Opinion
00 C 3825.
September 7, 2000.
MEMORANDUM AND ORDER
This matter comes before this court on: (1) Defendant Norman P. Wexler's ("Wexler") Motion to Dismiss the Complaint filed by Plaintiff Yvette Barajas ("Barajas"), pursuant to Federal Rule of Civil Procedure 12(b)(6); and (2) Plaintiff Barajas' Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23. For the reasons that follow, the Motion to Dismiss is DENIED and the Motion for Class Certification is GRANTED.
BACKGROUND
The facts set forth in the Background section are taken from Barajas' Complaint.
On or about February 4, 2000, Wexler filed suit in the Circuit Court of Cook County against Barajas on behalf of Sam's Club under the Illinois Bad Check Statute, 720 ILCS 5/17-1a (1998). The claim arose from a $68.22 bad check written by Barajas to Sam's Club. The complaint sought recovery in the amount of $897.88. This amount included $68.22 in actual damages for the alleged bad check, $600.00 in attorney's fees, and $204.66 in treble damages pursuant to 720 ILCS 5/17-1a (1998).
On February 11, 2000, Wexler sent a form letter to Barajas (" the February Letter") informing her of the lawsuit and seeking to recover the amount owed to Sam's Club. The February Letter indicated that the "Amount Due" totaled $1,000.88.
Although not included in the Complaint, a judgment was entered against Barajas in the Circuit Court of Cook County for $ 622.88. (Wexler's Reply Brief in Support of Defendant's Motion to Dismiss, Ex. 4).
On June 23, 2000, Barajas filed the instant action alleging Wexler violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et. seq., by: (1) maintaining a policy of seeking to recover more than $350.00 in attorney fees without submitting proof of actual time spent on the lawsuit; (2) misrepresenting the amount and legal status of the debt; and (3) using unfair and unconscionable means in attempting to collect an amount not permitted by law. Barajas also sought to certify a class action against Wexler pursuant to Federal Rule of Civil Procedure 23.
1. Recovery of Attorney Fees
The Complaint alleges that Wexler's policy was to seek recovery of more than $350.00 in attorney's fees without submitting proof of the actual time spent on the case. The February Letter did not indicate the actual time Wexler spent on the matter. According to Barajas, it was Wexler's policy to send letters such as the February Letter, prior to the entry of a judgment in the matter.
2. Misrepresentation of the Amount and Legal Status of the Debt
The Complaint alleges that Barajas is a consumer within the meaning of the FDCPA. Wexler regularly sought to collect money owed to companies similar to Sam's Club and was thus a debt collector within the meaning of the FDCPA.
The February Letter states that the "Amount Due" was $1,000.88, an amount that Barajas contends includes both attorney fees and statutory damages under 720 ILCS 5/17-1a (1998). Barajas asserts that no judgment had been entered against her on the date the February Letter was sent, and therefore, the "Amount Due" listed in the February Letter was incorrect.
3. Unfair Practices
Barajas alleges that Wexler's actions violated section 1692f of the FDCPA by attempting to collect an amount not permitted by law to settle the claim filed against Barajas.
4. Class Action
Barajas also seeks to certify this suit as a class action pursuant to Federal Rule of Civil Procedure 23 alleging violations of the FDCPA. Barajas seeks to certify a class including all persons residing in Illinois at the time they were sent one or more collection letters of the type sent to Barajas in connection with a debt owed to Sam's Club, and which were not returned by the Postal Service on or after July 1, 1999. In requesting class certification, Barajas contends that it is Wexler's policy and practice to seek recovery of unauthorized attorney fees and treble damages through the use of form letters.
STANDARD OF REVIEW
In ruling on a motion to dismiss pursuant to Federal Rule of Procedure 12(b)(6), the court must assume the truth of all facts alleged in the complaint, construing allegations liberally and viewing them in the light most favorable to the plaintiff. See, e.g., McMath v. City of Gary, 976 F.2d 1026, 1031 (7th Cir. 1992); Gillman v. Burlington N. R.R. Co., 878 F.2d 1020, 1022 (7th Cir. 1989). Dismissal is properly granted only if it is clear that no set of facts which the plaintiff could prove consistent with the pleadings would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kunik v. Racine County, Wis., 946 F.2d 1574, 1579 (7th Cir. 1991) (citing Hishon v. King Spalding, 467 U.S. 69, 73 (1984)).
The court will accept all well-pled factual allegations in the complaint as true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2 (1977). In addition, the court will construe the complaint liberally and will view the allegations in the light most favorable to the non-moving party. Craigs, Inc. v. General Electric Capital Corp., 12 F.3d 686, 688 (7th Cir. 1993). However, the court is neither bound by the plaintiff's legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiff's claims. Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir. 1992).
In determining whether to certify a class action, Rule 23 and the cases interpreting this Rule give this court broad discretion. Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D.Ill. 1986). In ruling on a motion for class certification, a court should accept the plaintiff's allegations in support of class certification as true without considering the merits of the case. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993); Riordan, 113 F.R.D. at 62 (citing Eisen v. Carlisle Jacquelin, 417 U.S. 156 (1974)). The party requesting class certification has the burden of showing that the four requirements of Rule 23 are satisfied. Retired Chicago Police Ass'n, 7 F.3d at 596.
ANALYSIS
I. Motion to Dismiss
Wexler argues that the Complaint should be dismissed because: (1) Barajas failed to plead sufficient facts to show that she is entitled to relief under the FDCPA; (2) Wexler's February 11, 2000 collection letter complied with the requirements of 720 ILCS 5/17-1a (1998), the Illinois Bad Check Statute, and as such did not violate the FDCPA; (3) Barajas' claim that the request for attorney fees was improper is unfounded and should have been resolved in the case filed against her in Illinois state court; and (4) Barajas' claim does not further the remedial goals of the FDCPA. The Court will address each of these contentions in turn.
A. Barajas' Claims State A Valid Cause Of Action Under The FDCPA.
The FDCPA was enacted in part "to eliminate abusive debt collection practices." 15 U.S.C. § 1692e (1994). Under the FDCPA, a debt collector is defined as "any person who uses any instrumentality of interstate commerce or mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6) (1994).
The Complaint here alleges that Wexler is a debt collector within the meaning of the FDCPA because Wexler regularly sought to collect money owed to others using the mails. Under the FDCPA, a dishonored check constitutes a debt, Bass v. Stopler, 111 F.3d 1322, 1324 (7th Cir. 1997), so the actions of Wexler in pursuing the claim against Barajas are governed by the FDCPA.
The FDCPA prohibits "any false, deceptive, or misleading representation or means in connection with the collection of any debt [including] . . . [t]he false representation of the character, amount, or legal status of any debt." 15 U.S.C. § 1692e (1994). Section 1692f(1) also prohibits "[t]he collection of any amount (including any interest, fee, charges, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. . . ." 15 U.S.C. § 1692f(1) (1994).
Here, the Complaint alleges that Wexler sought recovery of an "Amount Due" of $1,000.88 (an amount that included treble damages) in the February Letter sent to Barajas, though the amount of the bad check was only $68.22. The Complaint contends that since no judgment had been entered against Barajas when the February Letter was sent, the "Amount Due" was improper under Illinois law. This Court finds that the "Amount Due" listed was incorrect and thus was in violation of the FDCPA. Because the FDCPA prohibits the collection of any amount unless authorized by agreement or permitted by law, Barajas' Complaint sufficiently pleads a cause of action under the FDCPA and the Federal Rules of Civil Procedure.
Under the Federal Rules of Civil Procedure 8(a), a complaint must set forth "a short, plain statement of the claim showing that the pleader is entitled to relief."
B. Wexler's February Letter Violated The FDCPA Because The Amount Requested In Wexler's Letter Was Not Appropriate Under The Illinois Bad Check Statute.
For purposes of determining whether a debt collector has violated the FDCPA, the Seventh Circuit has adopted the "unsophisticated consumer" standard. Avila v. Rubin, 84 F.3d 222, 227 (7th Cir. 1996). This standard has been described as "a simpler and less confusing formulation of a standard designed to protect those of below-average sophistication or intelligence." Id.
The amount requested in the February Letter was not appropriate under the Illinois Bad Check Statute. Under Illinois law, a person who issued a check in violation of Section 17-1(B)(d), following written demand by the debt collector, "shall be liable to the payee for, in addition to the amount owing upon such a check or order, damages of treble the amount so owing, but in no case less than $100 nor more than $1,500, plus attorney fees and court costs." 720 ILCS 5/17-1a (1998). Under the Illinois Bad Check Statute, the plaintiff must provide written notice to the defendant that "prior to the hearing of any action . . . the defendant may tender to the plaintiff and the plaintiff shall accept as satisfaction of the claim, an amount of money equal to the sum of the amount of the check and the incurred court costs, and service and attorney fees," but the Illinois statute does not specifically permit the collection of treble damages absent a hearing on the claim. Id.
In Blum v. Fisher and Fisher, the plaintiff alleged that a debt collection letter from the defendant debt collector violated section 1692e(2) by misrepresenting the legal status of a debt owed by the plaintiff. 961 F. Supp. 1218, 1225 (N.D.Ill. 1997). The plaintiff alleged that a letter sent by the defendant stated the plaintiff owed attorney fees before the defendant was legally entitled to receive the fees. Id. The court found that the collection letter "clearly states, in the present tense, that plaintiff owes attorney's fees despite the fact that [attorney's] fees are only collectible pursuant to a final judgment in favor of the [creditor] which has not yet occurred." Id. at 1226. The court held that the letter sent to the plaintiff could confuse an unsophisticated consumer to believe that attorney's fees have already been assessed against him when in fact they were not incurred until an Illinois state court rendered a judgment against the plaintiff/debtor. Id. As a result, the court found summary judgment for the defendant inappropriate. Id.
Similarly, in Ditty v. Checkrite, the plaintiff alleged violations of the FDCPA where the defendant sought to settle a claim against the plaintiff for passing a bad check and requested the amount of the bad check in addition to a $15.00 service charge. 973 F. Supp. 1320, 1328 (D.Utah 1997).
The court found that since the collection of the service charge was permitted under the state law, the defendant had not violated the FDCPA by attempting to collect the fee. Id. However, the letters sent to the plaintiff also requested amounts ranging from $73.00 to $83.00 as "Legal Consideration for Covenant not to Sue." Id. at 1325. The "consideration" requested was not permitted under the state law, and as a result, the court found the defendant to have violated section 1692 of the FDCPA. Id. at 1328.
Here, the "Amount Due" requested by Wexler included attorney fees which are permissible under Illinois law. The Illinois Bad Check Statute allows a plaintiff to accept as satisfaction of a claim, "an amount of money equal to the sum of the amount of the check and the incurred court costs, and service and attorney fees." 720 ILCS 5/17-1a (1998).
However, the inclusion of treble damages in the "Amount Due," similar to the inclusion of fees for the "Legal Consideration for Covenant not to Sue," was not provided for under Illinois law, and as such, constituted a violation of section 1692f of the FDCPA. The February Letter indicated that the "Amount Due" was $1,000.88 although the complaint filed against Barajas sought recovery of $68.22 in actual damages, $600.00 in attorney fees, and $204.66 as a penalty under 720 ILCS 5/17-1a (1998). The $1,000.88 "Amount Due" appears to include treble damages which are not permitted under Illinois law absent a hearing on the claim. 720 ILCS 5/17-1a (1998). Thus, based on Barajas' allegations, Wexler misrepresented the legal status of the debt by including treble damages in the "Amount Due" and thus may be liable under the FDCPA.
Although Barajas may have determined the amount owed prior to the hearing by examining the complaint filed against her, under the unsophisticated consumer standard and in accordance with the congressional intent to prevent the abuse of debtors, Wexler should have more clearly advised Barajas of her rights pertaining to the debt in the February Letter. Although the February Letter sent to Barajas was in a sense a follow-up letter to the complaint, an unsophisticated consumer would not likely know the workings of the Illinois statute as to be able to determine what amounts were owed at that point in time. See Fisher, 961 F. Supp. at 1226 (holding that summary judgment in favor of the defendant debt collector was improper where the defendant sent the plaintiff a letter stating that the plaintiff currently owed fees that were only collectible pursuant to a final judgment which had not yet occurred since the misrepresentation would likely mislead an unsophisticated consumer).
Wexler asserts that another letter was sent on September 8, 1999 via certified mail to Barajas explaining her rights under Illinois law. (Wexler's Reply Brief in Support of Defendant's Motion to Dismiss). This letter was not attached to Barajas' Complaint and cannot be considered for the purposes of Wexler's Motion to Dismiss pursuant to Federal Rule 12(b)(6).
However, with respect to the disclosure requirements of the FDCPA, the Fourth Circuit has held that follow-up letters must also comply with the FDCPA because enforcing the disclosure requirements in follow-up letters was found to further the congressional purpose of preventing the abuse of debtors. See Carroll v. Abramson, 961 F.3d 459, 461 (4th Cir. 1992); but see Pressley v. Capital Credit Collection Serv., Inc, 760 F.2d 922, 925 (9th Cir. 1985) (holding that follow-up notices did not need to comply with the disclosure requirements). Since consumers sometimes do not receive first notices, follow-up letters may be a debtor's first warning regarding the debt. Carroll, 961 F.3d at 461. Consequently, the "missing letter" and its explanation of Barajas' rights with respect to the alleged debt may not render Barajas' claim invalid under the unsophisticated consumer standard.
As such, this Court finds that Barajas has alleged sufficient facts regarding the mischaracterization of the amount owed to state a claim under the FDCPA.
C. Wexler Did Not Violate The FDCPA By Including Attorney Fees In The "Amount Due" Without Including Proof of the Time Spent of the Case.
Barajas' allegation that Wexler misrepresented the amount due by including attorney fees absent proof of the number of hours spent on the case is without merit. The collection of a fee is lawful under section 1692f(1) if the fee is "permitted by law." West v. Costen, 558 F. Supp. 564, 581 (W.D. Va. 1983). If a communication to a debtor does not demand more than the debt collector is legally entitled to receive, there is no violation of section 1692f(1). Davis v. Commercial Check Control, 1999 WL 89556, at *8 (N.D.Ill. Feb. 16, 1999).
The Illinois Bad Check Statute allows for the imposition of attorney fees, but does not however, require the debt collector to specify how the amount of the fee was determined. The Illinois Bad Check Statute allows a plaintiff to accept as satisfaction of a claim, "an amount of money equal to the sum of the amount of the check and the incurred court costs, and service and attorney fees." 720 ILCS 5/17-1a (1998). It does not place any restriction on the amount of the fees that may be collected nor does it require any documentation be provided to the debtor prior to requesting the fees.
Because Wexler was "permitted by law" to collect attorney fees prior to a hearing on the claim if the appropriate written demand was made, Wexler did not violate the FDCPA by including attorney fees in the amount owed indicated in the February Letter to Barajas. Thus, to the extent that the February Letter sought collection of attorney fees, it sought an appropriate amount as provided by the Illinois Bad Check Statute. Consequently, this Court finds that Barajas has not stated a valid claim under the FDCPA with respect to Wexler's request for attorney fees.
Although it is not necessary to the determination that the request for attorney fees was proper under Illinois law nor is it properly considered under a Rule 12(b)(6) motion to dismiss, it is worth noting that the Illinois court did award attorney fees to the plaintiff.
D. Barajas' Claims Are Consistent With The Goals Of The FDCPA.
The FDCPA was enacted to protect consumers from abusive, deceptive, and unfair debt collection practices. Bass, 111 F.3d at 1324; Mace v. VanRu Credit Corp., 109 F.3d 338, 341 (7th Cir. 1997). Although Wexler contends that it would be "an abuse of the FDCPA and the legal system" to allow Barajas to proceed with her claim, this argument is unpersuasive.
While the Seventh Circuit has warned against the abuse of the FDCPA, Bailey v. Security Nat'l Servicing Corp., 154 F.3d 384, 388 (7th Cir. 1998), Barajas has stated a valid cause of action under the statute. Since the Barajas' complaint seeks to recover based on an alleged misrepresentation of the amount legally due resulting from a dishonored check, her claims fall within the realm of activities governed by the FDCPA. Thus, Barajas claim does not constitute an abuse of the FDCPA. Consequently, because Barajas has alleged sufficient facts to show that Wexler has violated the FDCPA, this Court denies Wexler's Motion to Dismiss.
II. Motion for Class Certification
To certify a class action, a court must find that: (A) the class is so numerous that joinder of all members is impracticable; (B) there are questions of law or fact common to the class; (C) the claims or defenses of the class representatives are typical of the claims or defenses of the other class members; and (D) the class representatives are able to represent the interests of the class fairly and adequately. Harrison v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993); Fed.R.Civ.P. 23(a). Failure to meet any element precludes certification of the class. Retired Chicago Police Ass'n, 7 F.3d at 596. The Court will discuss each of these requirements in turn.
A. Numerosity
Rule 23(a)(1) provides that class certification is appropriate where the class is "so numerous that joinder of all members is impracticable." F.R.C.P. 23(a)(1). The exact size and identification of the class members need not be established for a court to grant certification, but rather the requirement of numerosity may be satisfied based on common sense. Wells v. McDonough, N.D.C. Check Servs., 1998 WL 160876, at *2 (N.D.Ill. March 31, 1998); Brewer v. Friedman, 152 F.R.D. 142, 143 (N.D. 1993).
In Wells, the court determined that the numerosity requirement had been satisfied where the plaintiff alleged that standard form collection letters were used and the standard business practice of the defendant in mailing the form letters was improper under the FDCPA. Wells, 1998 WL 160876, at *2. The court reasoned that because the defendant was a large company in the business of collecting debts, and regularly sent standard, pre-printed letters, common sense supported the conclusion that joinder of all members of the affected class was impossible. Id.
Here, Barajas alleges that Wexler sent out standard form letters requesting amounts that the company was not currently legally entitled to collect in violation of the FDCPA. Similar to the defendant in Wells, Barajas alleges that Wexler is a major debt collector, and Wexler admits that between twenty and forty Illinois residents meet the class definition. Both common sense and Wexler's admission regarding the number of class members support the conclusion that the numerosity requirement is satisfied. Consequently, this Court finds that the requirement of numerosity under Federal Rule of Civil Procedure 23(a)(1) has been met.
B. Adequacy of Representation
To satisfy the requirement of the adequacy of representation, the party seeking to certify the class must show: (1) the plaintiff's attorney is qualified, experienced, and generally able to conduct the proposed litigation; and (2) the plaintiff does not have any interests antagonistic to those of the proposed class. Chandler v. Southwest Jeep Eagle, Inc., 162 F.R.D. 302, 309 (N.D.Ill. 1998). The underlying purpose behind these requirements is to uncover incompetent or ineffective class counsel as well as conflicts between the interests of the class representative and those of the remaining class members. Rosario v. Livaditis, 963 F.2d 1013, 1019 (7th Cir. 1992).
I. Adequacy of Counsel
Federal Rule of Civil Procedure 23(a)(4) requires that the counsel for the named plaintiff be competent, experienced, qualified, and able to vigorously conduct the proposed litigation. Chandler v. Southwest Jeep Eagle, Inc., 162 F.R.D. 302, 309 (N.D.Ill. 1998); Gammon v. GC Servs. Ltd. Partnership, 162 F.R.D. 313, 317 (N.D.Ill. 1995). The class counsel owes a "duty of the finest loyalty" to class members. Wagner v. Lehman Bros. Kuhn Loeb, Inc., 646 F. Supp. 643, 661 (N.D. Ill. 1986).
It appears from the affidavits supplied by counsel for Barajas that the attorneys representing the class are competent, experienced and qualified to conduct the litigation. Wexler has not disputed the adequacy of Barajas' counsel to represent the interests of the class. Consequently, this Court finds that counsel for Barajas satisfies the requirements of Federal Rule of Civil Procedure 23(a)(4).
II. Adequacy of Chosen Plaintiff
The burden of demonstrating that the chosen plaintiff is an adequate representative is "not a heavy one." Ries v. Humana Health Plan, Inc., 1997 WL 158337, at *9 (N.D.Ill. March 31, 1997). To determine whether the adequacy requirement has been satisfied, a court may consider the honesty and trustworthiness of the named plaintiff. Savino v. Computer Credit Inc., 164 F.3d 81, 87 (2d Cir. 1998).
Wexler contends that Barajas is not an adequate representative for several reasons. First, Barajas admitted during her deposition that she has written at least eight bad checks in the last five years although the writing of bad checks is prohibited under Illinois law. Wexler also claims that Barajas' honesty can be questioned since she testified that although she knew of the lawsuit against her by Sam's Club, she failed to protect her interests.
In Nance v. Lawrence Friedman P.C., the court found the chosen plaintiff representative to be an adequate class representative even though she had previously pled guilty of a misdemeanor for writing a bad check. 1999 WL 966444, at *1 (N.D. Ill Oct. 19, 1999). After the plaintiff paid the amount of the bad check and did forty hours of community service, her plea was vacated. Because of the relatively minor nature of the crime, the court did not hold that the plaintiff's previous indiscretion prohibited her from adequately representing the class. Id. at *2.
Here, this Court does not consider Barajas' admission that she wrote eight bad checks over the last five years to be fatal to the satisfaction of the requirement of adequacy of representation. Although Barajas admitted to writing bad checks, she also asserted that after she realized she had written a bad check, she "put money in [her] account so [her] check would clear." Moreover, due to the definition of the class, many of the debts that Wexler sought to collect on behalf of Sam's Club likely arose out of customers writing bad checks to Sam's Club. Furthermore, unlike the plaintiff in Nance, Barajas has not been charged with any criminal wrongdoing in bouncing the eight checks. Likewise, the default judgment against Barajas also does not prevent her from adequately representing the class because it is also likely that a number of the proposed class members also had a default judgment entered against them based on similar debts. Consequently, Barajas' past behavior does not prevent her from adequately representing the class under these circumstances, and this Court finds that Barajas satisfies the requirement of adequate representation under Federal Rule of Civil Procedure 23(a)(4).
C. Typicality
To satisfy the requirement of typicality, the "claims or defenses of the representative [must be] typical of the claims or defenses of the class." F.R.C.P. 23(a)(3). The requirement of typicality is met if the representative class members' claims arise from the same legal theory, practice, or conduct. Rosario, 963 F.2d at 1018. A plaintiff's claim is typical if it arises out of the same course of conduct giving rise to the claims of other class members and his or her claims are based on the same legal theory. DeLaFuente v. Stokely — Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). Factual distinctions do not prevent a finding of typicality. Id.
Here, Barajas has alleged that she was subjected to the same type of form letter that was sent to the other class members. The form letter sent to Barajas, like those sent to the other members of the class, allegedly sought unauthorized attorney fees and treble damages. Barajas alleges that in sending these form letters, it was Wexler's practice to seek unauthorized attorney fees and treble damages. The conduct and practices at issue in Barajas' claim against Wexler are similar to those of the proposed class members. Consequently, Barajas' claims appear to be typical of the claims of the other class members.
Wexler argues that since Barajas was sent an earlier letter advising her of her rights with respect to the debt, her claims are not typical of the class of individuals who received the form letter.
Although Wexler contends that in her deposition, Barajas "concedes to having received the 'missing letter,'" Barajas only admitted that she believed that the letter was included in the materials served on her with the Sam's Club Complaint, but she did not specifically recall receiving the letter. When questioned as to whether she signed for the certified copy of the letter, Barajas indicated that she recognized the signature on the receipt as that of her brother who lived with her at the time. She was not asked however, whether she received the letter from her brother.
Regardless of whether there is a "missing document" in Barajas' Complaint, the issue to be resolved is whether the mailing of form letters seeking an allegedly improper amount due is in violation of the FDCPA. Although the September Letter sent to Barajas explains her rights pertaining to her debt to Sam's Club, the February Letter only states an "Amount Due" which appears to include attorney fees and treble damages without explaining Barajas' rights under the Illinois Bad Check statute. Regardless of the content of the first letter, the second letter may be perceived as misleading and in violation of the FDCPA under the unsophisticated consumer standard if it is found to misrepresent the nature and legal status of the debt. It is Barajas' claims with respect to the alleged impropriety of the February Letter that are typical of the class. Consequently, this Court finds that Barajas has satisfied the requirement of typicality.
D. Commonality and Predominance
Federal Rule of Civil Procedure 23(a)(2) requires a common question of law or fact to warrant class certification. To satisfy the commonality requirement, the plaintiff need only show that at least one common question exists. Sledge v. Sands, 182 F.R.D. 255, 258 (N.D.Ill. 998).
Here, the question of law or fact common to the class is whether Wexler's actions in sending the form letter seeking to recover allegedly unauthorized attorney fees and treble damages were in violation of the FDCPA. By definition, all of the proposed class members received a collection letter that allegedly violated the FDCPA. The issue of whether Wexler's actions in seeking attorney fees and treble damages mischaracterized the character and legal status of the amount of the recipients' debts revolves around Wexler's standardized conduct in attempting to recover amounts allegedly owed by the recipients of the letters. Consequently, the requirement of commonality under Federal Rule of Civil Procedure 23(a)(2) is satisfied.
E. Class Action is the Superior Method of Adjudicating this Dispute
Federal Rule of Civil Procedure 23(b)(3) provides that for a class to be certified, a class action must be "superior to other available methods for the fair and efficient adjudication of the controversy." Class actions are often an appropriate solution to overcoming the problems of small recoveries that do not create an incentive for an individual to file suit to enforce his or her rights. Mace v. Van Ru Credit Corp., 109 F.3d 338 (7th Cir. 1997). Moreover, the FDCPA specifically allows for a class action and provides a special damages section for class action cases. 15 U.S.C. § 1692k(a)(2)(B).
In the present case, Wexler makes no argument that a class action is not the superior method for resolving this controversy. Due to the limited amount of recovery that is likely available to this class of plaintiffs under the FDCPA and because many potential class members are likely unaware that their rights were possibly violated by the collection letter, most plaintiffs would be unlikely to litigate. See Sledge, 182 F.R.D. at 259. Consequently, this Court finds that a class action is both appropriate and the superior method for resolving this controversy.
CONCLUSION
For the foregoing reasons, Defendant Wexler's Motion to Dismiss Plaintiff's Complaint [6-1] is DENIED, and Plaintiff Barajas' Motion for Class Certification [3-1] is GRANTED. It is so ordered.