improperly leads consumers in other states to believe that
Colorado residents alone have the right to notify the debt
collector in writing to cease contacting the debtor by telephone
at the place of their employment. Jenkins v. Union Corp.,
999 F. Supp. 1120, 1138-39 (N.D.Ill. 1998) (finding that the letter's
inclusion of selected state law on a consumer's right to request
cessation of contact that failed to include analogous FDCPA
provisions was misleading and unfair). Nevertheless, Equifax
argues that summary judgment is not warranted because a) unlike
the Colorado Notification, the Massachusetts Notification
describes rights not afforded to Illinois residents and b) this
Court should excuse Equifax's inclusion of the Colorado
Notification as a bona fide error of law. We disagree.
First, the Massachusetts Notification differs from the Colorado
Notification (and all consumers' rights under the FDCPA) in only
one regard: while all consumers have the right to notify debt
collectors in writing to cease contacting them at their place
of employment, Massachusetts' residents can trigger this right
both orally and in writing. This distinction is so
insubstantial that Equifax's Massachusetts Notification does not
escape the impact of this Court's reasoning in Jenkins.
Next, we reject Equifax's attempt to seek shelter under the
bona-fide error of law exception to FDCPA liability. Jenkins v.
Heintz, 124 F.3d 824, 828 (7th Cir. 1997) (FDCPA absolves a debt
collector whose "violation was unintentional and occurred despite
the existence of reasonable procedures to prevent it."). Under
this exception, the debt collector must prove both that the
violation was unintentional and that the error occurred despite
the maintenance of procedures reasonably adapted to avoid any
such error. Id.; 15 U.S.C. § 1692k(c). Drawing every inference
in Equifax's favor, we find that it cannot make such a showing.
Prior to Equifax's issuance of Plaintiffs' letters, three
district courts had ruled on the validity of including the
Colorado Notification without explaining all consumers' rights
under the FDCPA. The first decision, Brown v. ACB Business
Serv., Inc., 1996 WL 469588, at *3 (S.D.N.Y. 1996), found that,
although "the least sophisticated consumer could be misled as to
the scope of his or her rights by the state disclosures," the
debt collector would not be held liable under the FDCPA for
failing to clarify this confusion because "Congress did not
include in the FDCPA a mandatory notification provision with
respect to the FDCPA itself."
Shortly thereafter, the Western District of Wisconsin agreed
that the Colorado Notification, standing alone, was confusing to
debtors, but rejected the Brown court's conclusion that courts
were constrained from requiring debt collectors to inform all
consumers of their FDCPA rights when including the Colorado
Notification. See D. Slotten v. Collections Unlimited, Inc.,
No. 96 C 0920 (W.D.Wis. Feb. 26, 1997) (Debt collector's failure
to explain a debtor's rights in light of the Colorado
Notification violated the FDCPA.). Similarly, in Jenkins v.
Union Corp., this Court ruled that the inclusion of the Colorado
Notification alone would confused unsophisticated consumers and,
therefore, debt collectors must explain that these rights are
afforded to all consumers under the FDCPA. 999 F. Supp. at
Although Equifax argues that this split of authority justified
its continued use of the Colorado Notification without further
explanation, we disagree. Initially, we note that all three
courts to address the issue found the inclusion confusing to
consumers. More importantly, nine months before Equifax issued
Plaintiffs' letters, Equifax agreed, as part of a court
negotiated settlement, to discontinue sending letters in the form
at issue. Young v. Equifax, No. 97 C 3289 (N.D.Ill. July 25,
1997). The evidence shows that, despite this agreement, Equifax
allowed some of its letters to retain the offending Notification
without further clarification. We find that Equifax cannot
demonstrate that its violation
was unintentional, and therefore, cannot satisfy the bona-fide
error of law standard.
Plaintiffs have demonstrated that Equifax's inclusion of the
Massachusetts and Colorado Notifications, without explaining
their relation to all consumers' rights, violates the FDCPA.
Because Equifax had agreed to rectify the confusion created by
the inclusion of these provisions long before it mailed
Plaintiffs' letters, the bona-fide error of law exception to
liability does not apply. Finally, Mr. Grujich has produced
sufficient evidence to establish that his transaction is covered
by the FDCPA. Therefore, Plaintiffs' motion for partial summary
judgment (19-1) is granted in its entirety.
Given our rulings herein, and after careful review of the
relevant pleadings, Plaintiffs' motion for class certification is
hereby granted (20-1). See Keele v. Wexler, 149 F.3d 589 (7th
Cir. 1998) (affirming trial court's grant of class certification
in FDCPA action); Wilborn v. Dun & Bradstreet Corp., 180 F.R.D.
347 (N.D.Ill. 1998); Sledge v. Sands, 182 F.R.D. 255, 258
(N.D.Ill. 1998) (finding that class certification was warranted
even though plaintiff could not prove that all possible class
members had incurred personal, as opposed to business, debts).
The Clerk of the Court is directed to enter judgment on
liability, pursuant to Fed.R.Civ.P. 58, in favor of Plaintiff
class and against Defendant. The Court will retain jurisdiction
to address the remaining issues of appropriate damages,
attorneys' fees, and notice to the class. A status hearing will
be held on March 31, 1999 at 9:00 a.m. to address these issues.
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