Debtor Class Certified in FDCPA Suit; Robocalls Reportedly Hid Identifying Info

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By Eleanor S. Tyler

A class is certified in litigation alleging that an automated call violated federal law by neither identifying the caller nor disclosing that it was seeking collections from debtors, according to an Oct. 26 opinion from a federal district court in Illinois (Pawelczak v. Financial Recovery Services Inc., N.D. Ill., No. 1:11-cv-02214, 10/26/12).

Named plaintiff Anna Pawelczak allegedly received the robocall message from debt collector Financial Recovery Services Inc. (FRS).

FDCPA Suit Filed
Pawelczak sued FRS for violating the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §1692 et seq.

During the course of discovery, Pawelczak learned that a contractor had made the robocalls on behalf of FRS, using numbers supplied by FRS, and that the contractor had made calls similar to the one she received to at least 1,000 debtors.

Pawelczak, an Illinois resident, amended her complaint to include class allegations for those debtors in the “847” and “224” area codes who got a call like Pawelczak's and listened to the entire message.

FRS, objecting to class certification, argued a variety of impediments to certification. FRS countered that the class was unidentifiable because it can only consist of debtors who got at least two calls from FRS and heard them both all the way to the end. FRS also contended that the statute of limitations had passed on calls to some of Pawelczak's proposed class.

Rule 23 Requisites Met
Judge Harry D. Leininweber of the U.S. District Court for the Northern District of Illinois certified the proposed class as compliant with Fed. R. Civ. P. 23.

The court rejected FRS's argument that class members had to have received “telephone calls” to invoke §1692d(6). Not only did FRS cite only one case from Florida to support its argument, but also the court noted that Congress's instructions accompanying the FDCPA state that “words importing the plural include the singular.”

Further, the court continued, cases in the Northern District of Illinois such as D.G. v. William W. Siegel & Assoc., 791 F.Supp.2d 622 (N.D. Ill. 2011), permit FDCPA claims based on a single phone call.

The court added that the class members did not have to hear the whole message to avail themselves of the FDCPA.

When a plaintiff seeks only statutory damages under the FDCPA, the penalty does not depend on whether the recipient was misled, the court said. Analogizing the failure to read a collection letter in Bartlet v. Heibl, 128 F.3d 497 (7th Cir. 1997), to the failure to listen to an entire recorded message, the court determined that the class was objectively identifiable, and found that class members did not need to demonstrate that they had heard the whole message to be damaged under the FDCPA.

The court easily concluded that the proposed class met the commonality and typicality requirements of Rule 23. Likewise, the court determined that Pawelczak and her counsel were adequate to represent the class.

Because the court rejected FRS's argument that each class member must have listened to the whole message to have an FDCPA claim, it also concluded that common issues predominated over individual ones.

Finally, the court concluded that Pawelczak's class allegations related back to her original complaint, based on the same violations by FRS, such that none of the proposed class members' claims were untimely.

Lead counsel for plaintiff were Daniel A. Edelman of Edelman, Combs, Latturner & Goodwin LLC in Chicago; and William F. Horn of the Law Office of William F. Horn in Fresh Meadows, N.Y.

Lead counsel for the defendant was David M. Schultz of Hinshaw & Culbertson in Chicago.

By Eleanor S. Tyler

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