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WITHERS v. EQUIFAX RISK MANAGEMENT SERVICES

March 3, 1999

GWENDOLYN J. WITHERS AND SAVA GRUJICH, PLAINTIFFS,
v.
EQUIFAX RISK MANAGEMENT SERVICES, A DIVISION OF EQUIFAX CREDIT INFORMATION SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Castillo, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiffs filed this putative class action against Defendants for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Plaintiffs allege that Equifax Risk Management Services ("Equifax") mailed Plaintiffs deceptive collection letters that overshadowed their rights under the FDCPA. Currently before the Court is Plaintiffs' motion for partial summary judgment on liability issues. For the reasons set forth below, Plaintiffs' motion is granted.

FACTS

The genesis of this dispute can be traced to two letters that Equifax mailed to Plaintiffs. On April 6, 1998, Equifax sent plaintiff Sava Grujich the following notice:

DEAR SAVA GRUJICH:

  AS INDICATED ABOVE, YOU HAVE FAILED TO REMIT THE FULL
  SERVICE CHARGE DUE ON YOUR ACCOUNT DESPITE A PREVIOUS
  NOTICE.
  TO ENSURE THAT YOUR OBLIGATION IS POSTED AS `PAID IN
  FULL,' AND TO CLEAR THIS ITEM FROM OUR COMPUTER
  FILES, PLEASE REMIT THE REMAINING AMOUNT DUE WITH THE
  BOTTOM PORTION OF THIS LETTER IN THE ENCLOSED REPLY
  ENVELOPE.
  EQUIFAX . . . THANK YOU IN ADVANCE FOR YOUR ATTENTION
  TO THIS AND YOUR CONTINUED PATRONAGE AT SERVICE
  MERCHANDISE.

Upon Victoria's Secret's request, Equifax mailed Gwendolyn Withers the following dunning letter on April 21, 1998:

Dear Ms. Withers:

  Your check . . . was returned by your bank unpaid
  because of NON-SUFFICIENT FUNDS. Additionally, you
  have incurred a $25.00 service charge which our
  client imposes for returned checks. This balance of
  $76.72 which you owe has now been assigned to EQUIFAX
  . . . FOR COLLECTION.
  This information has also been reported to Equifax
  Check Services whose check authorization and
  verification services are widely used by banks and
  business establishments nationally as a basis for
  check acceptance.
  EQUIFAX . . . urges you to promptly respond to this
  notice. IF THE BANK RETURN CODE ALLOWS, YOUR CHECK
  WILL BE REPRESENTED TO YOUR BANK. If the above
  information concerning this check is incorrect,
  please advise us so that we may correct our records
  and resolve this matter.
  THIS WILL BE CLEARED FROM OUR COMPUTER FILE WHEN IT
  IS PAID. IF YOU PAY BY DIRECT MAIL, CHECK WITH YOUR
  BANK BEFORE SENDING A CERTIFIED CHECK FOR THE FULL
  AMOUNT OF $76.72 TOGETHER WITH THE BOTTOM PORTION OF
  THIS LETTER TO EQUIFAX . . . WHOSE ADDRESS APPEARS
  BELOW.

On the back of both letters, Equifax posted what is commonly referred to as the "validation notice" required by the FDCPA, as well as certain disclosures ...


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