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Nichols v. Northland Groups

March 31, 2006

MARY ANN NICHOLS INDIVIDUALLY, AND CHARLANE YOWAYS-DAWSON, ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
NORTHLAND GROUPS, INC., DEFENDANTS.
GLORIA D. GLOVER ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
NORTHLAND GROUP, INC., JUDGE REBECCA R. PALLMEYER DEFENDANT.
BERTHA K. GUY, FERNANDO HERNANDEZ, INDIVIDUALLY AND AS NEXT FRIEND OF KATHERINE HERNANDEZ, RUBY LUCAS, MARGARET SIMMONS, PERRIE K. BONNER, RUTH D. GRADY, AND MARY MITCHELL, PLAINTIFFS,
v.
NORTHLAND GROUP, INC., DEFENDANT.



The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge

MEMORANDUM OPINION AND ORDER

On or about March 21, 2005, Plaintiff Gloria D. Glover received a collection letter from Northland Group, Inc. ("Northland") which stated the amount of her debt ($7,171.37) and offered to "resolve" the debt for "$4,374.54 cleared funds." Northland's letter then went on to state that the "amount due" could vary as interest and other charges accrued, and included a phone number Ms. Glover could call "for the amount of her settlement." Is Northland offering to settle for a fixed amount of money or not? Plaintiff alleges that the offer is confusing and misleading in violation of the Fair Debt Collection Practices Act ("FDCPA" or "the Act"), and has moved judgment on the pleadings. Northland has filed a cross-motion for judgment on the pleadings, contending that its letter closely tracks "safe-harbor" language approved by the Seventh Circuit in Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, L.L.C., 214 F.3d 872 (7th Cir. 2000). Northland also asserts that any alleged violation of the FDCPA was the result of a "bona fide" error under FDCPA § 1692k(c). See 15 U.S.C. § 1692k(c) (2006).

In addition to the parties' cross-motions for judgment on the pleadings, Plaintiff moves to certify a class consisting of Illinois residents who received letters containing the same language during a three-month period in 2005.In opposition, Northland contends that Ms. Glover is not an adequate class representative, and that Plaintiff's prepared class definition in an attempt to avoid the FDCPA's class-action damages cap. See 15 U.S.C. § 1692k(a). For the reasons stated below, the court denies the parties' cross-motions for judgment on the pleadings and grants Plaintiff's motion to certify.

FACTUAL BACKGROUND

Ms. Glover is an Illinois resident who incurred, at some unspecified time, credit-card debt totaling several thousand dollars. See Glover Collection Letter, Ex. A to Compl.; Compl. ¶ 3. On or about March 21, 2005, Northland Group, Inc., a Minnesota corporation that does business in Illinois, sent Plaintiff a collection letter stating, in pertinent part, as follows:

Dear GLORIA D GLOVER,

ARROW FINANCIAL SERVICES the creditor of your account has assigned the above referencedaccount to Northland Group for collection. This is an attempt to collect a debt and any information obtained will be used for that purpose.

In view of the upcoming tax season, our client is offering a discount on the balance. Upon receipt of $4374.54 cleared funds, your account will be considered resolved and we will issue you a letter stating this account is resolved. As of the date of this letter, you owe $7171.37. Because of interest that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount shown above, an adjustment may be necessary. For further information, please contact 877-867-3787 for the amount of the settlement.

See Glover Collection Letter, Ex. A to Compl.; Compl. ¶ 7. When Ms. Glover received this letter, she forwarded it (unread) to her "debt counselor," a lawyer affiliated with Debt Counsel for Seniors and Disabled, an organization with whom she was working to manage her debt. See Glover Dep., Ex. B to Response in Opp'n to Plaintiff's Motion for Class Certification, at 21--22, 35. Ms. Glover would later testify that her debt counselor told her that the letter was confusing,*fn1 and that her debt counselor, in turn, hired Edelman, Combs, Latturner & Goodwin ("Edelman"), the law firm representing Plaintiff in this litigation. Id. at 22, 36. Edelman filed this lawsuit on Plaintiff's behalf on May 5, 2005. In addition to individual relief, Plaintiff seeks relief on behalf of a proposed class consisting of "(a) all individuals in Illinois (b) to whom defendant sent a letter in the form represented by [Ms. Glover's letter] (c) offering a settlement of a debt owned by Arrow (d) which letter was sent on or after Feb. 15, 2005 (the service date of the most recent complaint alleging the same violation) and (e) less than 20 days after the filing of this action." Glover Compl. ¶ 14.

As suggested in her proposed class definition, Ms. Glover's lawsuit was not the first such lawsuit against Northland for the same alleged violation. On June 7, 2004, Northland was sued in the Southern District of Indiana by a plaintiff alleging that a letter, substantially the same as the one sent to Ms. Glover, violated the FDCPA. See Thurman v. Northland Group, Inc., No. 04-CV-981 (S.D.Ill.).*fn2 And on February 14, 2005, Mary A. Nichols sued Northland in this District after receiving a letter containing similar language. See Nichols v. Northland Group, Inc. ("Nichols I"), No. 05-CV-906 (N.D.Ill.) (collection letter dated Nov. 1, 2004). Nichols I was dismissed without prejudice pursuant to settlement on March 29, 2005, and the dismissal became final on May 9, 2005 after Ms. Nichols failed to reinstate the lawsuit within 30 days. See May 9, 2005, Minute Order (Pallmeyer, J.).

A fourth lawsuit alleging the same violation was filed against Northland on September 23, 2005, and, like Glover, that lawsuit was brought on behalf of individuals who also received Northland's letter. See Nichols v. Northland Group, Inc. ("Nichols II"), No. 05-CV-5523 (N.D.Ill.) (four collection letters from the May--October 2005 time frame).*fn3 The proposed class in Nichols II consists of "(a) all individuals in Illinois or Indiana (b) to whom defendant sent a letter in the form represented by [letters containing the same alleged violation as Ms. Glover's] (c) offering to settle a debt owned by Capital One (d) which letter was sent on or after May 6, 2005 (the date of service in Glover v. Northland Group, Inc., 05 C 2701 (N.D.Ill.), which alleges the same violation) to approximately December 22, 2005." See Nichols II Compl. ¶ 18. On January 3, 2006, Northland was sued for a fifth time, again for the same alleged FDCPA violation. See Guy v. Northland Group, Inc., No. 06-C-43 (N.D.Ill.) (11 letters from the January--October 2005 time frame). This suit was brought by eight individuals, but does not contain any class allegations.See Guy Compl. ¶¶ 3--10.*fn4

DISCUSSION

A. The Parties' Cross-Motions for Judgment on the Pleadings

1. Standard of Review

The parties' cross-motions for judgment on the pleadings are governed by the same standard as applies to a motion to dismiss under Rule 12(b)(6).See United States v. Wood, 925 F.2d 1580, 1581 (7th Cir. 1991). Under that standard, this court grants such a motion only if, viewing the facts in the light most favorable to the non-moving party, "it is beyond doubt that the non-movant can plead no facts that would support his claim for relief." Id.The court reviews the pleadings only, but "may take into consideration documents incorporated by reference to the pleadings." Id. at 1582. The court may also take judicial notice of matters of public record. Id.

2. Plaintiff's FDCPA Claim

Plaintiff contends that Northland's collection letter violates FDCPA section 1692e, which prohibits any "deceptive or misleading representation or means in connection with the collection of any debt." See 15 U.S.C. § 1692e (2006). According to Plaintiff, Northland's letter misleadingly states that the debtor may "resolve" her debt for a fixed amount of money, only to later imply that the settlement amount is in fact increasing as interest accrues. In assessing whether a collection letter is deceptive or misleading under section 1692e, the court considers the letter from the perspective of an "unsophisticated consumer." See Durkin v. Equifax Check Serv., Inc., 406 F.3d 410, 414 (7th Cir. 2005). This hypothetical unsophisticated consumer "possesses rudimentary knowledge about the financial world and is capable of making basic logical deductions and inferences," id. (citation and quotations omitted), and is presumed to read "collection letters carefully so as to be sure of their content." Petitt v. Retrieval Masters ...


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