The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff David Wilson moved for certification of a class of debtors
affected by an alleged violation of the Fair Debt Collection Practices
Act ("FDCPA"), 15 U.S.C. § 1692 et seq. by Defendant Collecto, Inc.
("Collecto"). Collecto filed a memorandum in opposition to class
certification. For the reasons discussed below, plaintiff's motion is
In a letter dated July 9, 2002 (the "First Letter"), Defendant informed
Plaintiff that his account with Cingular Wireless ("Cingular") had been
placed with Defendant for collection. In accordance with the FDCPA, the
letter further stated that
[u]nless you dispute the validity of your debt, or any
portion thereof, within thirty days after receipt of
this notice, we shall assume the debt to be valid. If
you notify us in writing of your dispute within this
thirty day period, we will obtain verification of
the debt, or a copy of a judgment against you, and a
copy of such verification or judgment will be mailed
to you. Upon your written request within the thirty
day period, we will provide you with the name and
address of the original creditor, if different from
the current creditor.
Plaintiff did not respond to the First Letter. In a letter dated August
7, 2002 (the "Second Letter"), Defendant informed Plaintiff that
[a]s a result of your continued failure to liquidate
the above reference [sic] account, we have on this day
informed our client that you have not paid this debt
or made arrangements to pay. You should know that our
client has the right to take further steps to collect
Your unpaid account can negatively affect your
credit for many years. If you can't pay this in
full, please call to discuss a payment arrangement
We urge you to contact this office today.
Plaintiff filed the Complaint in this action on July 7, 2003, alleging
that Collecto violated § 1692g of the FDCPA when it sent the Second
Letter within thirty days of the First Letter, thus overshadowing and
rendering ineffective the notice provided in the First Letter.*fn1
Plaintiff asserted that he brought the action on behalf of all consumer
debtors in Illinois from whom Defendant attempted to collect debts using
letters such as the First and Second Letters where the Second Letter was
sent within 30 days of the First Letter.*fn2
On July 8, 2003, Plaintiff filed a Chapter 13 bankruptcy petition,
listing his claim against Defendant as "Property Claimed as Exempt" with
a listed value of $1000. On October 29, 2003, Bankruptcy Judge Black
issued an order confirming plaintiff's Chapter 13 plan.
Rule 23(a) of the Federal Rules of Civil Procedure provides the
threshold requirements for all federal class action suits: (1) numerosity
(the class must be so large "that joinder of all members is
impracticable"); (2) commonality (there must exist "questions of law or
fact common to the class"); (3) typicality (named parties* claims "are
typical . . . of the class"); and (4) adequacy of representation (the
representative must be able to "fairly and adequately protect the
interests of the class"). Keele v. Wexler, 149 F.3d 589, 594 (7th Cir.
1998) (citing Amchem Products. Inc. v. Windsor, 521 U.S. 591, 613, 117
S.Ct. 2231, 2245, 138 L.Ed.2d 689 (1997)).
Additionally, a party seeking certification of a class must show that
the proposed class satisfies one of the requirements set forth in Rule
23(b). In this case, Plaintiff requests that the Court certify the class
pursuant to Rule 23(b)(3). This subsection applies when "the questions of
law or fact common to the members of the class predominate over any
questions affecting only individual members, and that 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).
"[T]he party seeking class certification assumes the burden of
demonstrating that certification is appropriate." Retired Chicago Police
Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993) (citing Trotter
v. Klincar, 748 F.2d 1177, 1184 (7th Cir. 1984)). In determining whether
a party has carried this burden, a court need not accept all of the
complaint's allegations as true. Szabo v. Bridgeport Machines, Inc.,
249 F.3d 672, 675 (7th Cir. 2001). Rather, in deciding whether to certify
a class, a judge "should make whatever factual and legal inquiries are
necessary under Rule 23." Id. at 676.
In order to satisfy the requirement of numerosity, Plaintiff must show
that the number of members in the class is so large that joinder would be
impracticable. Fed.R.Civ.P. 23(a). Defendant correctly points out that
this standard requires Plaintiff to show that such joinder would be
extremely difficult or inconvenient. See Dants v. USN Communications,
Inc., 189 F.R.D. 391, 399 (N.D. Ill. 1999). "The exact numbed of class
members need not be pleaded or proved, but impracticability of joinder
must be positively shown, and not merely speculative." Keele v. Wexler,
No. 95 C 3483, 1996 WL 124452, *3 (N. D. Ill. Mar. 19, 1996); Gomez v.
Cumerford, 883 F. Supp. 702, 706 (N.D. Ill. 1993).
Plaintiff has asserted 280 potential members of this class. Defendant
attempts to limit this number, arguing that Plaintiff has pled that only
35 debtors actually received the Second Letter within 30 days of the
first. As discussed below, Plaintiff has pled a sufficient cause of
action on behalf of the class of debtors who received letters that were
sent within the 30 day period. Given the number of potential
claimants, and considering the fact that individual plaintiff's in this
case would be unlikely to sue on their own, the ...