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ROBLES v. CORPORATE RECEIVABLES

March 2, 2004.

JOSE ROBLES, individually and on behalf of all others similarly situated, Plaintiff,
v.
CORPORATE RECEIVABLES, INC., an Arizona corporation Defendant



The opinion of the court was delivered by: IAN LEVIN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff's renewed motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. For the reasons hereinafter set forth, the Court grants Plaintiff's motion,
BACKGROUND FACTS*fn1
On July 2, 2002, Plaintiff Jose Robles ("Plaintiff") filed a class action complaint against Defendant Corporate Receivables, Inc. ("Defendant"), alleging that Defendant violated the Fair Debt Collection Practices Act ("FDCPA"). 15 U.S.C. § I692 et seq. Plaintiff bases his complaint on three separate debt collection letters. (Complt. ¶¶ 5, 6, 7.) In his complaint, Plaintiff alleges that the second and third letters were sent within thirty days of the initial validation letter, thus rendering the thirty Page 2 day validation language of the first letter ineffective. (Id. ¶¶ 6, 7, 9.)

  Specifically, Plaintiff complains that the second letter ("Letter 2"), which was sent thirteen days after the initial validation letter ("Letter 1"), made it appear that the validation period referenced in Letter 1 had expired by admonishing Plaintiff that Defendant had not received a response or suitable resolution of the debt it was attempting to collect.*fn2 (Complt. ¶¶ 6, 9.) Thus, Letter 2 made it appear that the time to seek validation had expired, when in fact, more than two weeks remained in the validation period, (Id. ¶ 9.) Plaintiff further avers that the third letter ("Letter 3"), which was sent twenty-nine days after Letter 1, stated that Plaintiff's silence was interpreted as a refusal to pay which reinforced Defendant's message that the time to dispute the debt had passed, when in fact it had not.*fn3 (Id. ¶¶ 7, 9.) Therefore, Plaintiff alleges that the statements in Letters 2 and 3, individually or collectively, would confuse the unsophisticated consumer by creating a false sense of urgency as to whether the thirty-day (i.e., from the date of receipt of the initial validation letter or Letter 1) validation period had already expired and whether the consumer must act immediately or would have the full thirty days to dispute the validity of the alleged debt. (Id. ¶ 9.)

  Plaintiff seeks to certify a class of all Illinois residents which Defendant sought to collect consumer debts from the period July 2, 2001 through July 2, 2002,*fn4 allegedly owed to Household Page 3 Bank (SB), N.A., by sending Letters 2 and 3 (or similar letters) within thirty days of Letter 1 (or similar initial validation letters). (Complt. ¶ 11; Pl.'s Mem. at 2.) The class Plaintiff seeks to certify consists of 102 individuals from whom Defendant attempted to collect said consumer debts. (Pl.'s Ex. J.)

  CLASS CERTIFICATION STANDARDS*fn5

  Rule 23 of the Federal Rules of Civil Procedure sets forth the relevant standards for maintaining class action suits in federal court. Fed.R.Civ.P. 23. In order to bring a class action suit, a plaintiff must establish that the lawsuit meets the four requirements delineated in Rule 23(a) which include: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.*fn6 Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Fed.R. Civ. P.23(a). These elements are a prerequisite to certification, and the failure to meet anyone of the four elements precludes certification of a class. Retired Chicago Police Assoc. v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993); Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993); General Tel Co. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 2369, 72 L.Ed.2d 740 (1982)(the plaintiff must meet "`the prerequisites of numerosity, commonality, typicality, and adequacy of representation' specified in Rule 23(a)"). In addition, if each of those elements are Page 4 satisfied, then a plaintiff must satisfy one of the three requirements of Rule 23(b).*fn7 Amchem Products, Inc., 521 U.S. at 614, 117 S.Ct. 2231, 138 L.Ed.2d 689; Fed.R.Civ.P. 23(b).

  The party seeking class certification bears the burden of demonstrating that certification is appropriate. Retired Chicago Police Assoc., 1 F.3d at 596. In addition, a district court has broad discretion in determining whether certification of a class is proper. Id.

  ISSUE

  As seen, the Plaintiff charges that Defendant's form debt collection letters violated the FDCPA because the validation notice mandated by § 1692g of the FDCPA — advising consumers they have thirty days to dispute the debt — was overshadowed and thus rendered ineffective, by Defendant's second and third form debt collection letters. (Pl.'s Reply at 1.)

  Plaintiff avers that class certification is appropriate herein because all of the requirements of Rule 23(a) (i.e., numerosity, commonality, typicality, and adequacy of representation) have been satisfied. (Pl.'s Mem. at 3.) Moreover, Plaintiff asserts that Rule 23(b)(3.) has been satisfied because questions of law or fact common to the members of the class predominate over any questions affecting only the individual members of the class, and a class action, herein, is superior to other available methods for the fair and efficient adjudication of this controversy. (Id.) Defendant, on the other hand, contends that class certification is improper because it has unique defenses to Plaintiffs claims; therefore, Plaintiff is unable to show that his claims are typical or common to the class, that he is an adequate class representative, and that his claims predominate over questions affecting the Page 5 class as a whole. (Def.'s Mem. at 3-9.) Therefore, according to Defendant, the Court should deny Plaintiff's renewed motion for class certification. (Id.)

  DISCUSSION

 I. TYPICALITY

  Plaintiff avers that the typicality requirement of Rule 23(a)(3) is satisfied because his claims are typical of the claims of the class because they are brought pursuant to the FDCPA and relate to the identical form debt collection letter, and, therefore, involve the same course of conduct by Defendant. (Pl.'s Mem. at 5.) Defendant, on the other hand, asserts that there are numerous defenses which are unique to Plaintiff that prevent him from meeting the typicality requirement of Rule 23(a)(3). (Def.'s Mem. at 3.)

  Rule 23(a)(3) requires that "the claims or defenses of the representative parties be typical of the claims or defenses of the class," Fed.R.Civ.P. 23(a)(3). "A plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and his or her claims are based on the same legal theory, regardless of factual differences that underlie individual claims." Beasley v. Blatt, No. 93 C 4978, 1994 WL 362185, at *3 (N.D. Ill. 1994) (citations omitted); Keele v. Wexler, No. 95 C 3483, 1996 WL 124452, at *3 (N.D. Ill. 1996). The presence of defenses "peculiar to the named plaintiff class or a small subset of the plaintiff class may destroy the required typicality of the class as well as bring into question the adequacy of the named plaintiffs' representative." Beasley, 1996 WL 124452, at *3 (quoting J.H. Cohn & Co. v. American Appraisal Associates. Co., 628 F.2d 994, 998 (7th Cir. 1980)). Thus, "[w]here `a major focus of the litigation will be on an arguable defense unique to the named plaintiff . . . then the named plaintiff is not a proper class representative.'" Honorable v. The Easy Life Real Estate Sys., Page 6 182 F.R.D. 553, 560 (N.D. Ill. 1998)(quoting Koos v. First Nat'l Bank of Peoria, 496 F.2d 1162, 1164 (7th Cir. 1974)). In other words, "[t]ypicality will only be destroyed where the defenses against the named representatives are `likely to usurp a significant portion of the litigant's time and energy,' and there is a danger that the absent class members will suffer if their representative is preoccupied with defenses unique to it.'" Beasley, 1994 WL 362185, at *3 (quoting McNichols v. Loeb Rhoades & Co., 91 F.R.D, 331, 334-35 (N.D. Ill. 1982)).

  Defendant initially asserts that it is not the content of the letters that violate the FDCPA; rather, it is the timing of the letters sent to Plaintiff which allegedly violates the FDCPA. (Def.'s Mem. at 4.) Specifically, Defendant asserts that Plaintiff maintains that he received one letter (Letter 2) within the thirty-day validation period and another letter (Letter 3) was sent within the validation period which confused him into believing he no longer had thirty days to validate the debt (Id.) Thus, in both instances, ...


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