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Simpson v. Safeguard Properties, LLC

United States District Court, N.D. Illinois, Eastern Division

September 17, 2014

LUCILLE SIMPSON, on behalf of Plaintiff
v.
SAFEGUARD PROPERTIES, LLC, Defendant. And a class, Plaintiff,

MEMORANDUM OPINION & ORDER

JOAN B. GOTTSCHALL, District Judge.

On April 2, 2013, Plaintiff Lucille Simpson brought a putative class-action suit against Safeguard Properties, LLC. Simpson alleges that Safeguard is a debt collector within the meaning of the Fair Debt Collection Practices Act (FDCPA) and that Safeguard violated the FDCPA by (1) failing to provide Simpson with notice required under the Act, (2) failing to disclose that Safeguard was attempting to collect a debt, and (3) failing to use its own name in its debt-collection business. Before the court is Simpson's renewed motion for class certification. For the reasons stated below, the court grants the motion.

I. FACTS

Simpson is a resident of Bolingbrook, Illinois, where she owns and resides in a home subject to a residential mortgage loan held by Midland Mortgage Company. Midland hired Safeguard to perform certain services related to its mortgages. Safeguard describes itself as a "privately held mortgage field services company" that "inspects and maintains defaulted and foreclosed properties for mortgage service companies, lenders, investors, and other financial institutions." (Compl. ¶ 7, ECF No. 1.) Among other services, Safeguard communicates with delinquent borrowers on behalf of mortgage companies, including Midland. Specifically, Safeguard performs "contact attempt inspections" as part of its "field agent" services. ( Id. ¶ 17.) These contact attempt inspections are requested by loan servicer's who need to reach borrowers. Safeguard's agents attempt to establish contact with a borrower up to three times when such an inspection is ordered. ( Id. ¶ 9(b).) Midland asserts that Simpson's loan has been in default since the beginning of 2012, which Simpson disputes.

Beginning in October 2012 and ending in February 2013, at the instruction of Midland, representatives of Safeguard left door hangers on Simpson's door on an approximately monthly basis. ( Id. ¶¶ 18-23.) These door hangers all contained the same text. The front side reads: "IMPORTANT INFORMATION ENCLOSED." The reverse side contains the phrases "please call, " "please be ready to give your account number, " and "we are expecting your call today." The reverse side also contains lines for the date, a name, and a telephone number. ( Id. ¶ 24.) On all of the door hangers left at Simpson's home, Safeguard's representatives wrote the telephone number issued to Midland, and "Customer Service" or "Mid." in the "name" field. ( Id. ¶ 28.) Simpson alleges that Safeguard's representatives did not identify themselves as representatives of Safeguard, and that she only learned of Safeguard when she complained about its activities to Midland.

In her single-count complaint, Simpson alleges that Safeguard violated 15 U.S.C. § 1692g by failing to provide the notices required by that section. Simpson further alleges that Safeguard violated 15 U.S.C. §§ 1692e(11) and (14) by using deceptive collection practices in connection with collection of a debt.

Simpson also asserts claims on behalf of a class pursuant to Fed.R.Civ.P. 23(a) and (b)(3). Simpson seeks to define the class as follows:[1] "(a) all natural persons with Illinois addresses (b) that Safeguard contacted at the secured property (c) with a standard door hanger (d) on behalf of Midland (e) on or after April 12, 2012 (one year prior to the filing of this action on April 12, 2013) and (f) on or before May 2, 2013 (20 days after filing this action), (g) where the address of the secured property and the address of the mortgagor were the same." (Pl.'s Reply at 1). Safeguard opposes certification of the class.

II. LEGAL STANDARD

A plaintiff seeking class certification must demonstrate that the proposed class meets all the requirements of Rule 23(a) of the Federal Rules of Civil Procedure and at least one of the requirements of Rule 23(b). Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir. 2000). A class may be certified 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). To maintain a class action for damages, the court must also find that "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3).

As the party seeking class certification, plaintiffs bear the burden of demonstrating that their proposed class satisfies Rule 23's requirements, "but they need not make that showing to a degree of absolute certainty." Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). Instead, they must establish that certification is proper based on a preponderance of the evidence. Id. When determining if plaintiffs have met this burden, the court "may not simply assume the truth of the matters as asserted by the plaintiff. If there are material factual disputes, the court must receive evidence... and resolve the disputes before deciding whether to certify the class.'" Id. (quoting Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)).

A court has broad discretion to determine whether the proposed class meets Rule 23 certification requirements. See Uhl v. Thoroughbred Tech. and Telecomms., Inc., 309 F.3d 978, 985 (7th Cir. 2002). Doubts about whether to grant certification are resolved in favor of certification. Rogers v. Baxter Int'l., Inc., No. 04 C 6476, 2006 WL 794734, at *2 (N.D. Ill. Mar. 22, 2006).

III. ANALYSIS

The parties dispute whether Simpson's proposed class meets the requirements of Rule 23(a) and Rule 23(b)(3). ...


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