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Rosales v. Unifund CCR Partners

November 19, 2008

ARMANDO C. ROSALES III, PLAINTIFF,
v.
UNIFUND CCR PARTNERS, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

This matter is before the court on Plaintiff Armando C. Rosales III's ("Rosales") motion for class certification. For the reasons stated below, we deny the motion for class certification.

BACKGROUND

Rosales alleges that Defendant Unifund CCR Partners ("Unifund") is engaged in the business of collecting "charged-off debts" owed by consumers. (A. Compl. Par. 8). Defendant Credit Card Receivables Fund, Inc. and Defendant ZB Limited Partnership are allegedly general partners of Unifund and are thus liable for Unifund's conduct. (A. Compl. Par. 17-18). Unifund allegedly pays only a minimal amount to purchase "charged-off debts" and does not "acquire documentation for each of the accounts, including in particular account agreements signed by the putative debtors." (A. Comp. Par. 14). Rosales claims that in April 2008, Unifund brought an action against Rosales in Illinois state court ("State Action") "for the purpose of collecting three purported credit card debts incurred for personal, family or household purposes." (A. Comp. Par. 21). Unifund allegedly presented certain affidavits in the State Action, but the alleged declarants lacked the personal knowledge to support the affidavits. Rosales brought the instant action and includes in the complaint claims alleging that Unifund used false, deceptive, or misleading representations or means in connection with the collection of a debt in violation of 15 U.S.C. § 1692e of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1601 et seq. (Counts I and II). Rosales now requests that the court certify a class in this action.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 23(a) ("Rule 23(a)"), "[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members only 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). A court may certify a class if the requirements of Rule 23(a) are met and one of the requirements of Federal Rule of Civil Procedure 23(b) ("Rule 23(b)") are met. Fed. R. Civ. P. 23(b); see also Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006)(stating that a "district court may certify a class of plaintiffs if the putative class satisfies all four requirements of Federal Rule of Civil Procedure 23(a)-numerosity, commonality, typicality, and adequacy of representation-and any one of the conditions of Rule 23(b)"); Payton v. County of Kane, 308 F.3d 673, 677 (7th Cir. 2002)(stating that "a determination of the propriety of class certification should not turn on likelihood of success on the merits").

DISCUSSION

Rosales argues that all of the requirements for Rule 23(a) are met in this case. (Mem. Cert. 8). Rosales also contends that the requirement in Rule 23(b)(3) is met. (Mem. Cert. 8). Rosales seeks certification of a class that includes the following individuals: "(a) all individuals (b) against whom legal proceedings were filed in Illinois by or on behalf of Unifund, (c) in which was filed (d) on or after June 19, 2007 (one year prior to the filing of this action), and on or before July 9, 2008 (20 days after the filing of this action) (e) an affidavit executed by Kim Kenney." (A. Compl. Par. 40).

I. Rule 23(a) Requirements

Rosales argues that all of the requirements for Rule 23(a) are met in the instant action.

A. Numerosity, Typicality, and Adequacy of Representation

Defendants have not contested in this case that the numerosity, typicality, and adequacy of representation requirements of Rule 23(a) are met. (Ans. 1-14). Rosales indicates that Defendants have filed at least 980 complaints in the Circuit Court of Cook County since January 1, 2008, and the defendants in those cases would be potential class members. (Mem. Cert. 8). We conclude that the numerosity requirement is met. See Pruitt v. City of Chicago, Illinois, 472 F.3d 925, 926 (7th Cir. 2006)(stating that "[s]ometimes 'even' 40 plaintiffs would be unmanageable"). In regard to the typicality requirement, Rosales has shown that all of the putative class members were allegedly subjected to the same alleged unlawful policy of Defendants and would be pursuing the same legal claims. We conclude that Rosales has shown that the typicality requirement is met. See Keele v. Wexler, 149 F.3d 589, 595 (7th Cir. 1998)(stating that 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'")(quoting De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)). Rosales has also shown that his counsel is qualified to be a class representative and that counsel does not have any conflicts with the putative class members. Thus, we conclude that the numerosity, typicality, and adequacy of representation requirements of Rule 23(a) are satisfied in this case.

B. Commonality

Rosales contends that the commonality requirement is met in the instant action. To meet the commonality requirement, a plaintiff must establish that there is at least "'[a] common nucleus of operative fact'" among the putative class members. Keele, 149 F.3d at 595 (quoting Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)). Defendants argue that there are no common facts among putative class members because each claim is based upon an independent factual inquiry. The premise of Rosales' claims in this case is that Defendants brought actions against debtors to collect credit card debts and Defendants attached to the complaints in such cases several versions of form affidavits signed by Kim ...


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