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MENDEZ v. M.R.S. ASSOCIATES

August 3, 2004.

JESSICA B. MENDEZ, f/k/a Cox, individually and on behalf of all others similarly situated, Plaintiff,
v.
M.R.S. ASSOCIATES, a New Jersey corporation, Defendant.



The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Jessica Mendez received a form debt collection letter from Defendant M.R.S. Associates ("M.R.S") seeking to collect on unpaid credit card debt. Plaintiff alleges the letter violates the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692g, because it creates the false impression that a consumer may dispute the debt only if she believes the debt is not valid and has some explanation for that belief. Plaintiff seeks to represent a class of borrowers who received the same letter from Defendant. Defendant resists class certification, arguing that Rule 23's requirements of typicality, adequacy, and superiority are not satisfied. FED. R. CIV. P. 23. For the reasons explained here, the court concludes that the requirements for class certification are met and that class certification is therefore appropriate.

FACTS

  Defendant, M.R.S. Associates, sent a form debt collection letter to Plaintiff, Jessica Mendez, on October 1, 2002 seeking collection of $491.51 past due on Plaintiff's First Premier Bankcard. (Letter from M.R.S. to Cox of 10/01/02, Ex. A to Plaintiff's Motion and Memorandum in Support of Class Certification (hereinafter, "Pl.'s Mot.").) Under a heading entitled, "Important Consumer Information," the letter states that [u]nless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification.

 (Id.) The letter includes the provision that "[i] for some reason you believe the debt is not valid, please review your rights listed at the bottom of this letter and contact our office to explain the nature of the dispute." (Id.) The letter concludes with this question in bold print: "Which would you prefer — the positive benefits or negative consequences? The choice is yours!" Defendant mailed an initial debt collection letter in the same form to approximately 750-900 Illinois residents from whom it sought to collect similar debts. (Letter from Jennifer Wigington to David Phillips of 5/25/2002, Ex. A to Plaintiff's Reply in Support of Motion for Class Certification (hereinafter, "Pl.'s Re.").) Plaintiff alleges that this letter violates section 1692g(4) of the FDCPA, which requires that debt collectors advise consumers of their right to dispute a debt, regardless of whether they have some explanation for the debt's invalidity.

  Sometime before 2000, Plaintiff opened her First Premier Bankcard when she received an application in the mail, and subsequently exceeded her credit limit of $250. (Plaintiff Dep., at 13-14.) Plaintiff cannot recall exactly when she stopped using the Bankcard, but she claims she never used the card after 2001. (Id. at 13.) On October 1, 2002, Plaintiff received the form debt collection letter from Defendant. (Id. at 18-20.) Plaintiff testified that she did not fully understand her right to dispute the First Premier Bankcard debt; although she did have some understanding that she could dispute it, she thought she "needed to explain my dispute and I didn't feel that was anyone's business but my own." (Id. at 30, 35.) She also testified that she disputes the dollar amount M.R.S. claims she owes on the credit card, but conceded that she does not recall ever telling M.R.S. that she disputed the dollar amount. (Id.) Plaintiff did not write a letter disputing the debt within thirty days because she was "put off by the words `negative consequences,'" and was "afraid to even want to request to dispute — or [the letter] made me nervous and scared to send the dispute not knowing what would happen." (Id. at 37.)

  Shortly after she received the letter, Plaintiff was contacted by telephone by a representative from M.R.S. Plaintiff requested an opportunity to make payment arrangements, but the representatives denied the request. (Id. at 20.) During this telephone conversation, Plaintiff asked for some documentation of the dollar amount owed, but the representative responded that Plaintiff should have her bills and should know the amount owed. (Id. at. 30-31.) At her deposition, Defendant's counsel asked Plaintiff what she would do if she were offered a release from her debt to settle this claim. Plaintiff responded that she understood such a settlement would not cure Defendant's violation of the FDCPA as to other members of the proposed class. (Plaintiff Dep., at 16-17.) Plaintiff testified that she seeks to represent the "many other people that owe money and don't understand these letters who feel threatened by them." (Id. at 43.)

  DISCUSSION

  I. Violation of the Fair Debt Collection Practices Act

  Plaintiff contends that Defendant's form debt collection letter violates the FDCPA, 15 U.S.C. § 1692g, by including language that confuses consumers about their debt validation rights. The Act requires debt collectors who contact consumers regarding a debt to include in writing, "a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector." 15 U.S.C. § 1692g(4). Plaintiff concedes that Defendant's debt collection letter includes this notice, but argues that additional language in the letter renders such validation notice ineffective. Specifically, Plaintiff contends that the language, "If for some reason you believe this debt is not valid, please review your rights listed at the bottom of this letter and contact our office to explain the nature of the dispute," mistakenly leads consumers to believe that they are entitled to dispute the debt only if they believe the debt is not valid and they have some explanation as to why the debt is not valid. (Letter from M.R.S. to Cox of 10/01/02, Ex. A to Pl.'s Mot.; Pl. Mot.; at 1-2.)

  Plaintiff notes that under the FDCPA, a consumer is entitled to dispute the validity of a debt for a good reason, a bad reason, or no reason at all. See Whitten v. ARS National Services, Inc., No. 00 C 6080, 2002 WL 1050320, at *4 (N.D. Ill. May 23, 2002) (imposing a requirement that a consumer have a "valid" reason to dispute the date is inconsistent with FDCPA). Plaintiff argues that Defendant's letter confuses consumers as to their rights to dispute the validity of the alleged debt, and thus violates the FDCPA. See Chauncey v. JDR Recovery Corp., 118 F.3d 516, 518 (7th Cir. 1997) (holding that debt collectors cannot "overshadow or contradict [validation] information with other messages sent with the validation notice.") (internal citations omitted).

  II. Class Certification

  Plaintiff moves to certify a class consisting of: (1) all Illinois residents, (2) from whom Defendant attempted to collect a consumer debt, (3) from September 24, 2002 to the date Plaintiff filed her on September 24, 2003, (4) relating to a debt allegedly owed to First Premier Bankcard, via the same debt collection letter. (Pl.'s Mot., at 2.)

  Plaintiff bears the burden of showing that the requirements for class certification are met. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997). Class certification is appropriate when all of the elements of Rule 23(a) and one of the elements of Rule 23(b) have been satisfied. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). Under Rule 23(a), Plaintiff must demonstrate that the class is so large that joinder is impractical, that questions of law or fact are common to the class, that the class representative's claim is typical, and that she is able to fairly and adequately protect the interests of the class. FED. R. CIV. P. 23(a). Plaintiff here seeks certification under Rule 23(b)(3), which requires a showing that: (1) questions ...


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