Herkert v. MRC Receivables Corp.

254 F.R.D. 344, 72 Fed. R. Serv. 3d 106, 2008 U.S. Dist. LEXIS 98159, 2008 WL 5082725
CourtDistrict Court, N.D. Illinois
DecidedDecember 1, 2008
DocketNo. 08 C 760
StatusPublished
Cited by18 cases

This text of 254 F.R.D. 344 (Herkert v. MRC Receivables Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herkert v. MRC Receivables Corp., 254 F.R.D. 344, 72 Fed. R. Serv. 3d 106, 2008 U.S. Dist. LEXIS 98159, 2008 WL 5082725 (N.D. Ill. 2008).

Opinion

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Nicole Herkert and Winona Jackson (“Plaintiffs”) filed this putative class action against MRC Receivables Corp. (“MRC”),

Midland Funding NCC-2 Corp. (“NCC”), Midland Credit Management, Inc. (“MCM”), and Encore Capital Group, Inc. (“Encore”) (collectively “Defendants”), for violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Illinois Collection Agency Act (“ICAA”), 225 ILCS 425/9(a)(20). (R. 34, Pis.’ Mem. in Support of Mot. for Class Cert. (“Pis.’ Mem”) at 3.) Currently before the Court is Plaintiffs’ motion for class certification. (R. 32, Pis.’ Mot. for Class Cert. (“Pis.’ Mot.”)) For the following reasons, the motion is granted, with the class definitions amended as stated herein.

BACKGROUND

Encore is a publicly traded company which engages in purchasing and managing charged-off consumer receivables portfolios. (R. 31, Pis.’ First Amend. Compl. at 1TH 21-22. (“Pis.’ Compl.”)) These purchased portfolios are held by Encore’s indirect subsidiaries, NCC and MRC. (R. 64, Defs.’ Opp. to Mot. for Class Cert. (“Defs.’ Opp.”) at 2.) MCM is another affiliate of Encore, and is responsible for collecting on the debts that are purchased and held by NCC and MRC. (Id.; R. 31, Pis.’ Compl. 1IH19-21.)

On November 28, 2007, MRC filed suit against Plaintiff Winona Jackson, and NCC filed suit against Plaintiff Nicole Herkert to collect on alleged credit card debts. (Id.) Attached to both complaints (filed in Illinois state court) was a Form 409 Affidavit indicating that the date of the final statement of account was October 4, 2002, for Plaintiff Jackson, and July 24, 2000, for Plaintiff Her-kert. (R. 31, Pis.’ Compl., Apps. A, B.) Each complaint also attached a copy of the relevant cardmember agreement, but neither agreement was signed by the card holder. (See id.) Both suits were later dismissed. (R. 64, Defs.’ Opp. at 2-3.)

Plaintiffs allege that Defendants had a policy and practice of violating Section 1692e and 1692f of the FDCPA,1 and Section [347]*347425/9(a)(20) of the ICAA,2 by: (1) filing suit, or causing suit to be filed, against Illinois residents on alleged credit card debts where a written, signed contract is not attached to the complaint; and (2) filing suit, or causing suit to be filed, against Illinois residents on alleged credit card debts after the expiration of the applicable five-year statute of limitations. (R. 31, Pis.’ Compl. at 111157-58.)

In the motion for class certification, Plaintiffs ask this Court to certify three classes, defined as follows:

Class A: (a) all natural persons (b) sued in the name of NCC-2 (e) in an Illinois court (d) on an alleged credit card debt (e) where the complaint did not attach a signed contract, or attached a purported contract that is subject to change by notice, (f) where the date of delinquency or last payment in defendants’ records are both more than five years prior to the filing of suit, and (g) the suit was filed on or after a date one year prior to this action, and not more than 20 days after the filing of this action. Class B: (a) all natural persons (b) sued in the name of MRC (c) in an Illinois court (d) on an alleged credit card debt (e) where the complaint did not attach a signed contract, or attached a purported contract that is subject to change by notice, (f) where the date of delinquency or last payment in defendants’ records are both more than five years prior to the filing of suit, and (g) the suit was filed on or after a date one year prior to this action, and not more than 20 days after the filing of this action. Class C: (a) all natural persons (b) sued in the name of MCM (c) in an Illinois court (d) on an alleged credit card debt (e) where the complaint did not attach a signed contract, or attached a purported contract that is subject to change by notice, (f) where the date of delinquency or last payment in defendants’ records are both more than five years prior to the filing of suit, and (g) the suit was filed on or after a date one year prior to this action, and not more than 20 days after the filing of this action.

(R. 32, Pis.’ Mot. at 1-2.) Classes A and B represent plaintiffs with claims under the FDCPA (“FDCPA classes”). Class C represents plaintiffs with claims solely under the ICAA (“ICAA class”). (Id.)

LEGAL STANDARDS

A plaintiff seeking class certification has the burden of proving that the proposed class meets the requirements of Rule 23 of the Federal Rules of Civil Procedure. Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir.2000); Wahl v. Midland Credit Mgmt., 243 F.R.D. 291, 295 (N.D.Ill.2007). A class may be certified 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). Failure to meet any of the requirements of Rule 23(a) precludes class certification. Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir.2006).

Once a potential class satisfies the Rule 23(a) prerequisites, the potential class must also satisfy at least one provision of Rule 23(b). Arreola v. Godinez, 546 F.3d 788, 797 (7th Cir.2008). Plaintiffs seeking monetary damages, as Plaintiffs are here, must satisfy the requirements of Rule 23(b)(3), which requires the Court to find that “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.” Fed.R.Civ.P. 23(b)(3). The Court has broad discretion to determine whether the proposed class meets the requirements of Rule 23 and may modify a proposed class definition if the modification will remedy an inadequate definition. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir.2003).

[348]*348Further, for purposes of deciding the certification question, the Court does not presume that all well-pleaded allegations are true. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676-77 (7th Cir.2001).

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Cite This Page — Counsel Stack

Bluebook (online)
254 F.R.D. 344, 72 Fed. R. Serv. 3d 106, 2008 U.S. Dist. LEXIS 98159, 2008 WL 5082725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herkert-v-mrc-receivables-corp-ilnd-2008.