Wilborn v. Dun & Bradstreet Corp.

180 F.R.D. 347, 1998 U.S. Dist. LEXIS 12618, 1998 WL 455777
CourtDistrict Court, N.D. Illinois
DecidedAugust 5, 1998
DocketNo. 97 C 8990
StatusPublished
Cited by33 cases

This text of 180 F.R.D. 347 (Wilborn v. Dun & Bradstreet 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
Wilborn v. Dun & Bradstreet Corp., 180 F.R.D. 347, 1998 U.S. Dist. LEXIS 12618, 1998 WL 455777 (N.D. Ill. 1998).

Opinion

MEMORANDUM OPINION AND ORDER

GETTLEMAN, District Judge.

Plaintiff Eddie J. Wilborn has filed a two-count amended class action complaint against defendant Dun & Bradstreet Corporation, doing business as Dun & Bradstreet Receivable Management Services, alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). Plaintiff has moved for class certification. For the reasons set forth below, plaintiffs motion is granted.

FACTS

When evaluating a motion for class certification, the court accepts the allegations made in support of certification as true, and does not examine the merits of the case. See Hardin v. Harshbarger, 814 F.Supp. 703, 706 (N.D.Ill.1993). According to the amended complaint, plaintiff is a resident of Illinois. Defendant is a Delaware corporation and a “debt collector” under the FDCPA. Plaintiff obtained insurance for personal, family, or household purposes from Economy Fire & Casualty Company (“Economy”). Shortly after May 8, 1997, plaintiff received a letter from defendant demanding payment of an insurance premium to Economy. Plaintiff claims that the letter is a form collection notice used by defendant. The letter, a copy of which was attached to the amended com[350]*350plaint as Exhibit A, states that “this communication is being sent to you as a final attempt to amicably resolve [your] past-due account ... unless your check is received within five days, steps will be taken to enforce payment of this obiligation [sic].” Plaintiff asserts no action to enforce payment of the obligation was taken within five days, or at any time prior to October 21, 1997, when plaintiff filed for bankruptcy. Plaintiff asserts that defendant regularly used the form of notice represented by Exhibit A. He also asserts that defendant regularly failed to take action to enforce payment if payment was not received within five days after sending notices in the form of Exhibit A. Therefore, in Count II, plaintiff claims that defendant has violated the FDCPA by sending the form collection letter to consumers because the letter contains false and misleading threats.

The back of the letter contains a notice of the debtor’s right to dispute and obtain verification of the debt. Plaintiff asserts that the notice language on the back of the letter is the same language used by defendant on other collection letters. Plaintiff also asserts that Exhibit A, or another letter with identical language on the back, was the first letter he received from defendant concerning the debt to Economy. Defendant has modified the notice language required by the FDCPA by adding the following language at the beginning of the notice:

IMMEDIATE PAYMENT IS REQUESTED. HOWEVER, IF THE AMOUNT CLAIMED AS OWING ON THE OTHER SIDE OF THIS LETTER ARISES FROM A PERSONAL, FAMILY, HOUSEHOLD OR AGRICULTURAL TRANSACTION OR OTHERWISE INVOLVES A CONSUMER TRANSACTION, PLEASE NOTE THE FOLLOWING ....

The notice language required by the FDCPA then follows:

IF THIS IS THE FIRST NOTICE YOU HAVE RECEIVED FROM THIS OFFICE IN REGARDS TO THIS DEBT, THEN:
IF YOU DISPUTE THE VALIDITY OF THIS DEBT, OR ANY PORTION THEREOF, NOTIFY THIS OFFICE WITHIN THIRTY DAYS AFTER RECEIVING THIS NOTICE. IF YOU DO NOT NOTIFY THIS OFFICE WITHIN THIRTY DAYS THAT YOU DISPUTE THE VALIDITY OF THIS DEBT OR ANY PORTION THEREOF, THIS OFFICE WILL ASSUME THIS DEBT IS VALID.
IF YOU REQUIRE VERIFICATION OF THIS DEBT, NOTIFY THIS OFFICE IN WRITING WITHIN THIRTY DAYS FROM RECEIVING THIS NOTICE. THIS OFFICE WILL OBTAIN VERIFICATION OF THE DEBT OR OBTAIN A COPY OF A JUDGMENT AND MAIL YOU A COPY OF SUCH VERIFICATION OR JUDGMENT; AND IF YOU REQUEST THIS OFFICE IN WRITING WITHIN THIRTY DAYS AFTER RECEIVING THIS NOTICE, THIS OFFICE WILL PROVIDE YOU WITH THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF DIFFERENT FROM THE CURRENT CREDITOR.
THIS LETTER IS AN ATTEMPT TO COLLECT THIS DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.

In Count I, plaintiff claims that defendant has violated the FDCPA because the request for immediate payment and other language added by defendant is confusing, and overshadows and contradicts the notice language required by the FDCPA.

Plaintiff asserts this class action on behalf of two proposed classes: Class A and Class B.

Class A is defined as:

(a) All natural persons, (b) [w]ith addresses in the State of Illinois, (c) [t]o whom [defendant] sent initial letters, (d) [w]ith a reverse side in the form represented by Exhibit A, (e) [o]n or after December 31, 1996, (f) [s]eeking to collect debts which, from the records of defendant or the creditor or the nature of the creditor or debt, are non-business debts, (g) [w]hich letters were not returned by the Postal Service as undeliverable.

[351]*351Class B is defined as:

(a) All natural persons, (b) [w]ith addresses in the State of Illinois, (c) [t]o whom [defendant] sent letters, (d) [i]n the form represented by Exhibit A, (e) [o]n or after December 31, 1996, (f) [s]eeking to collect debts which, from the records of defendant or the creditor or the nature of the creditor or debt, are non-business debts, (g) [w]hieh letters were not returned by the Postal Service as undeliverable, and (h) [a]gainst whom legal action was not taken within 30 days after the date of the letter.

The claim in Count I is asserted on behalf of Class A, and the claim in Count II is asserted on behalf of Class B.

DISCUSSION

Fed.R.Civ.P. 23, which governs class actions, requires a two-step analysis to determine whether class certification is appropriate. First, plaintiff must satisfy all four requirements of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. See Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir.1993). Second, plaintiff must satisfy one of the conditions of Rule 23(b). See Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir.1977). Plaintiff seeks certification under Rule 23(b)(3), which requires that questions of law or fact common to class members predominate over questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The failure to meet any one of the requirements of Rule 23 precludes certification of a class. See Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). Plaintiff bears the burden of showing that the requirements for class certification have been met. See Hardin v. Harshbarger, 814 F.Supp. 703, 706 (N.D.Ill.1993). Plaintiff must also establish that he has standing to bring this suit by showing that he is a member of each class that he purports to represent. See East Texas Motor Freight Sys., Inc. v. Rodriguez,

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Cite This Page — Counsel Stack

Bluebook (online)
180 F.R.D. 347, 1998 U.S. Dist. LEXIS 12618, 1998 WL 455777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilborn-v-dun-bradstreet-corp-ilnd-1998.