Judge Grants Certification in FDCPA Class Action Over Reference to ‘Civil Action’ in Letter

A District Court judge in Wisconsin has certified a class in a case against a collection agency accused of violating the Fair Debt Collection Practices Act by saying it “may” commence a civil action if the debt was not paid even though it had no intention of doing so.

A copy of the ruling in the case of Kwasniewski v. Medicredit can be accessed by clicking here.

The plaintiff received a collection letter from the defendant seeking to collect on an unpaid medical debt of $224.66. The letter included the following passage:

If this debt remains unpaid, then 30 days from the date of this
letter the Facility may begin the following Extraordinary
Collection Actions (ECAs):

Reporting to a consumer credit reporting agency or credit bureaus (Credit Agencies)

Commence a civil action (suit) which may include:

Garnishment of wages

Attaching or seizing a bank account

Placing a lien on residences or other personal property

The passage was included in about 100 letters that the defendant sent to individuals across Wisconsin, according to the plaintiff.

The plaintiff claims that the creditor’s policies and procedures prohibit the filing of collection lawsuits when the balance is under $1,200, although multiple accounts can be combined to reach that threshold.

The plaintiff filed suit, alleging the letter violated Sections 1692e(2), 1692e(5), and 1692e(10) of the FDCPA by threatening a suit that the creditor had no intention of undertaking.

The defendant’s best shot at defeating class certification was its argument that while 108 letters using that language were sent, the evidence does not indicate whether all of those individuals had balances under the $1,200 threshold. While granting the certification, Judge William Conley of the District Court for the Western District of Wisconsin did concede that certification may be revisited if “future discovery reveals that the actual number of class members is in fact substantially lower than the plaintiff’s estimation.”

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