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Tabiti v. LVNV Funding, LLC

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

January 17, 2017

ABAYOMI TABITI, on behalf of plaintiff and a class, Plaintiff,


          Joan B. Gottschall United States District Judge

         Plaintiff Abayomi Tabiti moves the court pursuant to Federal Rule of Civil Procedure 23 to enter an order finding that this Fair Debt Collection Practices Act (“FDCPA”) action may proceed as a class action against Defendants LVNV Funding, LLC (“LVNV”); Resurgent Capital Services, L.P. “(Resurgent”); and Alegis Group, LLC (“Alegis”) (collectively, “Defendants”) [107]. For the reasons set forth below, the court finds that the proposed class meets the requirements of Rule 23(a) and (b)(3) and grants Plaintiff's motion.

         I. BACKGROUND

         The following allegations are drawn from Plaintiff's First Amended Complaint (“FAC”) [79] and Plaintiff's memorandum in support of his renewed motion for class certification [120]: Plaintiff is an individual who had one or more accounts with Chase Bank USA, N.A (“Chase”). (FAC, Dkt. 79, ¶¶ 6, 30) LVNV is a debt-collector who purchases consumer debt from Chase and other financial institutions and then attempts to collect on these debts by means of collections lawsuits filed in Illinois courts. (Id., ¶¶ 9, 11-12, 14) Resurgent operates a collection agency and collects debts on behalf of LVNV. (Id., ¶17) All actions taken in the name of LVNV actually were taken by Resurgent pursuant to a written agreement and power of attorney. (Id., ¶ 21) Alegis is the general partner of Resurgent. (Id., ¶ 26) Plaintiff was named in a lawsuit filed by LVNV, but the suit was dismissed after he retained a lawyer on March 13, 2013. (Id., ¶¶ 31, 39) Attached to LVNV's suit against Plaintiff was an affidavit (the “Affidavit”) stating that Defendants are in possession of business records indicating that Defendants have been assigned “the right to collect the purchased balance owing of $10, 463.51 plus any additional accrued interest.” (Mem. in Supp. Class Cert. (“Pl.'s Mem.”), Dkt. 120, Appendix B) In Plaintiff's case, the alleged unpaid balance was $10, 463.51, but when Defendants filed suit, they also sought almost $2, 092.70 in interest, “plus continuing interest on the outstanding principal balance at a rate of 0.5% per annum.” (Id., Appendix A) Plaintiff claims that the Affidavit violates the FDCPA, 15 U.S.C. § 1692 et seq.-which prohibits unfair or unconscionable collection methods, including false, deceptive, or misleading statements-because Chase's assignment of Plaintiff's debt to Defendants pursuant to a Credit Card Account Purchase Agreement specifically excluded all post charge-off interest from the assignment. (Dkt. 120, Appendix E)

         Plaintiff seeks class certification on behalf of: (a) all natural persons with Illinois addresses; (b) to whom Defendants provided an affidavit in the form represented by Appendix B [the Affidavit]; (c) concerning an alleged debt purportedly obtained from Chase; (d) where the definition of “Unpaid balance” in the Chase [Credit Card Account Purchase Agreement] includes the statement “excluding post charge-off interest;” (e) where such affidavit was provided on or before October 8, 2012 (one year prior to the filing of this action); and (f) on or before October 28, 2013 (20 days after the filing of this action.” (Pl.'s Reply, Dkt. 129 at 6) In support of certification, Plaintiff directs the court's attention to a stipulation the parties entered into on May 13, 2016 (the “Stipulation”), which states as follows:

Defendants agree that there are 123 individuals whose debts were acquired by Defendants from Chase under identical terms and conditions as those terms and conditions in the Purchase and Sale Agreement that Defendants have produced as that which is related to Tabiti's account. Defendants also agree that in opposing class certification, Defendants will not argue that there are individual factual issues among the remainder of the putative class related to the Purchase and Sales Agreements associated with the 123 class members and that which was produced as related to the Tabiti account.

See Stipulation, Dkt. 101.

         In opposing class certification, Defendants present two arguments against certification, both of which are based on Plaintiff's failure to demonstrate that he is an adequate class representative. First, Defendants claim that Plaintiff does not possess the same interests and did not suffer the same injury as potential members because his debt was incurred for business purposes, while the FDCPA addresses only non-business debt. Second, Defendants maintain that Plaintiff's claims are time-barred because they were not brought within the one-year statute of limitations applicable under the FDCPA to the alleged violation.


         Federal Rule of Civil Procedure 23 allows class certification when the proposed class satisfies all of the requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). Wal-Mart, Inc. v. Dukes, ---U.S. __, 131 S.Ct. 2541, 2548, 180 L.Ed.2d 374 (2011). The court need not accept the allegations in the complaint as true. Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 675 (7th Cir. 2001). Under Wal-Mart, the party seeking class certification must demonstrate with proof, at the class-certification stage, that the requirements of Rule 23 are satisfied. The court must engage in a “rigorous analysis” touching on the merits of the underlying claim. Id. at 2551-52.

         Rule 23(a) lists the following prerequisites for class certification: “(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); Wal-Mart, 131 S.Ct. at 2548. These four requirements “effectively limit the class claims to those fairly encompassed by the named plaintiff's claims.” Wal-Mart, 131 S.Ct. at 2550 (internal quotation marks omitted).

         Plaintiff requests certification pursuant to Rule 23(b)(3), which applies when “the questions of law or fact common to class members predominate over any questions affecting only individual members, and [when] a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).

         A. ...

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