CHICAGO - A Chicago federal judge has turned aside, for now, an attempt to turn a dispute over a debt collection into a class action, saying the evidence supplied by plaintiffs in the case - a collection letter which allegedly violated federal law - is not enough to justify the request to expand the lawsuit to include others who may have received similar letters.

In a July 24 ruling, U.S. District Judge Joan B. Gottschallcourt denied plaintiff Daniel Hernandez’s attempt to certify his case under the federal Fair Debt Collection Practices Act case as a class action under Federal Rule of Civil Procedure 23, saying “going beyond the limited inquiry required and addressing the merits before class certification puts the cart before the horse because a motion to certify a class asks the court to decide at the earliest preliminary stage."

In 2015, defendant Midland Credit Management served Hernandez a letter on Oct. 5 through the Circuit Court of Cook County after sending him a summons for a debt collection lawsuit. The letter claimed that if he was unable to resolve the financial matter by exact payoff or by a reasonable payment plan, Hernandez would face judgment, as charges would continue to incur.

However, Hernandez alleged the debt form letter “ran afoul of several FDCPA prohibitions," noting “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." 

Hernandez argued for a class certification, emphasizing “under Illinois law, statutory court costs are not available before defendant obtains a judgment, so the October 5 letter falsely and misleadingly implied that defendant had a right to collect court costs when it sent the letter.”

Citing the 2011 decision Wal-Mart Stores, Inc. v Dukes, Judge Gottschall said in her opinion, since Hernandez is the party seeking certification, he “bears the burden to persuade the court by a preponderance of the evidence that his proposed class meets Rule 23’s certification requirements.”

Judge Gottschall added “as written, the class definition includes an amorphous group of people who received communications ‘similarly in the form of the October 5th Letter.’”  

“Nevertheless, the proposed class definition supplies no objective way to decide whether a communication is substantially similar to the October 5 letter, which can be found in its entirety in this record,” Judge Gottschall said. “Because plaintiff has failed to show that the proposed class’s composition is ascertainable using objective criteria, the court ... denies plaintiff’s motion to certify.”

A status conference regarding the case was scheduled for Aug. 2.

Hernandez is represented in the action by the Zamparo Law Group, of Hoffman Estates, and Francis & Mailman, of Philadelphia.

Midland is defended by the firm of Dykema Gossett, of Chicago. 

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Dykema Gossett PLLC Zamparo Law Group

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