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Murray v. Indymac Bank

August 7, 2006

THOMAS A. MURRAY, PLAINTIFF,
v.
INDYMAC BANK, F.S.B., DEFENDANT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Plaintiff Thomas A. Murray's ("Murray") motion for class certification. For the reasons stated below, we grant the motion for class certification.

BACKGROUND

Murray claims that Defendant IndyMac Bank, F.S.B. ("IndyMac") unlawfully accessed the credit reports of approximately 18,000 Illinois consumers for the purpose of sending them letters offering a mortgage loan. Murray alleges that he received such a letter in October, 2004, which stated: "[I]nformation from a consumer report was used in conjunction with this offer." (A. Compl. Par. 8). The letter further allegedly stated: "This offer has been extended based upon information from the consumer credit report which indicates that you meet certain credit criteria for the offered credit." (A Compl. Par. 8). According to Murray, the letter sent to him and the putative class members does not constitute a firm offer of credit, which is necessary to justify accessing his credit report, and does not make certain required disclosures in a clear and conspicuous manner as is required under the Fair Credit and Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. Furthermore, Murray contends that IndyMac's actions were done willfully in violation of 15 U.S.C. §1681b of the FCRA. Murray now seeks class certification pursuant to Federal Rule of Civil Procedure 23.

LEGAL STANDARD

Federal Rule of Civil Procedure 23(a) ("Rule 23(a)") provides that a class may be certified if: "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). The four elements of Rule 23(a) are requirements for class certification. See Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993)(stating that a failure to meet any one of the Rule 23(a) requirements precludes certification as a class). A proposed class action must also satisfy at least one of the alternative routes provided in Federal Rule of Civil Procedure 23(b) ("Rule 23(b)"). Fed. R. Civ. P. 23(b); Rosario v. Livadatis, 963 F.2 1013, 1017 (7th Cir. 1992). A plaintiff seeking class certification has the burden of proving that the proposed class meets the requirements of Rule 23. See Retired Chicago Police Ass'n, 7 F.3d at 596 (holding that the "party seeking class certification assumes the burden of demonstrating that certification is appropriate").

DISCUSSION

Murray seeks to certify a class of 18,000 Illinois residents, which would be made up of the people in Illinois who allegedly received the same letter that was mailed to Murray on or around the same date that it was mailed to Murray. (Mem.7).

I. Rule 23(a) Requirements

Murray argues that the proposed class meets all of the requirements of Rule 23(a). IndyMac concedes that Murray meets all of the requirements of Rule 23(a), except for the adequacy of representation requirement.

A. Numerosity Requirement

Given that the potential number of claimants is approximately 18,000, we agree that the individual joinder of all proposed class members would be impractical. IndyMac has also conceded that the numerosity requirement is satisfied. Therefore, we find that the proposed class meets the numerosity requirement.

B. Commonality Requirement

To meet the commonality requirement, a plaintiff must show that the proposed class members' claims involve a "common nucleus of operative fact," which generally exists in FCRA cases when "the defendants have engaged in standardized conduct towards members of the proposed class by mailing to them allegedly illegal form letters or documents." Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). In the instant action, we have identical common facts before us since all of the proposed class members are contending that IndyMac mailed the same improper form letter to them and improperly accessed their ...


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