases in original). There

is nothing improper about making a settlement offer. The

concern is that unsophisticated consumers may think

that if they don’t pay by the deadline, they will have

no further chance to settle their debt for less than the full

amount; for the offers are in the idiom of limited-time or

one-time sales offers, clearance sales, going-out-of-business

sales, and other temporary discounts. In fact debt collec-

tors, who naturally are averse to instituting actual col-

lection proceedings for the often very modest sums in-

Nos. 06-2130, et al. 11

volved in the consumer debt collection business, fre-

quently renew their offers if the consumer fails to accept

the initial offer.

The objection to allowing liability to be based on such

offers is that the settlement process would disintegrate

if the debt collector had to disclose the consequences of

the consumer’s rejecting his initial offer. If he has to say,

“We’ll give you 50 percent if you pay us by May 14, but

if you don’t, we’ll probably offer you the same or even

better deal later, and if you refuse that, we’ll probably

give up and you’ll never have to pay a cent of the debt

you owe,” there will be no point in making offers. As in

previous cases in which we have created safe-harbor

language for use in cases under the Fair Debt Collection

Practices Act, see Veach v. Sheeks, 316 F.3d 690, 693-94

(7th Cir. 2003); Miller v. McCalla, Raymer, Padrick, Cobb,

Nichols, & Clark, L.L.C., 214 F.3d 872, 876 (7th Cir. 2000);

Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997); cf. Diaz v.

Prudential Ins. Co. of America, 424 F.3d 635, 637 (7th Cir.

2005); Herzberger v. Standard Ins. Co., 205 F.3d 327, 331 (7th

Cir. 2000), we think the present concern can be ade-

quately addressed yet the unsophisticated consumer

still be protected against receiving a false impression of

his options by the debt collector’s including with the

offer the following language: “We are not obligated to

renew this offer.” The word “obligated” is strong and

even the unsophisticated consumer will realize that there

is a renewal possibility but that it is not assured.

This is not to suggest that in the absence of safe-harbor

language a debt collector is per se liable for violating

section 1692 if he makes the kind of settlement offer that

we quoted. We see a potential for deception of the unso-

phisticated in those offers but we have no way of deter-

12 Nos. 06-2130, et al.

mining whether a sufficiently large segment of the unso-

phisticated are likely to be deceived to enable us to con-

clude that the statute has been violated. For that,

evidence is required, the most useful sort being the kind

of consumer survey described in Johnson v. Revenue Man-

agement Corp., 169 F.3d 1057, 1060-61 (7th Cir. 1999); see

also Pettit v. Retrieval Masters Creditors Bureau, Inc., supra,

211 F.3d at 1062.

Other circuits, perhaps less kindly disposed to survey

evidence than we, treat the deceptive character of a

debt collector’s communication as a question of law, so

that if the communication is not deceptive on its face,

the plaintiff is forbidden to try to show that it would be

likely to deceive a substantial number of its intended

recipients. We disagree with that position. The intended

recipients of dunning letters are not federal judges, and

judges are not experts in the knowledge and understand-

ing of unsophisticated consumers facing demands by

debt collectors. We are no more entitled to rely on our

intuitions in this context than we are in deciding issues

of consumer confusion in trademark cases, where the use

of survey evidence is routine.

But we emphasize that survey evidence in debt-collec-

tion as in trademark cases must comply with the prin-

ciples of professional survey research; if it does not, it is

not even admissible, Fed. R. Evid. 702; Citizens Financial

Group, Inc. v. Citizens National Bank of Evans City, 383 F.3d

110 (3d Cir. 2004); Scott Fetzer Co. v. House of Vacuums Inc.,

381 F.3d 477 (5th Cir. 2004); Starter Corp. v. Converse, Inc.,

170 F.3d 286, 296-97 (2d Cir. 1999), let alone probative of

deception. We are exceedingly doubtful that any lawyer

involved in representing debtors would be deceived by

the settlement offers made by debt collectors, and doubt

Nos. 06-2130, et al. 13

therefore that any cases based on such offers could sur-

vive summary judgment or even a motion to dismiss

were the offer directed to the consumer’s lawyer rather

than to the consumer. This illustrates our earlier point

about the importance of distinguishing between lawyers

and unsophisticated consumers in applying section 1692e.

The last question presented by these cases is whether

a claim of deception can ever be rejected in this circuit on

the pleadings, since we treat issues of deception as ones

of fact rather than of law. The answer is yes. A plain-

tiff might rest on the text of the communication, and

have no other evidence to offer, and then if there was

nothing deceptive-seeming about the communication the

court would have to dismiss the case. Taylor v. Cavalry

Investment, L.L.C., supra, 365 F.3d at 574-75 (“if it is ap-

parent from a reading of the letter that not even ‘a signifi-

cant fraction of the population’ would be misled by it . . . ,

the court should reject it without requiring evidence

beyond the letter itself”); McMillan v. Collection Profession-

als, Inc., supra, 455 F.3d at 760 (“undoubtedly, there will

be occasions when a district court will be required to

hold that no reasonable person, however unsophisticated,

could construe the wording of the communication in a

manner that will violate the statutory provision”). Or the

defendant might have used clear statutory language, as

in Jang v. A.M. Miller & Associates, 122 F.3d 480, 483-84

(7th Cir. 1997), or our safe-harbor language. There might

also be a case in which a false or deceptive statement

clearly was immaterial, as in Gutierrez v. AT&T Broadband,

LLC, 382 F.3d 725, 738-40 (7th Cir. 2004); see also Pettit v.

Retrieval Masters Creditor Bureau, Inc., supra, 211 F.3d at

1060-62, or was clarified elsewhere, as in McStay v. I.C.

System, Inc., 308 F.3d 188, 191 (2d Cir. 2002), or in which a

14 Nos. 06-2130, et al.

statement claimed to be false was obviously true, as in

Taylor v. Cavalry Investment, L.L.C., supra, 365 F.3d at 575-76.

Having answered the questions that we listed at the

beginning of our opinion, we can be brief in discussing

our four cases. In Lauer, the consumer was represented

by a lawyer. The defendant debt collector did not send

either the lawyer or his client the written notice required

by section 1692g, but instead sent the lawyer a letter

that the plaintiff characterizes as coercive because it

threatened to dispose of property of the plaintiff that

had a purely sentimental value, such as scrapbooks, a

wedding gown, and a videotape of the arrival of his

adopted child from Korea. The plaintiff doesn’t explain

which subsection of section 1692 the threat violates, but

it could well violate d, e, f, or indeed all three. The dis-

trict court dismissed the complaint on the ground that

communications with a consumer’s lawyer are beyond

the reach of the Fair Debt Collection Practices Act. That

was error.

The defendant in Lauer also argues that if the initial

communication from the debt collector is to the consumer’s

lawyer rather than to the consumer himself, the notice

requirement is not triggered. If you glance back at sec-

tion 1692g(a) you will see that it says that the written

notice is required to be sent “five days after the initial

communication with a consumer.” The argument is that if

there is no letter sent first (“initial communication”)

directly to the consumer, but instead the initial communi-

cation is to the consumer’s lawyer, the condition for

requiring the subsequent written notice containing speci-

fied information is not satisfied and therefore such a

notice need never be sent either to the lawyer or to the

consumer. All that this argument shows is how unsound

it would be to suppose that a communication to a per-

Nos. 06-2130, et al. 15

son’s lawyer is not a communication to the person. It

would make a consumer who had a lawyer worse off

than one who did not, because neither he nor his lawyer

would have a right to any of the information that the

statute requires be disclosed to the consumer.

In Captain, before realizing that the consumer was

represented, the defendant sent him a letter offering a

30 percent discount off the face amount of the debt, pro-

vided payment was received by a specified date. The

plaintiff claims that the letter violated section 1692e.

Shortly afterward, his lawyer called the defendant and

was told that if the debt wasn’t paid within two weeks of

the date of the initial collection letter (a deadline that had

already passed), a $15 daily charge would be added to

the account balance until the debt was paid in full. Such a

charge, equivalent to an interest rate of 730 percent a

year on the unpaid balance of the debt, would violate

Indiana law. See Ind. Code §§ 24-4.5-2-203.5, 207(3).

Although a violation of state law is not in itself a violation

of the federal Act, Beler v. Blatt, Hasenmiller, Leibsker &

Moore, LLC, 480 F.3d 470, 473-74 (7th Cir. 2007), a threat

to impose a penalty that the threatener knows is

improper because unlawful is a good candidate for a

violation of sections 1692d and e. The district court dis-

missed the complaint for failure to state a claim: the

settlement-offer charge on the ground that such offers are

per se lawful under the Act and the challenge to the

lawfulness of the $15 a day representation because it was

made to a lawyer. Both rulings were erroneous.

Evory and Jackson, the last two cases (actually sets of

cases, but that is of no moment), are pure settlement-offer

cases—there were no communications to lawyers. But

they are importantly different. In Evory the district court

16 Nos. 06-2130, et al.

dismissed the complaint, and that was error. But in Jackson

the court granted summary judgment for the defendant.

Much of the judge’s opinion tracks the discussion in

cases that hold that the kind of settlement offer involved

in these cases are nondeceptive per se, and that is wrong.

But the judge was willing to consider the survey evidence

that the plaintiff had introduced. He concluded that it

did not show that the settlement offer was deceptive. He

was right and indeed should have ruled the evidence

inadmissible. The plaintiff’s lawyer at the argument of the

appeal conceded that it was not a good survey. We would

put the matter more strongly. The respondents in the

survey were shown a letter similar to the one the plaintiff

had received. The key question they were asked was, “Let’s

say the person getting this letter does not accept the

settlement offer by the deadline date. Do you think that

person would feel it is a limited-time offer, or it is not a

limited-time offer?” By referring to “deadline date,” the

questioner signaled that it was a limited-time offer. Lead-

ing questions in surveys are improper. E.g., Scott Fetzer Co.

v. House of Vacuums Inc., supra, 381 F.3d at 488. And

“limited-time offer” was not defined. Nor should the

respondents have been asked what they thought some

other recipient of the letter would “feel,” especially since

they were given no information about the hypothetical

recipient. They should simply have been asked, “What do

you think would happen if you didn’t accept the offer? Do

you think it would be renewed or extended? Or do you

think this would be your last chance to get a discount off

the amount owed?”

There is compelling evidence that the offers in this and

the other cases were not final offers. But that means only

that if the offers were understood as such by the targeted

Nos. 06-2130, et al. 17

recipients, they were deceptive. The anterior issue is

whether they were likely to be understood as such by a

substantial number of unsophisticated consumers. Maybe

they were, but some evidence beyond the face of the

offer was required to establish a prima facie case, and it

was not presented.

So Jackson is affirmed; the other three decisions are

reversed and the cases remanded for further proceedings

consistent with this opinion.

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—10-23-07