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Mace v. Van Ru Credit Corporation

March 17, 1997

STELLA B. MACE F/K/A STELLA B. SERVERA, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED,

PLAINTIFF-APPELLANT,

v.

VAN RU CREDIT CORPORATION, ROGER J. RUBIN, AND ALBERT G. RUBIN,

DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 94 C 7450

Before CUDAHY, KANNE, and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge.

John A. Nordberg, Judge.

ARGUED SEPTEMBER 13, 1996

DECIDED MARCH 17, 1997

The question before us is whether the existence of a damage limitation or cap in the Fair Debt Collection Practices Act (FDCPA) has a bearing on the sort of class action that may be brought under that statute. Specifically at issue is whether the district court correctly found an implicit qualification to the statute's plain language, requiring the class to be nation-wide.

We review the district court's denial of class action certification under the FDCPA and under the Wisconsin Consumer Act. 15 U.S.C. sec. 1692 et seq.; Wis. Stat. sec. 427.104(l). The district court had jurisdiction under 15 U.S.C. sec. 1692k(d), 28 U.S.C. sec. 1331 and 28 U.S.C. sec. 1367. Although denials of class certification are generally not independently appealable, Coopers & Lybrand v. Livesay, 437 U.S. 463, 470 (1978) ("orders relating to class certification are not independently appealable under [28 U.S.C.] sec. 1291 prior to judgment"), the district court has certified an interlocutory appeal pursuant to 28 U.S.C. sec. 1292(b), to which we have assented. See Hewitt v. Joyce Beverages, 721 F.2d 625 (7th Cir. 1983); Susman v. Lincoln Am. Corp., 561 F.2d 86, 87 n.1 (7th Cir. 1977).

Ordinarily a denial of class certification is reviewable for abuse of discretion. 28 U.S.C. sec. 1292(b); Hewitt, 721 F.2d at 627; Susman, 561 F.2d at 90. But here the district court has determined that the FDCPA bars serial class action suits. This determination is purely legal, and we review de novo.

Because we have not yet been presented with a series of class actions and the central determination of the district court is therefore at best premature, we find no reason to go beyond the plain language of the statute. We therefore vacate and remand.

I. Factual Background

Stella B. Mace brought this action on behalf of herself and all others residing in Wisconsin who received certain collection letters from Van Ru Credit Corporation, Roger J. Rubin or Albert G. Rubin (collectively "Van Ru"). Van Ru is one of several business entities owned in whole or in major part by Roger Rubin. The intertwined nature of these debt collection businesses and attorney Roger Rubin's law firm is fully described in Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996).

Mace alleges that Van Ru mailed eleven different collection letters that violated the FDCPA. 15 U.S.C. sec. 1692. The alleged violations include (1) collection letters mailed over the printed signature of an attorney when no attorney was involved in sending the letters or in verifying the creditor's claim; (2) collection letters demanding payment within the thirty day validation period upon the threat of "additional proceedings" or a "civil suit"; (3) collection letters containing language that overshadowed and contradicted the statutorily required thirty day notice of the consumer's right to verification of the debt; and (4) collection letters that threatened action that Van Ru and Rubin did not intend to take and could not have taken legally.

This is not Van Ru's first encounter with the FDCPA. See Avila, 84 F.3d 222; Drennan v. Van Ru Credit Corp., ___ F. Supp. ___, 1996 WL 751100 (N.D. Ill. 1996); Sower v. Van Ru Fin. Servs., Inc., 1995 WL 870853 (D. Minn. 1995); Woolfolk v. Van Ru Credit Corp., 783 F. Supp. 724 (D. Conn. 1990); Bitume v. Van Ru Credit Corp., 1990 WL 129580 (N.D. Ill. 1990). We recently upheld a state-limited (to Connecticut) class action under the FDCPA against Van Ru and Roger Rubin (Van Ru's principal owner). Avila, 84 F.3d 222. In the Avila proceedings, we affirmed a district court finding that Rubin and Van Ru had violated the FDCPA by using certain form collection letters. Id. at 229. Despite losing the Avila litigation, Rubin and Van Ru allegedly maintained their debt collection practices unchanged for at least some period of time, giving rise to some of the claims at issue in this lawsuit. Other claims in the present suit derive from letters mailed at about the same time as in Avila, but in Wisconsin rather than in Connecticut. *fn1

II. Availability of a Class Action Under the FDCPA

The FDCPA was enacted in part "to eliminate abusive debt collection practices by debt collectors . . . ." 15 U.S.C. sec. 1692(e). The statute is designed to protect consumers from unscrupulous collectors, regardless of the validity of the debt. Baker v. G.C. Servs. Corp., 677 F.2d 775, 777 (9th Cir. 1982). The FDCPA defines a debt collector as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. sec. 1692a(6). "Any person" includes ...


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