Court Grants Class Certification, MSJ for Plaintiff in FDCPA Case

A District Court judge in Illinois has granted a plaintiff’s motion for class certification as well as a motion for summary judgment in a Fair Debt Collection Practices Act case that hinged on the defendant’s inclusion of an internal notation when it identified the creditor to whom the debt was owed in a collection letter.

A copy of the ruling in the case of Tataru v. RGS Financial can be accessed by clicking here.

The plaintiff received a collection letter from the defendant, in regard to an unpaid credit card debt that was owed to the First National Bank of Omaha. In the letter, the defendant included a table that listed certain particulars of the debt, including the name of the creditor, which it said was “FNB Omaha II.” The defendant added the “II” at the end of the name to indicate to its employees that this was the second time the account had been placed with the defendant by the creditor. The plaintiff sued, alleging the notation violated Sections 1692g(a)(2), 1t692e, and 1692e(10) of the FDCPA because the letter allegedly mis-identified the name of the creditor.

Upon conclusion of discovery, the plaintiff filed a motion for class certification, which was followed by a motion for summary judgment from the defendant. The plaintiff responded with his own motion for summary judgment.

After first dealing with the issue of whether the plaintiff had standing to sue — the defendant argued he didn’t because he did not suffer a concrete injury, but Judge John Tharp, Jr., of the District Court for the Northern District of Illinois, Eastern Division, agreed with the plaintiff’s assertion that the inclusion of the “II” at the end of the creditor name led him to suspect that the letter was fraudulent — the Court then dealt with the motion to certify the class.

Judge Tharp rejected the defendant’s attempt to invoke the arbitration clause of the original cardholder agreement between the creditor and the plaintiff, saying it should have been done sooner.

When dealing with the certification motion, Judge Tharp agreed with the defendant that the wording of the retainer agreement between the plaintiff and his counsel could create a conflict between the plaintiff and other members of the class, because the agreement held the plaintiff liable for attorney’s fees if he accepted a settlement against the advice of his lawyers, but said that amending the agreement to strike that provision would be sufficient to not overrule the certification motion.

Moving on to the cross motions for summary judgment, Judge Tharp disagreed with the defendant’s arguments that the plaintiff knew he owed FNB Omaha money, rendering the addition of the “II” to the name of the creditor as meaningless. Judge Tharp noted that including the “II” was not in and of itself a violation of the FDCPA, but the location of it in the letter was the problem.

“The FDCPA relieves consumers of the burden to guess that RGS meant they were indebted to the ‘FNB Omaha’ instead of ‘FNB Omaha II,’ and suspecting that a scam is afoot upon learning that there is no ‘First National Bank of Omaha Two’ is just as reasonable as concluding that the actual creditor must actually be FNB Omaha,” Judge Tharp ruled.

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