United States District Court, D. Nebraska
KELLY M. BASSETT, individually and as heir of James M. Bassett, on behalf of herself and all other similarly situated; Plaintiff,
CREDIT BUREAU SERVICES, INC., and C. J. TIGHE, Defendants.
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
matter is before the Court on the plaintiff's motion for
certification of a class, Filing No. 49. This is a putative
class action for violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §1692
et seq., and the Nebraska Consumer Practices Act
(“NCPA”), Neb. Rev. Stat. § 59-1601, et
seq. The plaintiff challenges a collection letter sent
to her by defendants.
plaintiff seeks certification of a class defined as:
(i) all persons with addresses in Nebraska;
(ii) to whom Defendants sent a letter in the form of Exhibit
A (Filing No. 1-1);
(iii) in an attempt to collect a debt incurred for personal,
family or household purposes as shown by Defendants' or
the creditors' records;
(iv) allegedly due for a medical obligation.
time period for violations of the Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692 et seq.
(hereinafter “FDCPA”) is one year period prior to
the filing of this litigation, i.e., October 3,
2015, through the date of class certification. The time
period for violations of the Nebraska Consumer Protection Act
(“NCPA”), Neb. Rev. Stat. § 59-1601 et
seq. is four years prior to the filing of this
litigation, i.e., October 3, 2012, through the date
October 3, 2016, Plaintiff Kelly Bassett, individually and as
the heir of James Bassett, brought an action against the
defendants, alleging that the letter at issue is false or
misleading because it: (1) identified an appointment but did
not identify the location of the appointment; (b) identified
a Norfolk address, but also listed a P.O. Box in Fremont; and
(c) stated that defendants would proceed with collection
efforts if the appointment was not kept. She alleges the
letter was confusing.
defendants are opposed to class certification. They first
argue that a class should not be certified because the
plaintiff lacks Article III standing to pursue her
claims. Next, they argue the plaintiff cannot
satisfy Rule 23(b)(2) since the FDCPA does not provide for
injunctive relief and injunctive relief is the primary relief
that the plaintiff seeks. Finally, they argue that the plaintiff
cannot satisfy Rule 23(b)(3) because a particularized review
would be required to determine: (1) if the alleged violation
was material (e.g., if each member actually reviewed the
letter at issue); and (2) whether the debt was commercial or
consumer; and (3) whether a class member's claim may be
barred by a previously litigated class action.
facts are set forth in the court's earlier orders and
will be repeated only as necessary to this opinion. See,
e.g., Filing No. 11, Memorandum and Order; Filing No.
83, Memorandum and Order. The record shows the defendants
sent at least 9, 796 of the challenged standard debt
collection letters during the class periods defined in this
case. Filing No. 51-8, Ex. 4B, Deposition of C.J. Tighe
(“Tighe 30(b)(6) Dep.”) at 48-52 & Depo. Ex.
22. Over 4, 000 of those letters sought collection of an
allegedly unpaid medical account. Id. at 4.
Defendant Tighe owns and runs CBS. Id. at 46.
persons to whom the challenged letter was sent are identified
within the records of defendant Credit Bureau Services.
Id. at 41-42. Credit Bureau Services' records
also identify the creditor requesting the letter.
Id. Various form letters similar to that at issue
herein (which is identified within Credit Bureau
Services' record system as B-10) are printed from Credit
Bureau Services' computer system, which inserts names,
addresses and amounts alleged due. Id. at 34-35.
Credit Bureau Services' computer system documents every
consumer who is sent the letter at issue. Filing No. 51-4,
Ex. 3A, deposition of C.J. Tighe (“Tighe Dep.”)
at 59. When Credit Bureau Services sends a letter, it is
electronically noted and documented in a consumer's
electronic debtor profile. Id. at 59-60. Credit
Bureau Services' debtor profile and collection notes for
the Bassetts shows that Credit Bureau Services sent the
collection letter at issue to the them. Id. at 51;
Filing No. 52-1, Dep. Ex. 19, Collection Notes. The computer
inserts the consumer-specific information into the collection
letter. Filing No. 51-4, Ex. 3A, Tighe Dep. at 53-54; Filing
No. 51-5, Dep. Ex. 5.
routinely identifies the names, addresses, and payment
history of the debtors within its computer system and
provides reports with that information to clients such as
General Radiology. Filing No. 51-7, Ex. 4A, Deposition of
Darcy Kreikemeier (“Kreikemeier Dep.”) at 50-51.
The evidence also shows that the medical debt collection
accounts are personal accounts, not business accounts.
Id. at 43. They are turned over for collection by
medical services providers only in the names of individuals.
Id. at 43-44. The fact that CBS sent a letter
similar or identical to the letter challenged here to a
consumer is noted in CBS's computer system in connection
with the consumer's electronic profile. See,
e.g., Filing No. 52-1, Ex. 4B, Dep. Ex. 19, Collection
Notes. Credit Bureau Services reports to creditors on a
monthly basis. Filing No. 51-7, Kreikemeier Dep. at 50.
C.J. Tighe, the president of Credit Bureau Services, was
personally involved in drafting the letter that Credit Bureau
Services sent to the Bassetts and other class members. Filing
No. 51-8, Ex. 4B, Tighe 30(b)(6) Dep. at 12-13. Parts of the
letter were rewritten in June of 2015 as a result of a prior
lawsuit. Id. at 12-13. Filing No. 51-8, Ex. 4B,
Tighe 30(b)(6) Dep. at 12-13. Defendant Tighe personally
rewrote the letter. Id. at 12-13. The ...