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No Certification for 'Gerrymandered' FDCPA Class

Wednesday, March 27, 2013
A would-be class of debtors in Minnesota will not be certified after a federal court in Minnesota decided March 21 that the proposed class was 'gerrymandered' to maximize damages under the Fair Debt Collection Practices Act damages cap (Wenig v. Messerli & Kramer PA, D. Minn., No. 0:11-cv-03547-PJS-FLN, 3/21/13).

Sandra Wenig initiated a class action against Messerli & Kramer PA after receiving three letters attempting to collect a debt she owed to Capital One Bank (USA) NA that allegedly violated the FDCPA, 15 U.S.C. §1692 et seq.

She alleged that the first letter failed to inform her that she must dispute the debt in writing within 30 days of the letter. She also alleged that the third letter, which she received within that 30-day period but said that she had failed to resolve this obligation voluntarily, “overshadowed” the first.

Section 1692g(b) states that “[a]ny collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor.”

The U.S. District Court for the District of Minnesota granted Wenig's motion for partial summary judgment as to liability, while denying Messerli's cross-motion.

It did not, however, grant her motion for class certification, citing that the class definition arbitrarily limited the class to residents of a single county within Minnesota who owed debts to a single creditor.

The court concluded that such “gerrymandering” was done solely to evade the damages cap set forth in the FDCPA and would therefore only resolve a fraction of the possible claims. A larger class would decrease each class member's recovery, the court observed.

The court also identified an individual issue that precluded certification. In each case, the third letter sent cannot be considered to overshadow the first unless it was received within 30 days of the first. The court would have to consider the timing of the letters received by each individual plaintiff to determine whether they belonged to the class..

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