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Bassett v. Credit Bureau Services, Inc.

United States District Court, D. Nebraska

January 4, 2019

KELLY M. BASSETT, individually and as heir of James M. Bassett, on behalf of herself and all other similarly situated; Plaintiff,
v.
CREDIT BUREAU SERVICES, INC., and C. J. TIGHE, Defendants.

          MEMORANDUM AND ORDER

          Joseph F. Bataillon Senior United States District Judge.

         This 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.

         I. BACKGROUND

         The 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.

         The 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 of certification.

         On 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.

         The 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.[1] 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.[2] 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.[3]

         II. FACTS

         Some 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.

         The 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.

         CBS 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.

         Defendant 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 ...


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