District Court (Ind.) Certifies FDCPA Class Based on Purportedly Defective Debt Validation Letter; Says Individual Issues Did Not Predominate Over Whether Letters Were “Initial Communication”

In Fosnight v. Convergent Outsourcing, Inc., 2016 WL 317678, at *2-3 (S.D.Ind., 2016), Judge McKinney certified an FDCPA class action grounded on a purportedly defective debt validation letter.  The Court rejected the argument that individual issues predominated because questions might arise whether the debt validation letter was the initial communication.

Defendants primarily argue that individual issues of fact preclude a conclusion that the class is identifiable; in other words, there is no support for Plaintiff’s assertion that the class is easily identifiable, numerous enough that joinder is impractical, that his claims are typical of those of the putative class members, that common questions of law and fact exist (and predominate), or that Plaintiff is an adequate representative because his claims are so similar to those of a the putative class members. The argument is without merit. The claim Plaintiff raises in the Complaint is a simple one: Does the letter he received from Defendants violate § 1692g or § 1692f of the FDCPA? Section 1692g requires that, within 5 days of Defendant’s first communication to a consumer, Defendants had to provide the consumer with an effective validation notice, containing, among other disclosures “(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt or any portion thereof, is disputed, the debt collector will obtain verification of the debt.” 15 U.S.C. § 1692g(a)(4). Section 1692f prohibits a debt collector from using any unfair or unconscionable means to collect or attempt to collect a debt. 15 U.S.C. § 1692f(1). Plaintiff relies upon Defendant’s own contact records to evidence that at least 74 people in Indiana received the subject letter as the first written communication about the alleged debt. Robertson Decl., Ex. A. Although it is possible that Defendants provided the necessary information in an initial oral communication with a putative class member, they have provided no evidence that any such oral communication occurred with any of the individuals who received the subject letter. As such, although the class size may be narrowed by any further discovery, at this stage of the litigation, the Court concludes that Plaintiff’s criteria for identification of the class is sufficiently precise and objective to satisfy the requirements of Rule 23. Further, that same criteria has already identified at least 74 putative class members, which is sufficient to satisfy the numerosity requirement because joinder of 74 individuals would be impractical. Similarly, because the class definition uses the letter as the touchstone of potential liability under the FDCPA, Plaintiff’s claim is typical to those of similarly situated class members.  *3 With respect to commonality and typicality, Defendants claim that individual answers to multiple factual issues, such as whether or not each class member received the letter or whether or not the letter was in fact the initial communication with or to the consumer, defeat Plaintiff’s argument that common questions drive this litigation. Dkt. No. 28 at 10-12. As to receipt, it is presumed that the letter Defendants mailed was received by each individual to which it was addressed (Plaintiffs have already excluded individuals who were sent the letter, but for which an undeliverable notice was received back). See Bobbitt v. The Freeman Cos., 268 F.3d 535, 538 (7^th Cir. 2001) (stating that “the law presumes timely delivery of a properly addressed piece of mail”). Cf. Bartlett v. Heibl, 128 F.3d 497, 499 (7^th Cir. 1997) (stating that reading the letter is not an element of a violation of the FDCPA). And, again, with respect to whether or not the letter was the initial communication, Defendants’ have provided no other records of communication with these consumers. At this stage of the litigation, the Court will not engage in speculation as to whether or not any putative class member was contacted by Defendants by phone and given all of the required information. The Court concludes that Plaintiff’s claims are both common and typical to those of the class.