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COBB v. MONARCH FIN. CORP.

November 29, 1995

VERLINA COBB, on behalf of herself and all others similarly situated, Plaintiff,
v.
MONARCH FINANCE CORP.; COLE TAYLOR BANK; SIR FINANCE CORP.; BANK ONE, CHICAGO, N.A., Successor by Merger to BANK ONE, EVANSTON, N.A.; BROTHER LOAN & FINANCE CORP.; LAKESIDE BANK; AND JOHN DOES 1-10, Defendants.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Verlina Cobb brings this proposed class action against three finance companies (the "Lender Defendants"), three banks (the "Bank Defendants"), and unknown corporate officers of the finance companies and banks (the "John Doe Defendants"). Cobb alleges that, in the making and handling of loans that she borrowed from the Lender Defendants, the defendants violated various federal lending and banking laws; in addition, Cobb's complaint adds several state law claims. Presently before this court are: (1) the plaintiff's motion for class certification; (2) the Bank Defendants' motion to dismiss; (3) the Lender Defendants' motion to dismiss; and (4) the plaintiff's motion to "strike" a motion for summary judgment filed by one of the Bank Defendants. For the reasons set forth below, we grant the motion for class certification, grant in part and deny in part the Bank Defendants' motion to dismiss, grant in part and deny in part the Lender Defendants' motion to dismiss, and deny the plaintiff's motion to "strike" the summary judgment motion.

 I. Background

 From November 1993 to November 1994, Cobb procured a total of ten separate loans from three finance companies (collectively, the Lender Defendants): (1) four loans from Sir Finance Corporation, each with a principal of $ 690, an annual percentage rate of 101%, and payable in 19 bi-weekly payments; (2) five loans from Brother Loan & Finance Company, each with a principal of $ 700, an annual percentage rate of 96.43%, and payable in 14 bi-weekly payments; and (3) one loan from Monarch Finance Corporation, with a principal of $ 500, an annual percentage rate of 57.22%, and payable in 15 bi-weekly payments.

 Cobb alleges that the loan agreements she entered into with the Lender Defendants, although using different language, all created a similar payment mechanism. The bi-weekly loan repayment schedules corresponded to Cobb's employee pay schedule; at the time, she worked for the United States Department of Labor. Cobb maintains that each loan agreement purported to authorize the creation of a bank account on Cobb's behalf, to which an allotted portion of Cobb's paycheck was electronically and directly deposited. The allotment was then immediately transferred from Cobb's account to the finance company's account, held at the same bank. Each finance company designated a different bank at which the account would be created. The three banks (collectively, the Bank Defendants) were: (1) Bank One-Evanston, *fn1" designated by Sir Finance; (2) Lakeside Bank, designated by Brother Loan; and (3) Cole Taylor Bank, designated by Monarch Finance. Cobb also alleges that the agreements purported to waive her rights to receive "account statements or transaction reports" regarding the accounts.

 Cobb filed for Chapter 7 bankruptcy on February 3, 1995. At the time, she had not repaid in full her final loans from Sir Finance and Brother Loan, and had not repaid in full her one loan from Monarch Finance. After filing for bankruptcy, the plaintiff filed three separate actions, which have been reassigned and consolidated on relatedness grounds, and named as defendants the Bank Defendants, the Lender Defendants, and unknown corporate officers (collectively, the "John Doe Defendants") of the banks and finance companies.

 The plaintiff's consolidated complaint asserts seven counts: (1) the Lender Defendants and the Bank Defendants violated disclosure requirements and other provisions of the Electronic Fund Transfers Act (EFTA), 15 U.S.C. §§ 1693-1693r, and its implementing regulations, 12 C.F.R. part 205; (2) the Lender Defendants failed to inform Cobb that they had obtained a security interest in Cobb's bank accounts as required by 12 C.F.R. § 226.18(m), promulgated pursuant to the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1667e; (3) the Bank Defendants failed to meet the disclosure requirements of 12 C.F.R. §§ 230.4-230.6, promulgated pursuant to the Truth in Savings Act (TISA), 12 U.S.C. §§ 4301-4313; (4) the Bank Defendants, Lender Defendants, and John Doe Defendants obtained a wage assignment from Cobb without providing her with proper notice and opportunity to object, a violation of the Illinois Wage Assignment Act (IWAA), 740 ILCS 170/1-170/11; (5) the Bank Defendants and Lender Defendants entered into loan agreements with the plaintiff that were unconscionable under Illinois law; (6) the Bank Defendants, Lender Defendants, and John Doe Defendants violated a fiduciary duty owed to the plaintiff under 31 C.F.R. § 209.8; and (7) the Bank Defendants, Lender Defendants, and John Doe Defendants committed a deceptive practice under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 ILCS 505/1-505/12.

 The plaintiff moves to certify three classes, labelled as the Sir Finance/Bank One class, the Brother Loan/Lakeside class, and the Monarch/Cole Taylor class. In general, the proposed members of the respective classes consist of all persons who entered into finance agreements with the named finance companies and into account authorizations with the named banks using the same forms that Cobb signed. More specifically, the class members for Counts I-III would be limited to those persons who signed the documents within one year of this suit's filing date; the class members for Counts IV and VI would be limited to those persons who signed the documents within five years of this suit's filing date. Furthermore, the class members for Counts V and VII would be limited to those persons whose loans called for greater than a 40% annual percentage rate, and would be further limited to those persons who signed within five years for Count V and three years for Count VII. The defendants oppose class certification, arguing that the claims of the named plaintiff are atypical of the class's claims, and that the named plaintiff would serve as an inadequate class representative. We discuss the class certification issue first, then turn to the defendants' motions addressing the merits. See Hudson v. Chicago Teachers Union, Local No. 1, 922 F.2d 1306, 1316-17 (7th Cir.), cert. denied, 501 U.S. 1230, 111 S. Ct. 2852, 115 L. Ed. 2d 1020 (1991).

 II. Motion for Class Certification

 A. Requirements for Class Certification

 Federal Rule of Civil Procedure 23(a) specifies four preliminary requirements that any proposed class must meet:

 
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

 Fed. R. Civ. P. 23(a). If the "numerosity, commonality, typicality, and adequacy" requirements are satisfied, Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993) (citations omitted), then we must also decide whether the class qualifies under one of the three subsections of Rule 23(b). In the instant case, the plaintiff seeks certification under Rule 23(b)(3), which authorizes class actions where the "questions of law or fact common to the members of the class predominate over any questions affecting individual members, and [] a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed. R. Civ. P. 23(b)(3). The plaintiff bears the burden of showing that the proposed class meets the requirements for certification. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993).

 In evaluating a motion for class certification, the allegations made in support of certification are taken as true, Hardin v. Harshbarger, 814 F. Supp. 703, 706 (N.D. Ill. 1993), and as a general matter, we do not examine the merits of the case, Retired Chicago Police Ass'n, 7 F.3d at 598. However, the "'boundary between a class determination and the merits may not always be easily discernible,'" 7 F.3d at 599 (quoting Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 895 (7th Cir. 1981), cert. denied, 455 U.S. 1017, 102 S. Ct. 1710, 72 L. Ed. 2d 134 (1982)), because determining the propriety of class certification generally depends on factors "'enmeshed in the factual and legal issues comprising the plaintiff's cause of action,'" 7 F.3d at 598 (quoting General Tel. Co. v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982) (citation omitted)). Finally, claims arising out of form contracts are particularly appropriate for class action treatment. Haroco, Inc. v. American Nat'l Bank and Trust Co., 121 F.R.D. 664, 669 (N.D. Ill. 1988).

 B. Uncontested Requirements

 In light of these principles, we find that class certification is appropriate in the instant case. At this early stage of the litigation, *fn2" the defendants recognize that the numerosity and commonality prerequisites are satisfied here. Defs.' Class Cert. Resp. at 10 n.7. Apparently, hundreds of transactions meet the classes' definition, see Pl.'s Mot. for Class Cert. P 8(a)-(c); Defs.' Class Cert. Resp., Exs. B, C, and within each of the three proposed classes, the same standard form was used. In addition, the defendants--for now--do not challenge that a class action is superior to individual actions and that questions of law and fact common to the class predominate over individual questions. Thus, Rule 23(b)(3) authorizes certification.

 C. Typicality

 Accordingly, at this time the defendants argue against certification on only two grounds, specifically, that the named plaintiff fails to meet the typicality and adequacy prerequisites. In evaluating the typicality of a named plaintiff's claims, we

 
focus on whether the named representative['s] claims have the same essential characteristics as the claims of the class at large. "A plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory."

 De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983) (quoting H. Newberg, Class Actions § 1115(b) (1977)); Retired Chicago Police Ass'n, 7 F.3d at 597. Typicality might not be met, however, where the named plaintiff is subject to a "unique defense," Hardy v. City Optical, Inc., 39 F.3d 765, 770 (7th Cir. 1994), that will "distract[]" the named plaintiff and cause the representation of the class to "suffer," J.H. Cohn & Co. v. American Appraisal Assocs., 628 F.2d 994, 999 (7th Cir. 1980). For example, the named plaintiff's lack of injury might render him or her atypical. Katz v. Comdisco, Inc., 117 F.R.D. 403, 407 (N.D. Ill. 1987).

 The defendants argue that there exist two defenses unique to Cobb. First, the defendants assert that Cobb has suffered no injury because, at the time Cobb filed for bankruptcy, she had retained more in principal on her final loans than she had repaid. *fn3" The defendants argue that Cobb, who has filed for bankruptcy, thus actually profited from the transactions because the loans will be discharged.

 However, Cobb's ostensible net gains do not necessarily render her free from injury under the various claims that she brings. First, Cobb did repay the first three loans from Sir Finance, the first four loans from Brother Loan, and part of the loan from Monarch. Cobb may recover actual damages resulting from the federal statutory violations, EFTA, 15 U.S.C. § 1693m(a)(1); TILA, 15 U.S.C. § 1640(a)(1); TISA, 12 U.S.C. § 4310(a)(1), and in this case, actual damages could encompass the amount of interest that the defendants collected--illegally, according to Cobb--from the named plaintiff. *fn4" While it is true that the final loan balances might be discharged in bankruptcy, that does not change the alleged injury suffered by Cobb, namely, the interest payments she made on the allegedly unlawful loans. Finally, apart from actual damages, Cobb also seeks to recover statutory damages, a claim typical to the class. EFTA, 15 U.S.C. § 1693m(a)(2)(B); TILA, 15 U.S.C. § 1640(a)(2)(B); TISA, 12 U.S.C. § 4310(a)(2)(B). Accordingly, we conclude that lack of injury is not a defense so unique to Cobb that she will be distracted from representing the class claims.

 Next, the defendants argue that the named plaintiff is subject to another unique defense, specifically, that Cobb did not have any "accounts" within the meaning of the relevant federal statutes because (a) the number of paycheck allotments she made absolutely precludes her from statutory protection, and (b) she testified in her bankruptcy proceeding that she was unaware of the bank accounts created in her name. Although these contentions tread precariously close to arguments on the merits, we can readily address them for purposes of class certification. First, the defendants argue, two is the maximum number of paycheck allotments to a savings account under a Department of Treasury regulation, 31 C.F.R. § 209.3(b)(3), and Cobb had three paycheck allotments concurrently. This purportedly unique defense will not distract Cobb from class representation. It is the head of the employing agency, not the employee, that is directed to follow the limit on the number of paycheck allotments, § 209.3(b), and the number of allotments is in no way ...


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