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CARBAJAL v. CAPITAL ONE

January 20, 2004.

MOISES CARBAJAL; GEORGIA REDD; and RON BUTLER, Plaintiffs,
v.
CAPITAL ONE, F.S.B.; CAPITAL ONE SERVICES, INC.; and WESTMORELAND AGENCY, INC., Defendants



The opinion of the court was delivered by: MATHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Moises Carbajal, Georgia Redd, and Ron Butler have sued Capital One, FSB, Capital One Services, Inc., and Westmoreland Agency, Inc., for alleged violations of the Fair Debt Collection Practices Act. Plaintiffs received solicitations from the defendants to transfer delinquent debts owed to other creditors to a new Capital One Visa credit card account. They contend that this constituted debt collection activity subject to the FDCPA, and they assert that Capital One's solicitation improperly obscured the FDCPA-required "Validation" notice and misleadingly advised debtors that they would still be able to dispute the old debt after its transfer to Capital One. The Court previously denied defendants' motion to dismiss plaintiffs' third amended complaint for failure to state a claim. Carbajal v. Capital One, FSB, No. 03 C 1123, 2003 WL 22595265 (N.D. Ill. Nov. 10, 2003). Plaintiffs have moved to certify two classes, consisting of all persons in Illinois (Class A) and Indiana (Class B) to Page 2 whom defendants sent similar solicitations on or after February 13, 2002. For the reasons stated below, the Court grants plaintiffs' motion.

Discussion

  To obtain class certification, plaintiffs must satisfy the four requirements of Federal Rule of Civil Procedure 23(a) and one of the requirements of Rule 23(b). E.g., Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993). Rule 23(a)'s four requirements for class certification are that (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 representatives' claims or defenses are typical of those of the class; and (4) the representatives will fairly and adequately represent the interests of the class. See Fed.R.Civ.P. 23(a). Plaintiffs seek certification of both classes under Rule 23(b)(3), which requires, in addition to the above, a showing that questions of law or fact common to all class members predominate over individual issues, and that the class action mechanism is superior to other available means of adjudicating the controversy. See Fed.R.Civ.P. 23(b)(3). We deal with each of these requirements in turn, following the Supreme Court's admonition that we must conduct a "rigorous analysis" of whether the proposed classes satisfy Rule 23's requirements. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982).

 1. Rule 23(a) requirements

  Though plaintiffs have not attempted to quantify the members of the proposed classes, it is undisputed that Rule 23(a)'s numerosity requirement is met. The proposed classes also satisfy the Rule's commonality requirement. Rule 23(a) requires only that there be at least one issue common to all class members, so long as the issue is one whose determination will advance the litigation. See, e.g., Page 3 Alkire v. Irving, 330 F.3d 802, 819 (6th Cir. 2003); Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993). In this case, the claims of each of the class members arise from the receipt of one or more of a series of mass mailings; the plaintiffs challenge those mailings' compliance with the FDCPA. This is sufficient to meet Rule 23(a)'s commonality requirement. "Common nuclei of fact are typically manifest where, like in the case sub judice, the defendants have engaged in standardized conduct towards members of the proposed class by mailing to them allegedly illegal form letters or documents." Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998).

  A named plaintiffs claim is considered typical of the claims of the class for purposes of Rule 23(a) if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the other class members and is based on the same legal theory as those of the class members. Keele, 149 F.3d at 594; De La Fuente v. Stokely-Van Camp, Inc., 713 F.3d 225, 232 (7th Cir. 1983). This is plainly so with regard to the named plaintiffs' FDCPA claims in this case. Page 4

  Defendants do not dispute that Redd's claims are typical of those of the class. Defendants argue, however, that the other named plaintiffs' claims are not typical because those plaintiffs are subject to unique defenses not applicable to class members generally. The claims of a proposed class representative are considered atypical if the representative is subject to a unique defense that is reasonably likely to be a major focus of the litigation. See Rainy Lake One Stop, Inc. v. Marigold Foods, Inc., 195 F.3d 430, 437 (8th Cir. 1999); Koos v. First National Bank, 496 F.2d 1162, 1164 (7th Cir. 1974). To put it another way, if the class representative is likely to be preoccupied with a unique defense, his claims are atypical. In re CBC Companies, Inc. Collection Letter Litigation, 181 F.R.D. 380, 385 (N.D. Ill. 1998).

  Defendants contend that the claims of Carbajal and Butler are atypical because those plaintiffs are subject to setoffs arising from prior accounts they had with Capital One unrelated to the debts that were the subject of the solicitations they challenge in this case. Specifically, Carbajal is claimed to have previously had a "small business" credit card account with Capital One on which, defendants contend, he defaulted and on which the balance due is just over $2,000. Carbajal is also claimed to have had a separate Capital One credit card account on which he defaulted in 1998; he allegedly obtained a new Capital One credit card account in September 2002 to which the balance from the old account was transferred. Defendants contend that the balance due on this account at the time the present suit was filed was just over $1,000, but they do not contend that the account is in default. Butler is claimed to have a car loan with Capital One on which he owes about $6,000; defendants do not contend that the loan is in default.

  Defendants have made only a half-hearted effort to show that these purported setoffs are likely to become a focus of the litigation, let alone a major focus. First of all, defendants do not contend that the referenced prior debts of Carbajal and Butler are in any way related to their debts that were involved in the solicitations challenged in this case. Second, Butler's car loan and Carbajal's second ($1,000) credit card debt are not claimed to be in default; put another way, there is no contention that either Butler or Carbajal has breached any contract or other obligation with regard to these debts.

  Defendants' suggestion that unrelated, unmatured debts may be set off against a debt collector's liability under the FDCPA is unpersuasive, and again defendants have made only the barest of efforts to argue the point. They cite (in a footnote!) only an Indiana case indicating that under that state's common law, a bank may set off the account of a depositor against an unmatured debt owed to Page 5 the bank. See First Bank of Whiting v. Samocki Bros. Trucking Co., 509 N.E.2d 187, 198 (Ind. App. 1987). But Carbajal lives in Illinois, not Indiana, and the law in Illinois is different: an Illinois bank may set off funds on general deposit only against matured debts, absent express authority to the contrary (which defendants have not suggested exists in Carbajal's case). Tri State Bank of East Dubuque v. Colby, 141 Ill. App.3d 807, 811, 490 N.E.2d 1037, 1039 (1986).*fn1

  Perhaps more importantly, defendants have cited no authority suggesting that either Illinois' or Indiana's common law rule regarding setoffs supports allowing a defendant to offset the plaintiffs' unrelated debts against defendants' alleged liabilities under the FDCPA. The general rule that applies to common law setoffs is that they are permitted "only when the debts are `mutual,' and debts arising at different times out of different circumstances are not mutual." Soo Line R. Co. v. Escabana & Lake Superior R. Co., 840 F.2d 546, 551 (7th Cir. 1988). Though supposedly offsetting obligations "held by the same parties in the same capacity (that is, as obligor and obligee)" may be considered mutual and thus subject to common law setoff, In re Doctors Hospital of Hyde Park, Inc., 337 F.3d 951, 955 (7th Cir. 2003), such is not the case here: an obligation that exists pursuant to a liability imposed by a federal statute is not held "in the same capacity" as a contractual debt. Defendants cite no authority for the proposition that an entity liable for statutory damages for violating a federal statute like the FDCPA would be entitled to offset unrelated (let alone unmatured) debts. Rather, the cases they cite involved the offset of the very debts out of which the plaintiffs' claims arose. See, e.g., Channell v. Page 6 Citicorp National Services, Inc., 89 F.3d 379 (7th Cir. 1996). Even if debts of that type satisfy the "mutuality" test, the debts of Carbajal and Butler identified by defendants are not of that type. In sum, there is no basis to believe that any defenses particular to Carbajal and Butler will be a focus of the litigation or will divert their attention or that of class counsel.*fn2 The Court finds that each of the named plaintiffs' claims is typical of those of the class within the meaning of Rule 23(a).

  The final requirement of Rule 23(a) is that the proposed representatives will fairly and adequately represent the interests of the class. This requirement "has three elements: (1) the chosen class representative cannot have antagonistic or conflicting claims with other members of the class,. . . (2) the named representative must have sufficient interest in the outcome to ensure vigorous advocacy,. . . and, (3) counsel for the named plaintiff must be competent, experienced, qualified, and generally able to conduct the proposed litigation vigorously." Gammon v. GC Services Ltd. Partnership, 162 F.R.D. 313, 317 (N.D. Ill. 1995) (citations and internal quotation marks omitted). Defendants do not contest the competence of class counsel, the law firm of Edelman, Combs & Latturner, and the Court has rejected defendants' argument that Carbajal and Butler have antagonistic interests due to their other alleged debts owed to Capital One. Defendants argue, however, that each of the plaintiffs is confused regarding the claims made in the case, that Redd made misrepresentations in her deposition, and that Butler has conflicting interests because he wants to keep his involvement in this case from his employer and because, as a plaintiff in a number of other consumer-law cases, he is effectively dependent on the Page 7 Edelman firm.

  The Court disagrees. What defendants characterize as confusion regarding the sequence of events is more likely attributable to the fact that defendants sent repeated similar mailings, and what they characterize as confusion about legal matters is more likely attributable to the plaintiffs' lack of sophistication and relative unfamiliarity with the inner workings of federal civil litigation. In any event, as our colleague Judge Ruben Castillo noted in the Gammon case,
[t]hese facts are entitled to little weight . . . when assessing adequacy of representation. As the Seventh Circuit has stated, "[T]he class representative's role is limited. It was found not to be enough to defeat a class certification in Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 366 (1966), that the named plaintiff did not understand her complaint at all, could not explain the statements in it, had little knowledge of what the lawsuit was about, did not know ...

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