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McCarter v. Nesbit

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

January 5, 2015

JANICE McCARTER, on behalf of herself and all others similarly situated, Plaintiff,
v.
KOVITZ SHIFRIN NESBIT, an Illinois professional corporation, Defendant.

MEMORANDUM OPINION

AMY ST. EVE, District Judge.

Before the court are the plaintiff's: (1) motion for partial class certification; (2) motion to strike; (3) motions for findings of relatedness; and (4) motion to withdraw her motion to add an additional plaintiff. For the following reasons, the court: (1) grants the plaintiff's motion for partial certification; (2) denies her motion to strike; (3) grants her motions for findings of relatedness; and (4) grants her motion to withdraw her motion to add an additional plaintiff.

BACKGROUND

This is a putative class action suit against a law firm, Kovitz Shifrin Nesbit ("Kovitz"), for allegedly violating the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. § 1692 et seq. The plaintiff, Janice McCarter, alleges that Kovitz sent her two debt-collection letters demanding past-due condominium assessments owed to the Malibu East Condominium Association (the "Condo Association"). In Count I, McCarter alleges that the payment demand in the first paragraph below "overshadows" the FDCPA-required validation notice in the second paragraph:

THIS IS YOUR NOTICE THAT PAYMENT IN FULL OF THE AMOUNT STATED ABOVE IS DEMANDED OF YOU, AND THAT UNLESS YOUR PAYMENT OF THE FULL AMOUNT IS MADE IN CERTIFIED FUNDS (CASHIER'S CHECK OR MONEY ORDER) ON OR BEFORE THE EXPIRATION OF THIRTY (30) DAYS AFTER THE DATE OF MAILING OF THIS NOTICE, THE ASSOCIATION MAY COMMENCE AN ACTION AGAINST YOU UNDER ARTICLE IX OF THE ILLINOIS CODE OF CIVIL PROCEDURE GOVERNING FORCIBLE ENTRY AND DETAINER SEEKING AN ORDER OF POSSESSION OF THE PREMISES AND WHICH MAY RESULT IN A MONETARY JUDGMENT BEING ENTERED AGAINST YOU.... ONLY FULL PAYMENT OF ALL AMOUNTS DEMANDED IN THIS NOTICE WILL INVALIDATE THE DEMAND, UNLESS THE PERSON CLAIMING POSSESSION, OR HIS OR HER AGENT OR ATTORNEY, AGREES IN WRITING TO WITHDRAW THE DEMAND IN EXCHANGE FOR RECEIVING PARTIAL PAYMENT.
FEDERAL LAW GIVES YOU THIRTY DAYS AFTER YOU RECEIVE THIS LETTER TO DISPUTE THE VALIDITY OF THE DEBT OR ANY PART OF IT. IF YOU DON'T DISPUTE IT WITHIN THAT PERIOD, I'LL ASSUME THAT IT'S VALID. IF YOU DO DISPUTE IT BY NOTIFYING ME IN WRITING TO THAT EFFECT I WILL, AS REQUIRED BY LAW, OBTAIN AND MAIL TO YOU PROOF OF THE DEBT. AND IF, WITHIN THE SAME PERIOD, YOU REQUEST IN WRITING THE NAME AND ADDRESS OF YOUR ORIGINAL CREDITOR, IF THE ORIGINAL CREDITOR IS DIFFERENT FROM THE CURRENT CREDITOR, I WILL FURNISH YOU WITH THAT INFORMATION TOO. IF YOU REQUEST PROOF OF THE DEBT OR THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN THE THIRTY-DAY PERIOD THAT BEGINS WITH YOUR RECEIPT OF THIS DEMAND, THE LAW REQUIRES ME TO SUSPEND MY EFFORTS (THROUGH LITIGATION OR OTHERWISE) TO COLLECT THE DEBT UNTIL I MAIL THE REQUESTED INFORMATION TO YOU. THIS IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.

("30 Day Notice and Demand, " dated Dec. 3, 2012, attached as Ex. A to Am. Compl. (capitalization in original; underlining added).) The court has held that McCarter's allegations with respect to the December 3, 2012 letter state a claim against Kovitz under 15 U.S.C. § 1692g. See McCarter v. Kovitz Shifrin Nesbit, 6 F.Supp.3d 797, 802 (N.D. Ill. 2013) ("[P]ayment is demanded on or before the expiration of thirty (30) days after the date of mailing ' of the notice (emphasis added), when the thirty-day federal validation period runs from receipt of the notice, and there is no explanation of how those periods of time fit together."); see also 15 U.S.C. § 1692g(b) (Collection activities and communications during the thirty-day period "may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor."). McCarter also alleges that she received a second letter from Kovitz, dated January 17, 2013, which improperly failed to "state, identify, or itemize all the charges adding up to the amount demanded in [the letter]." (See Am. Compl. ¶ 41.) The amended complaint alleges two separate classes, defined in relevant part below:

Class A:
All persons [who], within twelve months prior to the date of filing of this action, resided in Illinois and received (1) a form collection letter similar to Plaintiff's collection letter dated December 3, 2012 and (2) those persons whose collection letters were sent but were not returned by the postal service as undelivered or undeliverable....
Class B:
All persons [who], within twelve months prior to the date of filing of this action, resided in Illinois and received (1) a form collection letter similar to Plaintiff's collection letter dated January 17, 2013 demanding payment without identifying the itemized charges and (2) those persons whose collection letters were sent but were not returned by the postal service as undelivered or undeliverable....

(Id. at ¶ 13.) McCarter's motion for "partial" certification asks the court to certify Class A, only. (See Mot. for Partial Class Cert. as to Count I, dated Mar. 14, 2014, Dkt. 61.)

Kovitz argues that the court should deny class certification because McCarter and her attorneys will not adequately represent the class's interests. Among other things, Kovitz contends that one of McCarter's attorneys, Mark Lavery, is affiliated with a law firm that the Illinois Attorney General charged with misconduct. McCarter has moved to strike this argument as "scandalous." (See Mot. to Strike Scandalous Matter, dated Apr. 24, 2014, Dkt. 75.) After the parties fully briefed the class-certification motion and the motion to strike, McCarter filed: (1) a motion to add Krystyna Scehura as an additional class representative, (see Mot. to Add Pl. and Proposed Class Rep., dated Sept. 30, 2014, Dkt. 84); and (2) a motion for a finding that Lill v. Kovitz Shifrin Nesbit, 14-cv-2647 (N.D. Ill.) (Wood, J.) is related to this case and should be reassigned to this court, (see Mot. to Relate Cases, dated Sept. 30, 2014, Dkt. 86)). Shortly after filing these motions, McCarter's attorneys filed a separate lawsuit on Scehura's behalf. See Scehura v. Kovitz Shifrin Nesbit, P.C., Case No. 14-cv-8838 (N.D. Ill.) (Dow, J.). McCarter has moved to withdraw her motion to add Scehura as a plaintiff, and instead seeks a finding that Scehura - like Lill - is related to this case and should be reassigned. (See Combined Mot. to Withdraw and to Relate the Scheura Action to this Case, dated Nov. 5, 2014, Dkt. 93.)[1]

DISCUSSION

I. McCarter's Motion for Class Certification

McCarter has the burden to establish that the putative class action satisfies the following elements:

(1) the class is so numerous that joinder of all members ...

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