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Motion for Class Certification Acosta v Credit Bureau of Napa County

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Motion for Class Certification Acosta v Credit Bureau of Napa County
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   1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DIANA ACOSTA, on behalf of )  plaintiff and the class members ) described herein, ) Case No. 14-cv-8198 Plaintiff, ) ) vs. ) ) CREDIT BUREAU OF NAPA ) COUNTY, INC. d/b/a CHASE ) RECEIVABLES, ) Defendant. ) PLAINTIFF'S MOTION FOR CLASS CERTIFICATION Plaintiff Diana Acosta, respectfully requests that this Court enter an order determining that this Fair Debt Collection Practices Act ( FDCPA ) action may proceed as a class action against Defendant Credit Bureau of Napa County, Inc. d/b/a Chase Receivables (“Chase Receivables” or “Defendant”). Plaintiff defines the class as (a) all individuals with Illinois addresses, (b) who were sent a letter by defendant referring to its web site, (c) which letter was sent at any time during a  period beginning one year prior to the filing of this action and ending 20 days after the filing of this action. Plaintiff further requests that Edelman, Combs, Latturner & Goodwin, LLC and Consumer Protection Law Center, Ltd., be appointed counsel for the class. In support of this motion, plaintiff states: NATURE OF THE CASE 1.   This case concerns the legality of a fee Chase Receivables charges consumers to  pay by credit card. Case: 1:14-cv-08198 Document #: 4 Filed: 10/20/14 Page 1 of 6 PageID #:15   2 2.   Chase Receivables is engaged in the business of a collection agency, collecting allegedly defaulted accounts srcinally owed to others. Chase Receivables regularly uses the mails and telephones to collect consumer debts originally owed to others. Defendant Chase Receivables is a “debt collector” as defined in the FDCPA. 3.   On or about September 8, 2014, plaintiff received a form collection letter from Chase Receivables. (Exhibit A.) The letter invites the consumer to pay online or by phone. If the consumer attempts to pay on-line, the website states there is a $14.95 fee for paying by credit card. (Exhibit B). No such fee may be charged in Illinois. Plaintiff alleges that the letter therefore violates 15 U.S.C. §§ 1692e, 1692e(2), 1692e(10), 1692f, and 1692f(1). CLASS CERTIFICATION REQUIREMENTS 4.   Numerosity:  Fed.R.Civ.P. 23(a)(1) requires that the class be “so numerous that  joinder of all members is impracticable.” It is not necessary for plaintiff to specify the exact number of class members; reasonable estimates and common-sense assumptions are sufficient.  Driver v. AppleIllinois LLC  , 265 F.R.D. 293, 300 (N.D. Ill. 2010). On information and belief, the number of class members exceeds the approximately 40 that is generally considered to satisfy the numerosity requirement.  Hale v. AFNI  , Inc., 264 F.R.D. 402, 404-406 (N.D. Ill. 2009), citing Swanson v. American Consumer Industries, Inc. , 415 F.2d 1326, 1333 (7th Cir. 1969).   5.   In the present case, it is reasonable to infer that the class is so numerous that  joinder of all members is not practicable from Chase Receivables’ standard practice of charging a fee to make a payment by credit card, as well as the fact that Chase Receivables regularly  purchases and collects on large portfolios of consumer credit debt.   Case: 1:14-cv-08198 Document #: 4 Filed: 10/20/14 Page 2 of 6 PageID #:16   3 6.   Commonality and predominance:  Fed.R.Civ.P. 23(a)(2) requires that there be a common question of law or   fact. Rule 23(b)(3) requires that the questions of law or fact common to all members of the class predominate over questions pertaining to individual members. 7.   There are questions of law and fact common to the Plaintiff class, which common issues predominate over any issues involving only individual class members. The principal issues are whether Chase Receivables’ practice of charging a fee to pay by credit card violates 15 U.S.C. §§ 1692e, 1692e(2), 1692e(10), 1692f and 1692f(1).   8.   Since whether a debt collector’s conduct violates the FDCPA is judged objectively, from the standpoint of an “unsophisticated consumer,” Turner v. J.V.D.B. &  Associates, Inc. , 330 F.3d 991, 995 (7th Cir. 2003), numerous FDCPA class actions involving allegations that form collection letters are unfair and deceptive have been certified.  Hale v.  AFNI, Inc. , 264 F.R.D. 402 (N.D. Ill. 2009); Wahl v. Midland Credit Management, Inc. , 243 F.R.D. 291 (N.D. Ill. 2007);  Hernandez v. Midland Credit Management, Inc. , 236 F.R.D. 406 (N.D. Ill. 2006);  Miller v. McCalla, Raymer, Padrick, Cobb, Nichols & Clark LLC  , 198 F.R.D. 503 (N.D. Ill. 2001);  Macarz v. Transworld Systems, Inc. , 193 F.R.D. 46 (D.Conn. 2000); Vines v. Sands , 188 F.R.D. 302 (N.D. Ill. 1999).   9.   Typicality:  Fed.R.Civ.P. 23(a)(3) requires that the claims of a named plaintiff be typical of the claims of the class. Keele v. Wexler  , 149 F.3d 589, 595 (7th Cir. 1998), held that “[a] plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” (Citation and internal quotation marks omitted.)   10.   Here, Plaintiff’s claim is typical of the claims of the class members. All are  based on the same factual and legal theories.   Case: 1:14-cv-08198 Document #: 4 Filed: 10/20/14 Page 3 of 6 PageID #:17   4 11.   Adequacy of representation: Rule 23(a)(4) requires that a named plaintiff  provide fair and adequate protection for the interests of the class. That protection involves two factors: (a) a plaintiff’s attorney must be qualified, experienced, and generally able to conduct the proposed litigation; and (b) a plaintiff must not have interests antagonistic to those of the class.  Hale , supra , 264 F.R.D. at 406.   12.   Plaintiff will fairly and adequately represent the class members. Plaintiff has retained counsel experienced in class actions and collection abuse litigation. Counsels’ qualification are set forth in Exhibits C and D.   13.   Superiority:  Rule 23(b)(3) requires that a class action be superior to other available means of resolving the dispute.  Hale , supra , 264 F.R.D. at 407, noted that “the Seventh Circuit has held that class actions are especially appropriate for resolving FDCPA claims. See Crawford v. Equifax Payment Servs., Inc. , 201 F.3d 877, 880 (7th Cir. 2000);  Randolph , [ supra , 254 F.R.D. at 520]. Where, as here, the defendant has ‘engaged in standardized conduct by sending form letters to many consumers, and each individual consumer's claim would likely be too small to vindicate through an individual suit,’ a class action is the most efficient, effective way to proceed. Quiroz , [ supra , 252 F.R.D. at 444]; see also  Mace v. Van Ru Credit Corp. , 109 F.3d 338, 344 (7th Cir. 1997).”   14.    Randolph  further held that “[a] class action is superior where potential damages may be too insignificant to provide class members with incentive to pursue a claim individually.... the Seventh Circuit has noted that although the FDCPA allows for individual recoveries, this assumes that the plaintiff is aware of his or her rights, willing to be subjected to litigation and able to find an attorney to take the case.  Mace , [ supra , 109 F.3d at 344]. ‘These are considerations that cannot be dismissed lightly in assessing whether a class action or a series of Case: 1:14-cv-08198 Document #: 4 Filed: 10/20/14 Page 4 of 6 PageID #:18
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