United States District Court, S.D. Indiana, Indianapolis Division
JAMES FOSNIGHT individually and on behalf of all others similarly situated, Plaintiff,
CONVERGENT OUTSOURCING, INC. a Washington corporation, and Jefferson Capital Systems, LLC, a Georgia limited liability company, Defendants
JAMES FOSNIGHT, individually and on behalf of all others
similarly situated, Plaintiff: Angie K. Robertson, Mary E.
Philipps, David J. Philipps, PHILIPPS AND PHILIPPS, LTD.,
Palos Hills, IL; John Thomas Steinkamp, JOHN T. STEINKAMP AND
ASSOCIATES, Indianapolis, IN.
CONVERGENT OUTSOURCING, INC., a Washington corporation,
JEFFERSON CAPITAL SYSTEMS, LLC, a Georgia limited liability
company, Defendants: Charity A. Olson, Olson Law Group, Ann
ON PLAINTIFF'S AMENDED MOTION TO CERTIFY CLASS
J. McKINNEY, UNITED STATES DISTRICT JUDGE.
action is now before the Court on Plaintiff James
Fosnight's, individually and on behalf of himself and all
others similarly situated (" Plaintiff's" ),
Amended Motion to Certify Class (the " Motion" ).
Dkt. No. 22. For the reasons stated herein, the Court GRANTS
BACKGROUND & ARGUMENTS
alleges that Defendants, Convergent Outsourcing, Inc. ("
Convergent" ) and Jefferson Capital Systems, LLC ("
Jefferson" ) (collectively, " Defendants" ),
sent Plaintiff a form collection letter, dated December 30,
2014, that failed to provide him with an effective validation
notice, in violation of § 1692g and § 1692f of the
Fair Debt Collection Practices Act (" FDCPA" ), 15
U.S.C. § 1692 et seq. See Compl.
¶ ¶ 9, 12-19; Dkt. No. 1-3. Plaintiff complains
that the letter did not state that if Plaintiff disputed the
debt, the dispute had to be made in writing to protect his
right to obtain validation of the debt, which is required by
§ 1692g(a)(4). Dkt. No. 23 at 1-2. Further, Plaintiff
asserts that such failure to advise him that his dispute must
be in writing to be effective, is an unfair or unconscionable
means to collect or attempt to collect the debt in violation
of § 1692f. Id. at 2.
argues that the Court should allow him to represent a class
with the following definition: All persons similarly situated
in the State of Indiana from whom Defendants attempted to
collect a delinquent consumer debt allegedly owed for an
Apsire credit card account, via the same form collection
letter that Defendants sent to Plaintiff from one year before
the date of the Complaint to the present. Id.
Plaintiff asserts that all the pre-requisites for class
certification pursuant to Rules 23(a) and (b)(3) of the
Federal Rules of Civil Procedure (" Rules 23(a) and
(b)(3)" ) are met.
as to numerosity, Plaintiff states that the proposed class
would consist of at least 74 persons who received the same
initial communication letter as he did. Dkt. No. 23 at 4;
Dkt. No. 38 at 4-6. Plaintiff relies on account notes
provided by Defendants to evidence that at least 74
individuals in Indiana received no prior written
communication regarding their debts. Dkt. No. 38 at 6;
Robertson Decl. at Ex. A. With respect to commonality, or
issues that are common amongst the putative class members,
Plaintiff asserts that there are at least two issues common
to each class member: (1) whether or not the form collection
letter violates the FDCPA; and (2) the amount of statutory
damages to which each class member is entitled. Dkt. No. 23
at 4-5. Similarly, Plaintiff claims that his claim is typical
" because they are brought pursuant to the FDCPA, relate
to the identical form debt collection letter, and involve the
same course of conduct by Defendant." Id. at 5.
Finally, in regards to adequacy of representation, Plaintiff
denies any claims that are antagonistic to the class, and
avers that he has sufficient interest in the outcome to
ensure vigorous advocacy. Id. at 5-6; Dkt. No. 38 at
8-9. Further, Plaintiff's counsel is highly experienced
in bringing class claims pursuant to the FDCPA. Dkt. No. 23
at 6; Dkt. No. 38 at 9-10.
primarily argue that the class is not ascertainable because
individual questions regarding the timing, content and effect
of the communication on the individual putative class members
predominate. Dkt. No. 28 at 2, 6-9. Defendants make similar
arguments with respect to commonality. Id. at 10-11.
In addition, Defendants argue that Plaintiff cannot show that
the class is sufficiently numerous. Id. at 9-10.
Moreover, Defendants contend that Plaintiff cannot show that
his claims are " in fact" typical of those of the
proposed class because there are too many factual
distinctions to be made regarding whether or not the subject
form letter was an " initial communication" as
required by § 1692g. Id. at 11-12. This same
question, Defendants allege, dooms Plaintiff's claim that
he " has the same essential characteristics of the class
at large." Id. at 12. Defendants finally
contend that Plaintiff cannot show that common issues
predominate when their affirmative defenses depend upon the
particular facts as to each putative class member; and that
individual class members would not achieve as good a result
as they could if they filed suit alone. Id. at
standards for class certification are found in Rule 23 of the
Federal Rules of Civil Procedure (" Rule 23" ).
Rule 23 provides that a named party may sue on behalf of
individuals who are similarly situated if six requirements
are met: (1) the class is so numerous that joinder of all
putative class members is impracticable ("
numerosity" ); (2) there are questions of law or fact
common to the putative class members or ("
commonality" ); (3) the claims or defenses of the named
plaintiff are typical of the claims or defenses of the
putative class members (" typicality" ); (4) the
named plaintiff will fairly and adequately protect the
interests of the class; (5) questions of law or fact common
to the putative class members predominate over any questions
affecting only individual putative class members; and (6) a
class action is superior to other available methods to fairly
and efficiently adjudicate the controversy. Fed. Rs. Civ. P.
23(a) & 23(b)(3); Messner v. Northshore Univ.
HealthSys., 669 F.3d 802, 811 (7th Cir. 2012). In
determining whether or not to certify this class, the Court
must take into consideration any evidence submitted by the
parties, including any exhibits. Messner, 669 F.3d
RULE 23(a) FACTORS
primarily argue that individual issues of fact preclude a
conclusion that the class is identifiable; in other words,
there is no support for Plaintiff's assertion that the
class is easily identifiable, numerous enough that joinder is
impractical, that his claims are typical of those of the
putative class members, that common questions of law and fact
exist (and predominate), or that Plaintiff is an adequate
representative because his claims are so similar to those of
a the putative class members. The argument is without merit.
The claim Plaintiff raises in the Complaint is a simple one:
Does the letter he received from Defendants violate §
1692g or § 1692f of the FDCPA? Section 1692g requires
that, within 5 days of Defendant's first communication to
a consumer, Defendants had to provide the consumer with an
effective validation notice, containing, among other
disclosures " (4) a statement that if the consumer
notifies the debt collector in writing within the thirty-day
period that the debt or any portion thereof, is disputed, the
debt collector will obtain verification of the debt." 15
U.S.C. § 1692g(a)(4). Section 1692f prohibits a debt
collector from using any unfair or unconscionable means to
collect or attempt to collect a debt. 15 U.S.C. §
1692f(1). Plaintiff relies upon Defendant's own contact
records to evidence that at least 74 people in Indiana
received the subject letter as the first written
communication about the alleged debt. Robertson Decl., Ex. A.
Although it is possible that Defendants provided the
necessary information in an initial oral communication with a
putative class member, they have provided no evidence that
any such oral communication occurred with any of the
individuals who received the subject letter. As such,
although the class size may be narrowed by any further
discovery, at this stage of the litigation, the Court
concludes that Plaintiff's criteria for identification of
the class is sufficiently precise and objective to satisfy
the requirements of Rule 23. Further, that same criteria has
already identified at least 74 putative class members, which
is sufficient to satisfy the numerosity requirement because
joinder of 74 individuals would be impractical. Similarly,
because the class definition uses the letter as the
touchstone of potential liability under the FDCPA,
Plaintiff's claim is typical to those of similarly
situated class members.
respect to commonality and typicality, Defendants claim that
individual answers to multiple factual issues, such as
whether or not each class member received the letter or
whether or not the letter was in fact the initial
communication with or to the consumer, defeat Plaintiff's
argument that common questions drive this litigation. Dkt.
No. 28 at 10-12. As to receipt, it is presumed that the
letter Defendants mailed was received by each individual to
which it was addressed (Plaintiffs have already excluded
individuals who were sent the letter, but for which an
undeliverable notice was received back). SeeBobbitt v. The Freeman Cos., 268 F.3d 535, 538 (7th
Cir. 2001) (stating that " the law presumes timely
delivery of a properly addressed piece of mail" ).
Cf.Bartlett v. Heibl, 128 F.3d 497, 499
(7th Cir. 1997) (stating that reading the letter is not an
element of a violation of the FDCPA). And, again, with
respect to whether or not the letter was the initial
communication, Defendants' have provided no other records
of communication with these consumers. At this stage of the