Hernandez v. Midland Credit Management, Inc.

236 F.R.D. 406, 2006 U.S. Dist. LEXIS 45833, 2006 WL 1793572
CourtDistrict Court, N.D. Illinois
DecidedJune 27, 2006
DocketNo. 04 C 7844
StatusPublished
Cited by12 cases

This text of 236 F.R.D. 406 (Hernandez v. Midland Credit Management, Inc.) 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
Hernandez v. Midland Credit Management, Inc., 236 F.R.D. 406, 2006 U.S. Dist. LEXIS 45833, 2006 WL 1793572 (N.D. Ill. 2006).

Opinion

MEMORANDUM OPINION AND ORDER

PALLMEYER, District Judge.

Plaintiff Frank N. Hernandez, Jr. received a dunning letter from Defendant Midland Credit Management, Inc. (hereinafter, “MCM”). Along with an offer to settle Hernandez’s outstanding debt at a significant discount, the letter included a privacy notice that disclosed the possibility that MCM or its corporate parent, Defendant Encore Capital Group, Inc. (hereinafter, “Encore”), might share nonpublic information about Hernandez (gathered in the course of debt collec[408]*408tion) with certain nonaffiliated third parties unless Hernandez took affirmative steps to prevent this.

Hernandez alleges that the disclosure of such information, or the threat of such disclosure, violates the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (hereinafter, “FDCPA”). Hernandez moves for the certification of a class of Illinois debtors to whom Defendants sent this privacy notice between December 3, 2003 and December 23, 2004 and Wisconsin debtors to whom Defendants sent this privacy notice between January 11, 2004 and January 31, 2005. For the reasons explained here, Plaintiffs motion is granted.

STATEMENT OF FACTS

This court recently set out much of the relevant background in its order denying Plaintiffs motion for judgment on the pleadings, Hernandez v. Midland Credit Mgmt. Inc., No. 04-7844, 2006 WL 695451, *1-2 (N.D.Ill. Mar.14, 2006), but outlines the facts briefly here.

Roughly fifteen years ago, Illinois resident Hernandez obtained a credit card from Pro-vidian National Bank which he used for household purchases as well as ear and hotel rentals. (Hernandez Dep. at 47-50.) Hernandez stopped making payments on this card in August 2000, (id. at 50,) and Providi-an, presumably, sold the defaulted debt sometime thereafter, although the exact date of that sale does not appear in the record. Plaintiffs reason for not paying Providian also does not appear in the record, but MRC Receivables Corp. (hereinafter, “MRC,”) eventually acquired the Providian debt and contracted out collection to MCM.1 (Memorandum in Support of Plaintiffs Motion for Class Certification (hereinafter, “Pltf.’s Mem.,”) at Ex. A at 1.)

On November 14, 2004, MCM sent Hernandez a letter offering to settle his debt at a substantial discount.2 (Id.) The letter also included a form privacy notice generated by MCM’s legal department.3 (Id. at 2-3; Defendant Midland Credit Management, Inc.’s Response to Plaintiffs Interrogatories (hereinafter, “Def. MCM’s Resp. to Intrg.,”) at 2.) The privacy notice states that Defendant Encore (the parent corporation of both MCM and MRC),4 on behalf of its affiliates, including MCM, “is delivering this Privacy Notice so that you understand what nonpublic personal information we gather about you, how we use or share that nonpublic personal information, and the safeguards we have in place in order to protect that nonpublic personal information.” (Pltfs Mem. at Ex. A at 3. ) The privacy notice explains that:

In connection with collection on, or servicing, your account, we collect nonpublic personal information about you from the following sources:
• Directly from you, application or other forms (e.g., your name, address, social security number, telephone number and other information obtained from our communications with you);
• From your account transactions with us, our affiliates or others including, without limitation, the originating creditor (e.g., account balance, payment history, banking information and customer information);
[409]*409• From consumer reporting agencies (e.g., creditworthiness or credit history); and
• From other nonaffiliated third parties (e.g., providers of location information and demographic information).

(Id.) The notice states, further, that Encore and its affiliates reserve “the right to disclose all the nonpublic personal information” they collect to third parties, including:

• Financial service providers, such as mortgage bankers or other lenders;
• Non-financial companies, such as direct marketers or retailers.

(Id.) Finally, the privacy notice included an opt-out provision that advised Hernandez that if he wished to prevent the disclosure of nonpublic personal information to nonaffiliat-ed third parties, he must make an affirmative request for non-disclosure in writing. (Id.) MCM estimates that it sent a privacy notice in this form to approximately 56,793 account numbers with Illinois addresses between December 3, 2003 and March 31, 2004. (Def. MCM’s Resp. to Intrg. at 6.)

Hernandez was obviously not alone in receiving this notice, but he may well be alone in his sophistication about federal laws applicable to debt collection. Hernandez has worked as a loan administrator, credit analyst, and collections manager for several companies and banks. (Hernandez Dep. at 16-20.) Although these entities limited their collection efforts to their own accounts receivable (and were therefore not covered by the FDCPA), Hernandez became familiar enough with the FD CPA’s provisions to write a training manual for other creditors offering “a high-level overview” of the Act and to give presentations on it. (Id. at 20-26, 28-29, 34-35.) In October 2004, Hernandez filed suit against Risk Management Association for violation of the FDCPA; that case has since settled.5 (Id. at 38-40.) Nor is this case the first action in which Hernandez has been involved in litigation with MCM. MCM sued Hernandez in late 2001 for the collection of a debt. (Id. at 36; 38.) Hernandez has no recollection of this case other than that it was dismissed when MCM and its lawyers failed to appear on the trial date. (Id. at 37.)

Hernandez alleges that Defendants’ threats to disclose non-public, personal information are not idle ones. He notes Defendant Encore’s Report on SEC Form 10-K for the fiscal year ending December 31, 2004 (hereinafter, “Rep. SEC 10-K”). That Report identifies, as one of Encore’s collection strategies, the “transfer to our credit card partner [of] accounts for which [such a transfer] offers the highest opportunity for success. The credit card partner may offer the debtor the opportunity to establish new credit and transfer the balance on a credit card. If the account is transferred we receive an agreed-upon payment.” (Rep. SEC 10-K at 6.) Plaintiff believes that communications between Defendants and Defendants’ credit card partners are prohibited by the FDCPA. (Plaintiffs Reply in Support of Motion for Class Certification (hereinafter, “Pltf.’s Reply,”) at 7.)

PROCEDURAL HISTORY

On December 3, 2004, Plaintiff Hernandez filed suit against Defendants MCM and Encore, alleging violations of §§ 1692e-1692e of the FDCPA. These provisions of the FDCPA, discussed in greater depth below, generally prohibit certain kinds of third-party communications as well as harassing, threatening, or false communications in connection with debt collection. 15 U.S.C.

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Bluebook (online)
236 F.R.D. 406, 2006 U.S. Dist. LEXIS 45833, 2006 WL 1793572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-midland-credit-management-inc-ilnd-2006.