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Foreman v. PRA III

March 5, 2007

IRVING W. FOREMAN, PLAINTIFF,
v.
PRA III, LLC AND PORTFOLIO RECOVERY ASSOCIATES, LLC, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

In this action, Plaintiff Irving W. Foreman asserts that the debt collection practices of Portfolio Recovery Associates, LLC ("PRA LLC") and PRA III, LLC ("PRA III") (collectively, "Defendants") are "false, deceptive, misleading, and unfair" in violation of the Fair Debt Collection Practices Act ("FDCPA"), specifically 15 U.S.C. §§ 1692e(2), (5) and (10) and 15 U.S.C. § 1692f. Plaintiff claims that Defendants engage in two particular debt collection practices that violate the FDCPA: (1) Defendants' alleged practice of filing collection actions in state court and attaching affidavits in which Defendants' employees purport to have knowledge of the alleged debtor's "account balance," when in fact Defendants have no documents establishing the particular debtor's indebtedness; and (2) Defendants' alleged policy and practice of bringing state court collection actions without the means to prove a particular debtor's indebtedness. Plaintiff now moves for class certification. (Pl. Mem. in Support of Class Cert. at 1.)*fn1 For the reasons explained here, Plaintiff's motion for class certification is denied.

BACKGROUND

1. The Fair Debt Collection Practices Act

A central purpose of the FDCPA is "to eliminate abusive debt collection practices by debt collectors." 15 U.S.C. § 1692e. In relevant part, § 1692e prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt[,]" and lists the following among examples of prohibited conduct: the false representation of "the character, amount, or legal status of any debt"; "[t]he threat to take any action that cannot legally be taken or that is not intended to be taken"; and "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." Id. §§ 1692e(2), (5) & (10). Similarly, § 1692f prohibits debt collectors from using "unfair or unconscionable means to collect or attempt to collect any debt." Unconscionable and unfair conduct includes collecting any amount (e.g., interest, fee, other charges) unless the amount is "expressly authorized by the agreement creating the debt or permitted by law." Id. § 1692f(1). Courts view FDCPA claims "through the eyes of an 'unsophisticated debtor.'" McMillan v. Collection Prof'ls Inc., 455 F.3d 754, 758 (7th Cir. 2006) (quoting Gammon v. GC Servs. Ltd. P'ship, 27 F.3d 1254, 1257 (7th Cir. 1994)).

2. Defendant PRA III's Collection Action Against Plaintiff in Cook County

PRA LLC is a subsidiary of Portfolio Recovery Associates, Inc., a company that is not a party to this action. (Compl. ¶ 7; Answer ¶ 7.)*fn2 Portfolio Recovery Associates purchases, collects, and manages portfolios of defaulted consumer receivables, which are individuals' unpaid obligations to creditors such as banks, credit unions, and retail merchants. (Compl. ¶ 8.) According to Plaintiff, PRA III and other entities obtain title to charged-off debts, and PRA LLC then manages and collects these charged-off debts.*fn3 (Id. ¶¶ 9, 10.) Among the methods used to collect the debts is the filing of lawsuits. (Pl. Mot. for Class Cert. at 2.)

At some point prior to October 7, 2003, PRA III obtained title to a debt that Plaintiff allegedly owed to Citibank in the amount of $5,575.22. (Compl. ¶ 18.) Plaintiff denies that he owed this debt. (Pl. Mot. for Class Cert. at 2.) PRA LLC managed the collection of this alleged debt, and, on October 7, 2003, PRA LLC sent Plaintiff a letter, on behalf of PRA III, demanding payment. (Compl. ¶ 18; Answer ¶ 18; 10/7/03 Letter, Ex. A to Compl.) On July 1, 2004, PRA III filed suit against Plaintiff in the Circuit Court of Cook County, Illinois, in a further attempt to collect the debt ("Cook County case"). (Compl. ¶ 19.) PRA III sued Plaintiff on an "account-stated" theory of damages. (Pl. Mot. for Class Cert. at 3.)*fn4 Attached to PRA III's complaint in the Cook County case was an affidavit executed by Elaine Lark, an employee of PRA III, stating that she "[had] knowledge of the account balance" and that the amount due was "taken/calculated from the original books and records" of PRA III. (Ex. C to Compl.)

PRA III filed an amended complaint against Plaintiff in the Cook County case on October 5, 2004 and attached an account statement that, in its address box, contains city, state, and zipcode information but lists Plaintiff's street address as "ATTNY ACCOUNT-CODE=AGE2"; Plaintiff claims not to have seen this statement until it was attached to PRA III's state court complaint as an exhibit, and there is no indication in the record that he received it on any earlier date. (Ex. D to Compl.) Plaintiff also claims that, at the time PRA III filed the collection action, Defendants had no information regarding whether Plaintiff's alleged agreement with Citibank was written or oral, which, in an Illinois contract action, varies the statute of limitations period. (Compl. ¶¶ 27-28.) In this action, Plaintiff notes that his alleged debt was charged-off no later than 2003, and, because Defendant PRA III did not sue Plaintiff until 2004, the suit was brought after both the five-year statute of limitations for oral contracts and the ten-year statute of limitations for written contracts had expired. (Pl. Reply in Support of Class Cert. at 11.) Plaintiff moved to dismiss the Cook County case because PRA III had not attached the credit card agreement or assignment agreement to the complaint. (Def. Opp'n to Class Cert. at 3.) The Circuit Court of Cook County granted Plaintiff's motion to dismiss PRA III's action. (Compl. ¶ 29.) According to Plaintiff, Defendant PRA III was allowed to file a second amended complaint in the Cook County case but did not do so. (Id.) Plaintiff then moved to dismiss the Cook County case, and, on May 16, 2005, the attorneys for PRA III in the Cook County case voluntarily dismissed the suit. (Id. ¶ 30.)

3. Defendants' Practice of Filing State Collection Actions

According to Plaintiff, Defendants routinely file lawsuits in Illinois courts to collect credit card debt. (Id. ¶ 31.) Defendants filed approximately 300 such collection actions that meet the temporal requirements that are part of the class definition Plaintiff proposes in this action, which includes those lawsuits that Defendants filed or prosecuted (or caused to be filed or prosecuted) that were "filed or pending on or after June 7, 2004 and June 27, 2005." (Pl. Mem. in Support of Class Cert. at 7.) Plaintiff alleges that Defendants engage in "deceptive acts and practices" and "unfair practice[s]," in violation of the FDCPA, when they file lawsuits under one or more of the following circumstances:

* when the debt was charged-off more than five years before the filing of a lawsuit and Defendants do not have the original or an image of the contract and also do not have any evidence that the debtor actually signed a contract, which is necessary to determine whether the contract was written or oral (e.g., credit cards issued over the telephone);

* when Defendants do not have the original or an image of the account agreement to attach the complaint as required by Illinois law or any means of proving its terms;

* when Defendants do not have the original or an image of any account statements or account histories, but allege that an "account stated" exists; or

* when Defendants attach affidavits to state court complaints in the form of Exhibit C to Plaintiff's complaint.

(Compl. ¶¶ 31, 33, 35.)

Plaintiff has compiled approximately eighty-five complaints that Defendants filed during the proposed class period that contain affidavits similar to the one executed by Elaine Lark that PRA (executed by III attached to its complaint filed against Plaintiff in Cook County. (Pl. Mem. in Support of Class Cert. at 7; Ex. B to Pl. Mem. in Support of Class Cert.) Plaintiff contends that these affidavits are false and misleading because "virtually in all cases the affiant cannot possibly know any given 'account balance'" given Defendants' "meager account records." (Pl. Mot. for Class Cert. at 3.) According to Defendants, when a pool of defaulted debts are purchased, the creditor/seller sends Defendants electronic data specifying the balance due, account numbers, debtor names, and locations. (Def. Opp'n to Class Cert. at 3, citing Declaration of Philip J. Freebus ¶ 3, Ex. A to Def. Opp'n to Class Cert.) Sometimes Defendants are sent copies of account documents (e.g., credit applications, agreements, account statements); and, at times, Defendants can obtain supporting documents from the seller, but debt purchase agreements often do not require the creditor/seller to give Defendants all of the account documents the creditor/seller has with respect to the debts Defendants have purchased. (Def. Opp'n to Class Cert. at 3, citing Freebus Decl. ¶ 4.)

Plaintiff also claims that, in a random sample of 10% of the approximately 300 state court actions filed during the proposed class period, eight of the files contained no documents whatsoever, and only one out of the thirty-one accounts contained both a signed contract and "an account statement containing a balance which the consumer had agreed tacitly or expressly was in fact due and owing"; in other words, twenty-two files lacked one or both of the aforementioned documents. (Pl. Mem. in Support of Class Cert. at 7; Ex. C to Pl. Mem. in Support of Class Cert.) According to Defendants, the sample files included "either a signed application, signed credit agreement, itemization report, or account statements for twenty-four of the thirty-one" accounts, and "included no documents for only seven of the thirty-one" accounts. (Def. Opp'n to Class Cert. ¶ 4.)*fn5

Plaintiff now moves to certify a class that Plaintiff defines as all persons in Illinois against whom either Defendants have filed or prosecuted (or caused to be filed or prosecuted) a lawsuit to collect a debt; the lawsuit must have been "filed or pending on or after June 7, 2004 and June 27, 2005"; and, one of more of the following must apply to the action:

* the debt at issue was charged-off over five years prior to filing of the lawsuit and Defendants did not have the original or an image for a contract signed by the purported debtor and had no evidence that the debtor actually signed a contract;

* Defendants did not have the original or an image of the account agreement to attach to the complaint as required, or any means of proving its terms;

* Defendants did not have an original or an image or any statement of account sent to the debtor in the ordinary course of business, or an account history, but alleged that an "account stated" exists; or

* Defendants attached an affidavit to the complaint in the form of Exhibit C to Plaintiff's complaint in this ...


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