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Geralyn Jablonski, On Behalf of Herself and the Proposed Class, Et v. Riverwalk Holdings

June 14, 2012

GERALYN JABLONSKI, ON BEHALF OF HERSELF AND THE PROPOSED CLASS, ET AL., PLAINTIFFS,
v.
RIVERWALK HOLDINGS, LTD., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Blanche M. Manning

MEMORANDUM AND ORDER

Plaintiff Geralyn Jablonski has sued defendant Riverwalk Holdings, Ltd., and two of its law firms, Riexinger & Associates, LLC, and Baker & Miller, P.C., for attempting to collect a debt even though Riverwalk was not a licensed debt collector. She seeks to represent a class of persons she contends were similarly harmed.

Before the court are a motion for class certification, a motion for preliminary approval of a class action settlement with Baker & Miller, and a request for a default judgment against Riverwalk. For the reasons that follow, the motions are denied, as is the request for a default judgment.

BACKGROUND

When determining the appropriateness of class certification, the court does not accept as true the allegations of the complaint and must, instead, "probe behind the pleadings." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011). Therefore, the following background section is based upon not only the allegations of the complaint but also the additional materials submitted by the parties during briefing of the pending motions. The facts are agreed except where noted.

The debt underlying the allegations of the complaint consists of charges Geralyn Jablonski made to her personal credit card issued by U.S. Bank. The charges consist of two cash advances-one on January 16, 2008, for $3,000, and the second on January 25, 2008, for $600-plus a $240.50 round-trip airline ticket purchased on April 13, 2008, for a trip between Las Vegas and Chicago. The events leading up to these charges began in 2006, when Jablonski relocated from the Chicago area to Las Vegas to start her own business, Ace Painting. By August 2008 the business had failed and had been dissolved.

As a result of the business' failure, Jablonski decided to return to the Chicago area. However, the parties differ over when her return occurred. Jablonski testified in her deposition that she moved back to Chicago in January 2009, and that she took the cash advances to facilitate her move. In the response in opposition to the motion for class certification, defendant Riexinger contends that the move must have occurred in January 2008 because that is the date of the cash advances, and suggests that Jablonski's testimony that she moved in January 2009 must have been mistaken. Response [98-1] at 8 n.3. However, in her reply brief, Jablonski sticks with her contention that she "moved at the beginning of 2009." Reply [115-1] at 3. The move consisted of driving two vehicles and one trailer of her personal belongings and office equipment that belonged to Ace Painting back to Chicago.

In January 2010, Jablonski received a letter from Riexinger & Associates, LLC, advising her that it was attempting to collect a debt that originated with U.S. Bank and was now owned by Riexinger's client, Riverwalk Holdings, Ltd. The letter further advised her that if the debt could not be resolved amicably, Riexinger would evaluate whether to file suit. On December 8, 2010, Riverwalk filed suit against Jablonski in the Circuit Court of McHenry County, Illinois, though it used the law firm Baker & Miller, P.C. rather than Riexinger. The suit was dismissed without prejudice on January 3, 2011.

Jablonski alleges that at the time Riexinger wrote to her, and Baker & Miller initiated the suit against her, Riverwalk was not a licensed collection agency under Illinois law. Her claims consist of three counts. In Count I, she brings suit on behalf of the people of the state of Illinois under § 14a of the Illinois Collection Agency Act seeking to enjoin Riverwalk from continuing to collect debts without being a licensed collection agency. See 225 Ill. Comp. Stat. 425/14a. In Count II, she alleges a putative class claim against Riverwalk for engaging in conduct prohibited by the Illinois Collection Agency Act, such as filing or threatening to file lawsuits to collect a debt without the required license. In Count III, she alleges a putative class claim that all three defendants violated the federal Fair Debt Collection Practices Act through the use of false representations and threatening to take actions that could not legally be taken. See 15 U.S.C. § 1692, et seq.

Before the court are a motion for class certification, a motion for preliminary approval of a class action settlement, and a request for a default judgment. The court will address each in turn.

I. MOTION FOR CLASS CERTIFICATION [77-1]

To obtain class certification, Jablonski must demonstrate that the proposed class meets the requirements of Federal Rule of Civil Procedure 23. See Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010). Under Rule 23, one or more members of a class may sue on behalf of all members of the class 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 case may proceed as a class action if those four requirements are met, plus one of the three provisions of Rule 23(b). Siegel, 612 F.3d at 935. Jablonski contends that the proposed class satisfies the third provision of Rule 23(b), which reads as follows:

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in ...


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