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WILSON v. COLLECTO

February 24, 2004.

DAVID WILSON, individually and on behalf of all others similarly situated, Plaintiff,
v.
COLLECTO, Inc., a Massachusetts corporation, d/b/a Collection Company of America, Defendant



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 granted,
BACKGROUND
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. Page 2

  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 this account.
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 today.
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. Page 3

  LEGAL STANDARDS

  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. Page 4

  ANALYSIS

 I. Numerosity

  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 ...


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