Class Action Defense Cases–Tasaranta v. Homecomings Financial: California Federal Court Dismisses Class Action Complaint Holding Allegations Insufficient To Support TILA, RESPA, HOEPA Or FDCPA Claims

Class Action Arising out of Home Loan Transaction and Alleging Violations of Various State and Federal Laws Dismissed, without Opposition from Plaintiffs, because Class Action Complaint Failed to Satisfy Pleading Requirements California Federal Court Holds

Plaintiffs filed a putative class action in California state court against Homecomings Financial and American Mortgage Network (which apparently was never served) arising out of a home loan they obtained that was secured by real property in Chula Vista, California. Tasaranta v. Homecomings Financial LLC, ___ F.Supp.2d___ (S.D. Cal. September 9, 2009) [Slip Opn., at 1-2.] Specifically, the class action complaint alleged that defendants violated the federal Truth in Lending Act (TILA) and Real Estate Settlement Procedures Act (RESPA), Home Ownership and Equity Protection Act (HOEPA) and Fair Debt Collection Practices Act (FDCPA), as well various California-state laws. _Id._, at 2. The class action prayed for compensatory and punitive damages, and sought “rescission of the contract and loan.” _Id._ Defense attorneys for Homecomings Financial removed the class action to federal court on the basis of federal question jurisdiction, _id._, at 1., and then filed a motion to dismiss the class action which plaintiffs did not oppose, _id._, at 1-2. _Id._ The district court granted the motion and dismissed the class action complaint without prejudice.

Even though the motion to dismiss the class action was unopposed, the district court reviewed each claim for relief on the merits. With respect to the class action’s TILA claim, the federal court found that the statute of limitations had run on the claim, Tasaranta, at 4-5, and that, separately, the complaint failed to adequately plead a “plausibly suggestive” claim “entitling the plaintiff to relief,” Tasaranta, at 4 (citation omitted). With respect to RESPA, the district court ruled that the class action failed to adequately plead the alleged transfer of the servicing contract in order to support a claim against “Servicers” under RESPA, id., at 5, and that the “yield spread premium” (YSP) claim under RESPA failed because YSPs are not per se illegal under RESPA, id., at 5-6. With respect to HOEPA, the class action complaint failed to allege sufficient details about the loan to support a claim that the interest rate fell within the scope of the statute. See id., at 6-7. And with respect to the FDCPA claim, the federal court observed that the class action did not “include sufficient factual allegations to support the conclusion that Defendants violated the FDCPA, such as how, when and to whom Plaintiffs ‘requested validation,’ and how and when each Defendant responded.” Id., at 7. Accordingly, the district court dismissed the class action complaint against Homecomings Financial without prejudice. Id., at 9.

Class Action Court Decisions FDCPA Class Actions RESPA/TILA Class Actions Uncategorized

FDCPA Class Action Defense Cases–Hicks v. Client Services: Florida Federal Court Denies Motion To Decertify Class Action Holding De Minimis Recovery Does Not Defeat Rule 23(b)’s Superiority Requirement

Class Action Alleging Violations of Fair Debt Collection Practices Act (FDCPA) Properly Certified as Class Action despite De Minimis Recovery for Class Members Florida Federal Court Holds

Plaintiff filed a class action against Client Services alleging violations of the federal Fair Debt Collection Practices Act (FDCPA); plaintiff moved to certify the litigation as a class action, and the district court agreed that class action treatment was warranted under Rule 23. Hicks v. Client Services, Inc., 257 F.R.D. 699, 700 (S.D.Fla. 2009). Defense attorneys moved to decertify the litigation as a class action, arguing that in light of the statutory cap on damages awardable under FDCPA class actions, the de minimis recovery awaiting class members defeated the “superiority” prong of class certification. Id. Specifically, the FDCPA caps damages in class actions to “the lesser of $500,000 or 1 per centum of the net worth of the debt collector.” 15 U.S.C. § 1692k(a)(2)(B). Defendant asserted that its net worth was only $15 million, and that the putative class contained more than 122,000 members: “Thus, should Plaintiff class prevail, the maximum recovery per class member would be $1.24.” Id. (footnote omitted). Plaintiff countered that “courts have not allowed the prospect of de minimis individual recovery to defeat certification of FDCPA classes.” Id. The district court denied the motion, determining that class action treatment was warranted.

The district court explained that, in analyzing the superiority requirement of Rule 23(b)(3), courts have recognized that [c]lass actions are particularly superior for cases where individual recovery would be small, because class actions ‘overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.’” Hicks, at 700 (quoting Amchem Prods. v. Windsor, 521 U.S. 591, 617 (1997)). “A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.” Amchem, at 617. The court considered the cases cited by defendants for the proposition that a de minimis recovery may defeat class certification, see id., at 700-01. The court discussed also the cases cited by plaintiffs hold that de minims recovery does not defeat class certification of FDCPA claims. Id., at 701. The federal court observed, then, that “[t]here is authority supporting both Plaintiff’s and Defendant’s positions.” Id. It concluded, however, that the cases supporting plaintiff’s view were the more persuasive, id. The district court explained at page 701,

Certification of Class Actions Class Action Court Decisions FDCPA Class Actions Uncategorized

FDCPA Class Action Defense Cases–Lemire v. Wolpoff & Abramson: Connecticut Federal Court Grants Class Action Treatment To FDCPA Class Action Against Law Firm

Class Action Against Law Firm Alleging Violations of Debt Collection Laws Warranted Class Action Treatment over Defense Challenge to Adequacy of Representation based on Claim that Class Action was Filed by “Professional Plaintiff” and over Challenge to Superiority Prong of Rule 23(b)(3) Class Action Certification Test based on Negative Net Worth of Defendant and FDCPA’s 1% Net Worth Cap on Liability Connecticut Federal Court Holds

Plaintiff filed a class action against the law firm of Wolpoff & Abramson alleging violations of the federal Fair Debt Collection Practices Act (FDCPA). Lemire v. Wolpoff & Abramson, LLP, 256 F.R.D. 321, 2009 WL 827764, *1 (D.Conn. 2009). According to the allegations underlying the class action, Wolpoff’s communication with Connecticut consumers violated state law and therefore a per se violation of the FDCPA, id. Wolpoff argued that a violation of Connecticut debt collection law is not a per se violation of the FDCPA. Id. Plaintiff moved the district court to certify the litigation as a class action, id. The district court granted plaintiff’s motion and granted class action treatment.

After summarizing the well known rules for class action certification under Rule 23, see Lemire, at *2, the court turned to the merits of the motion. Wolpoff conceded that the numerosity test of Rule 23(a)(1) had been met, id., at *3. But as to commonality, Wolpoff argued that each collection letter sent to a Connecticut resident would have to be “analyzed individually to determine whether it contains actionable language” because different letters were sent to consumers who were represented by counsel than those who were unrepresented. Id. The federal court found, however, that the letters were similar in material respects and that the differences go to the merits of the class action claims. Id., at *3-*4. Given the “common content of Wolpoff’s letters” sent directly to consumers, the commonality test had been met. Id., at *4. And the letters to the attorneys were sufficiently similar to warrant class action treatment, and even if different could be addressed by dividing the group into two classes. Id., at *5. And the typicality test was satisfied because Wolpoff “failed to identify any unique ‘claims or defenses,’” id., at *6.

Class Action Court Decisions FDCPA Class Actions Uncategorized

FDCPA Class Action Defense Cases–Asset Acceptance v. Hanson: California State Court Affirms Dismissal Of FDCPA Class Action Claims Holding Debt Collector Not Obligated To Inform Debtors That Debts Were Time-Barred

As a Matter of First Impression, Credit Card Debtor’s Class Action Cross-Complaint Alleging Violations of California’s Fair Debt Collection Practices Act (Rosenthal Act) Properly Dismissed on Demurrer for Failure to Define an Ascertainable Class and because Debt Collector was not Obligated to Disclose to Debtors that Debts Sought to be Collected were Time-Barred California State Court Holds

Plaintiff Asset Acceptance filed a lawsuit against debtor Lilia Hanson to collect on a $1300 credit card debt; the debtor filed a putative class action cross-complaint against Asset alleging that it violated California’s Fair Debt Collection Practices Act (“the Rosenthal Act”), which incorporates the federal Fair Debt Collection Practices Act (FDCPA), and Unfair Competition Law (UCL). Asset Acceptance, LLC v. Hanson, (Cal.App., Case No. B208548, April 1, 2009) (unpublished) [Slip Opn., at 1]. The class action claims were premised on the allegation that Asset systematically and fraudulently sought to collect on debts that were time-barred. Id. The central allegation underlying the class action cross-complaint is that Asset purchased credit card debts “for pennies on the dollar and tricks debtors into making payments, which has the legal effect of reviving the debt.” This is because, under California law, “If a debtor acknowledges a debt in writing after the statute of limitations has run, ‘a new obligation is created, for which the original barred debt is said to be “consideration.” The cause of action is on the new obligation, and a new statutory period starts running as on any other written promise.’” Id., at 2 (citations omitted). Asset demurred to the third amended class action cross-complaint; the trial court sustained the demurrer on the ground that the class action sought to represent a class that lacked a “well-defined community of interest.” Id., at 1. In an unpublished opinion, the California Court of Appeal affirmed.

The Rosenthal Act “prohibits debt collectors from using threats, physical force, obscene language, annoying telephone calls, false representations, or falsely simulating a legal action.” Asset Acceptance, at 2 (citations omitted). In part, the statute prohibits a debt collector from obtaining “an affirmation from a debtor who has been adjudicated a bankrupt of a consumer debt which has been discharged in such bankruptcy, without clearly and conspicuously disclosing to the debtor, in writing, at the time such affirmation is sought, the fact that the debtor is not legally obligated to make such affirmation,” id. (citation omitted). The appellate court observed, however, that “The Rosenthal Act is silent on whether a debt collector must give a similar warning when attempting to collect a time-barred debt that has not been discharged in bankruptcy.” Id. This was the central issue on appeal, because the class action alleged that Asset failed to disclose to the putative class members that the debts it was seeking to collect were time barred when it contacted them demanding about payment on the credit card debts. Id., at 3. Further, not only was this a matter of first impression under California case law, but federal courts considering the issue under the FDCPA have reached different conclusions. Id., at 2-3.

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FDCPA Class Action Defense Cases–Del Campo v. American Corrective Counseling: California Federal Court Certifies FDCPA Class Action Finding Attack On Practices Used To Collect On Bounced Checks Warranted Class Action Treatment

Class Action Alleging FDCPA Violations Arising from Collection Practices Utilized to Collect from Check Writers of Bounced Checks Satisfied Rule 23 Requirements for Class Action Treatment California Federal Court Holds

Plaintiffs filed a putative class action against various defendants, including American Corrective Counseling Services (ACCS), alleging that they “engaged in a pattern of behavior in implementing the District Attorney Bad Check Diversion Program” that violated, inter alia, the California Constitution and the federal Fair Debt Collection Practices Act (FDCPA); specifically, the class action complaint alleged that defendants “operated the Diversion Program unlawfully by using the names of local district attorneys, demanding fees, and using the threat of criminal prosecution to force bad check writers to comply with their payment demands.” Del Campo v. American Corrective Counseling Services, Inc., ___ F.Supp.2d ___ (N.D. Cal. December 3, 2008) [Slip Opn., at 1 (footnote omitted)]. According to the allegations underlying the class action, various retail merchants would refer bounced checks to the District Attorney, who in turn would decide whether to refer the check writer to the diversion program. If it is referred, then defendants “instruct the merchants not to communicate” with the check writers and send out letters “purporting to be from the Santa Clara District Attorney’s Bad Check Restitution Program or the Sonoma County District Attorney Bad Check Restitution Program” and explaining that they can “avoid criminal prosecution for allegedly violating California Penal Code 476(a) by enrolling in the optional Bad Check Programs, without any admissions of guilt.” _Id._, at 2-3. The letter would instruct the bad check writers to make new checks out to the Bad Check Program, and included in the total to be paid the amount of the bounced check, a $35 administration fee, and a diversion program fee. _Id._, at 3. Many check writers tendered less than the total amount listed in the letter, and never intended on participating in the Bad Checks Program and did not participate in the program, _id._ Defendants sent subsequent letters demanding payment of the balance of the sums owed. The class action followed, alleging _inter alia_ violations of the FDCPA and California’s Unfair Business Practices Act. _Id._ Plaintiffs’ attorneys moved the district court to certify the litigation as a class action; defense attorneys argued against class action treatment. _Id._, at 2. The district court determined that class action treatment was warranted and therefore granted plaintiffs’ class action certification motion.

With respect to Rule 23(a)’s requirements for class certification, the district court noted that defendants did not contest numerosity or commonality, but argued that plaintiffs’ claims were not typical and that they were not adequate representatives of the class. Del Campo, at 6. The federal court agreed that the numerosity and commonality tests had been met, see id., at 7-9. Turning to the typicality test, the court noted at page 9, “Defendants contend that Plaintiffs have not met the typicality requirement because the collection letters sent by Defendants contained ‘significant differences’ on a county-by-county basis.” Plaintiffs countered that the class action allegations assert that each of the letters “contain representations that: (1) the letter is from the local District Attorney, who has reviewed a criminal complaint made by the recipient of a dishonored check; (2) check writers who do not choose ‘diversion’ face a real risk of prosecution; and (3) to avoid prosecution, the check writer must pay the check, plus enumerated fees, and attend a ‘Financial Accountability’ Class.””Id., at 9. The district court agreed with plaintiffs, and found that the typicality test had been met, id., at 10. Defendants also argued that the named plaintiffs were not adequate representatives of the class and that plaintiffs’ counsel had a conflict of interest in representing the class. Id., at 10. The basis for the attack on the plaintiffs was their dishonesty, as evidenced by the fact that they bounced checks; the district court readily concluded that an element of being in the class could not disqualify someone from serving as the class representative. Id., at 11. And the court rejected the idea that the lobbying efforts of plaintiffs’ counsel created a conflict of interest in representing the class. Id., at 12.

Certification of Class Actions Class Action Court Decisions FDCPA Class Actions Uncategorized

FDCPA Class Action Defense Cases–Herkert v. MRC Receivables: Illinois Federal Court Amends Class Definitions And Certifies Class Action In FDCPA (Fair Debt Collection Practices Act) Class Action

Class Action Challenging Defendants Debt Collection Practices Warranted Class Action Treatment Illinois Federal Court Holds

Plaintiffs filed a class action against MRC Receivables and others alleging violations of the federal Fair Debt Collection Practices Act (FDCPA) and the Illinois Collection Agency Act (ICAA). Herkert v. MRC Receivables Corp., 254 F.R.D. 344, 346 (N.D.Ill. 2008). Defendants are engaged in the business of “purchasing and managing charged-off consumer receivables portfolios.” Id. After defendants filed suit against them to collect on credit card debts, plaintiffs filed their class action lawsuit, id. Specifically, the class action complaint alleged that defendants “had a policy and practice of violating Section 1692e and 1692f of the FDCPA, and Section 425/9(a)(20) of the ICAA,” id., at 346-47. The gravamen of the class action is that defendants filed lawsuits to collect credit card debts without attaching a signed contract to the complaints, and after the expiration of the 5-year statute of limitations. Id., at 347. Plaintiffs moved the district court to certify the litigation as a class action, id., at 346. The district court amended the definition of the class and, as amended, granted plaintiffs’ motion for class action treatment.

The motion for class certification proposed three classes, under the FDCPA and one under the ICAA. Heckert, at 347. The district court readily found Rule 23(a)(1)’s numerosity requirement for class actions to be satisfied because defendants “file…thousands of cases each month in Illinois state court.” Id., at 348. The federal court rejected defendants’ claim that they would not be able “to construct an accurate search of their record-keeping system on a searchable, system-wide basis, and that it would thus be impossible to determine the identity of the class members.” Id. However, the court agreed to amend the class definitions “to ensure that the classes are ascertainable based on objectively identifiable criteria, namely, according to the date of the final statement of account as given in the affidavits attached to the state court complaints.” Id. As so amended, the class definition would not require the parties to rely on defendants’ records in order to ascertain class membership, id., at 349.

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FDCPA Class Action Defense Cases–Campuzano-Burgos v. Midland Credit: Third Circuit Reverses FDCPA Class Action Ruling In Favor Of Plaintiffs Holding Dunning Letters Underlying Class Action Did Not Violate FDCPA

As Matter of First Impression, Dunning Letters/Settlement Offer Letters Sent by Debt Collector over Signatures of Corporate Officers who did not Write, Sign or Personally Authorize Letters did not Violate FDCPA because Letters were Plainly Sent on Behalf of Corporation and not Individuals Third Circuit Holds

Plaintiffs filed a class action against various defendants, including Midland Credit Management, alleging violations of the federal Fair Debt Collection Practices Act (FDCPA); the class action complaint asserted that defendants sent “false, misleading, or deceptive collection notices in contravention of §§ 1692e and 1692e(9) of the Act.” Campuzano-Burgos v. Midland Credit Management, Inc., 550 F.3d 294, 296 (3d Cir. 2008). The main question presented by the FDCPA class action, and the question the district court ultimately certified to the Third Circuit, was “whether a senior officer of a collection company violates the Act by signing ‘dunning letters’ sent to debtors.” Id. The parties filed cross motions for summary judgment on the issue of liability; the district court rejected the defense motion holding that a debt collector violates the FDCPA “by sending debtors settlement offers that bear the name of one of the company’s senior executives.” Id. The Third Circuit accepted the certified question and concluded that defendants did not violate the FDCPA; accordingly, it remanded the class action to the district court with instruction to enter judgment in favor of the defendants.

The debt collection letters sent by defendants to collect unpaid debts were “nearly identical in content and form.” Campuzano-Burgos, at 296. The letters were signed by corporate officers of Midland Credit, and accurately reflected their titles and positions with the company, id., at 297. But while the officers were deemed to have authorized the letters, they were not attorneys they did not actually write or sign the letters, and the letters were sent without the officers’ knowledge. Id. The district court concluded that case law “expresse[d] a general concern with debt collectors’ practice of falsely implying that someone in a position of real authority [wa]s supervising the collection of [a] debt.” Campuzano-Burgos v. Midland Credit Mgmt., Inc., 497 F.Supp.2d 660, 664 (E.D.Pa. 2007). The district court held that the letters violated the FDCPA because “the use of top executives of the company as signatories is likely meant to impress upon debtors the seriousness of the communication and will almost certainly have such an effect on at least some debtors.” 550 F.3d at 298 (quoting 497 F.Supp.2d at 665). Moreover, because the officers “had no ‘actual involvement in the decision to send the letter[s] to a particular debtor … the letters … are deceptive and misleading within the meaning of Section 1692e.’” Id. (citation omitted). On appeal, defense attorneys argued that the letters were not deceptive and clearly conveyed that they were sent on behalf of “the company as a whole” rather than the individual officers, id. The Third Circuit agreed.

Class Action Court Decisions FDCPA Class Actions Uncategorized

FDCPA Class Action Defense Cases–Anchondo v. Anderson: New Mexico Federal Court Denies Motion To Dismiss FDCPA Class Action Holding Class Action Complaint Adequately Alleged Debt Collector Violated State And Federal Laws

Class Action Alleging Violation of Fair Debt Collection Practices Act (FDCPA) Survives Defense Motion to Dismiss because Class Action Complaint Alleged Debt Collector Failed to Identify Itself or that it was Attempting to Collect a Debt in its Initial Communication with Plaintiff New Mexico Federal Court Holds

Plaintiff filed a class action against a debt collector alleging violations of the federal Fair Debt Collection Practices Act (FDCPA) and New Mexico’s Unfair Practices Act; the class action complaint asserted that. Anchondo v. Anderson, Crenshaw & Associates, L.L.C., 583 F.Supp.2d 1278, 1280 (D. N.M. 2008). According to the allegations underlying the class action, plaintiff purchased a home alarm system which failed to work properly so she stopped paying the monthly service fee; the alarm company retained debt collector Anderson, Crenshaw & Associates to collect the fees owed. Id. Defendant telephoned plaintiff and left a message on her answering machine requesting a return call; the message said the matter was “important,” but did not identify defendant or disclose that it concerned an attempt to collect a debt. Id. Plaintiff filed her class action complaint a few months later, alleging claims for relief under the FDCPA and the UPA, id. Defense attorneys moved to dismiss the class action under Rule 12(b)(6) or, alternatively, for judgment on the pleadings under Rule 12(c). Id., at 1279-80. The defense argued that the class action failed because the message left on plaintiff’s answering machine was not a “communication” within the meaning of the FDCPA, and because the FDCPA was unconstitutionally vague and unreasonably impeded defendant’s First Amendment right to exercise commercial speech. Id., at 1280. The district court denied the motion.

With respect to defendant’s Rule 12(b)(6) motion, the district court readily found that the allegations in the class action complaint satisfied the requirements for pleading a violation of the FDCPA because it alleged that defendant (1) “fail[ed] to identify itself” and (2) failed to “state that the voicemail message was left on her answering machine as an attempt to collect a debt.” Anchondo, at 1280 (citing 15 U.S.C. § 1692e(11)). And because the complaint’s allegations are accepted as true for purposes of Rule 12(b)(6) motions, the alleged constitutional law defenses “have no bearing as to whether Plaintiff has made sufficient factual allegations to state a claim upon which relief can be granted.” Id., at 1280-81 (citation omitted).

With respect to the Rule 12(c) motion, the federal court explained that the FDCPA requires debt collectors to disclose their identity in initial communications made for the purpose of collecting a debt, and that the purpose of the communication is to collect a debt. Anchondo, at 1281. Congress enacted the FDCPA to protect consumers against abusive debt collection practices, and because the message defendant left for plaintiff did not include the required disclosures she “would be entitled to relief, pursuant to the FDCPA, if she can prove that the voicemail was a communication regarding a debt.” Id. (citation omitted). The district court concluded that nothing more was required “at this stage of the proceedings,” and that the constitutional challenges were not ripe for adjudication. Id., at 1281-82. Accordingly, it denied the defense motion in its entirety. Id., at 1282.

Class Action Court Decisions FDCPA Class Actions Uncategorized

FDCPA Class Action Defense Cases–Seeger v. AFNI: Seventh Circuit Affirms Summary Judgment Against Debt Collector In FDCPA Class Action Holding Fee Sought To Be Recovered By Debt Collector Were Not Authorized

District Court Properly Granted Plaintiffs’ Summary Judgment Motion in Class Action Under Fair Debt Collection Practices Act (FDCPA) because Fees Debt Collector Sought to Recover and Underlying Class Action Claims were not Proper Seventh Circuit Holds

Plaintiffs filed a class action against AFNI, a debt collection company, alleging violations of the federal Fair Debt Collection Practices Act (FDCPA) and the Wisconsin Consumer Act; the class action complaint asserted that AFNI’s collection practices violated state and federal law because ANFI sought to collect a 15% that was not authorized by either statute or contract. Seeger v. AFNI, Inc., 548 F.3d 1107, 1109-10 (7th Cir. 2008). According to the class action complaint, plaintiffs had entered into contracts with various cellular telephone service providers, and each contract advised customers of the possibility that a debt collection agency may be retained in the event of a payment default, id., at 1109-10; for example, Cingular’s contracts provided that customers would be required to pay “the fees of any collection agency, which may be based on a percentage at a maximum of 33% of the debt, and all costs and expenses, including reasonable attorneys’ fees and court costs,” incurred in collecting payments owed, id., at 1110. Additionally, each service contract “contained various provisions making it clear that failure to pay was cause for termination of the contract and that an early termination fee or cancellation fee would be imposed.” Id. Each plaintiff fell behind on payments owed under the cell phone contracts, id., at 1109. AFNI purchased the accounts, and sent debt collection letters to plaintiffs “informing each one that he owed a debt and that Cingular was the original creditor” and that each “was responsible for paying AFNI a collection fee of 15% of the ‘original balance.’” Id., at 1109-10. Plaintiffs filed the class action complaint “alleging that [ANFI’s] attempt to include a separate collection fee in the amount due violated the FDCPA”; an amended class action complaint added party plaintiffs and added also the Wisconsin Consumer Act claim. Id., at 1110. Plaintiffs’ attorneys moved the district court to certify the litigation as a class action, and the district court agreed that class action treatment was warranted. Id., at 1110. The parties then filed cross motions for summary judgment; the district court ruled in favor of plaintiffs and ANFI appealed. Id., at 1109. The Seventh Circuit affirmed.

In ruling on the summary judgment motions, the district court concluded that AFNI violated both the FDCPA and Wisconsin state law “because neither AFNI’s contracts with its customers nor Wisconsin law authorized it to charge the type of collection fee it was using.” Seeger, at 1109. Specifically, the district court ruled that ANFI “violated the FDCPA because neither the contracts nor Wisconsin law permitted the owner of a debt to impose a separate fee for collection, if the fee was for the purpose of reimbursing the owner itself as opposed to a third-party debt collector.” Id., at 1110. Defense attorneys first argued that Wisconsin law permits debt collectors to charge “incidental or consequential damages” for customer breaches of the cell phone service contracts, and by extension that the 15% fee it sought to charge plaintiffs “may be collected by an entity that purchases the contract for collection purposes.” Id., at 1111. The Seventh Circuit disagreed. The Court recognized that all states “permits recovery of losses that are the natural and probable result of the breach of a contract and that were within the reasonable contemplation of the parties” and that “[t]his rule applies to service contracts like the plaintiffs’ cell phone contracts,” id. (citations omitted), but it found ANFI’s reliance on this general proposition to be insufficient. Rather, to recover the 15% fee it sought to impose, ANFI “must show that this rule permits a third-party purchaser of an account to recover its internal costs to recover the debt in this manner, and, if so, that the 15% fee it charged to the plaintiffs reflected AFNI’s actual costs.” Id. The defense argument failed, the Circuit Court concluded, because (1) “Neither a law expressly permitting a collection fee on behalf of a person in the position of a seller of cellular telephone services nor an agreement between the class members and their cellular providers exists here”; and (2) ANFI failed to establish that the fee it sought to charge “can properly be characterized as incidental or consequential damages resulting from the plaintiffs’ breach of their cellular phone contracts with Cingular.” Id., at 1112.

Class Action Court Decisions FDCPA Class Actions Uncategorized

FDCPA Class Action Defense Cases–Quiroz v. Revenue Production Management: Illinois Federal Court Certifies Class Action Holding Requirements For Certification Of Rule 23(b)(3) Class Action Had Been Met

FDCPA Class Action Complaint Warranted Class Action Treatment because Plaintiff Satisfied Requirements for Rule 23(b)(3) Class Illinois Federal Court Holds

Plaintiff filed a class action against Revenue Production Management, Inc., a debt collection agency, alleging violations of the federal Fair Debt Collection Practices Act (FDCPA); the class action complaint asserted “that Defendant had a policy and practice of violating Section 1692e of the FDCPA by: (1) sending [debt collection letters] after the expiration of the 30-day validation period outlined in the initial communication; (2) informing the consumer that the debt must be disputed in writing after expiration of the 30-day validation period outlined in the initial communication; and (3) informing the consumer that a dispute must be made within 30 days of the initial communication, after the expiration of the 30-day validation period outlined in the initial communication.” Quiroz v. Revenue Production Management, Inc., 252 F.R.D. 438, 440 (N.D. Ill. 2008). Plaintiff’s lawyers filed a motion with the district court to certify the litigation as a class action. Id. The district court concluded that class action treatment was warranted and granted plaintiff’s motion.

Plaintiff incurred debts in connection with medical treatment he received, but “[he] did not pay the debt because he believed it was covered by his employer’s workers’ compensation insurance.” Quiroz, at 440. After plaintiff defaulted on the obligation, it was assigned to defendant who sent plaintiff an initial debt collection letter on April 17, 2007. Id. It was not until June 6, 2007, however, that defendant sent a letter to plaintiff advising him that “[i]f you dispute the validity of this debt then you must notify us in writing within 30 (thirty) days of our initial notice to you.” Id. Plaintiff’s class action certification motion asserted that a Rule 23(b)(3) class action should be certified, id., at 440-41.

Certification of Class Actions Class Action Court Decisions FDCPA Class Actions Uncategorized