Holt v. Wexler & Wexler
NOTICE OF PENDENCY OF CLASS ACTION
To: (i) all Illinois residents; (ii) who were mailed letters similar to Exhibit 1; (iii) on or after November 13, 1997 (one year prior to the filing of this action); (iv) in connection with attempts to collect debts owing from the purchase of goods for personal, family, or household use; (v) which letters were not returned by the Postal Service.
PLEASE READ THIS NOTICE CAREFULLY.
THIS IS NOT AN ATTEMPT TO COLLECT MONEY FROM YOU. THIS IS NOT A NOTICE OF A LAWSUIT AGAINST YOU. YOU MAY BENEFIT FROM READING THIS NOTICE.
Pursuant to Rule 23(c)(2) of the Federal Rules of Civil Procedure, you are hereby notified that a class action lawsuit is pending in this Court. You may be a member of the class.
WHAT THIS LAWSUIT IS ABOUT
Plaintiffs, Howard Holt and Janice Haye, brought this class action against defendant Norman P. Wexler ("Wexler") doing business as Wexler & Wexler to recover damages for violations of the federal Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. ("FDCPA").
In 1998, Wexler sent to plaintiffs Holt and Haye a collection demand in the form of Exhibit 1. Plaintiffs received it shortly thereafter. The letter was sent to plaintiffs in connection with a check issued to purchase goods for personal, family or household use.
Plaintiffs' complaint alleges that the collection letter (Exhibit 1) violates the FDCPA in the following manner: Wexler states in Exhibit 1 that "skip tracers may contact your references, your former employers, your relatives and your neighbors in an effort to gain information about your assets." Plaintiffs allege that this statement is deceptive and misleading because Wexler cannot legally contact the recipient's former employers, relatives and neighbors, and that the only reason this threat is included is to harass and intimidate the recipient into payment. Wexler further states in Exhibit 1 that "Only by payment of this claim can your credit rating be rehabilitated as we will notify the credit reporting agencies to amend our adverse listing in your records when the claim has been paid or otherwise settled." Plaintiffs allege that this misleads the recipient into believing that Wexler can upgrade the recipient's credit profile. In fact, nothing that Wexler can do will erase a prior negative credit report or rehabilitate the recipient's credit rating.
Wexler denies that it violated any laws or did anything wrong, and claims it is not liable to plaintiffs or the class members.
THE COURT EXPRESSES NO VIEW AS TO THE MERITS OF ANY CLAIMS OR DEFENSES ASSERTED BY ANY PARTY TO THE COMPLAINT. NEITHER THE CERTIFICATION OF THE CLASS NOR THE SENDING OF THIS NOTICE SHOULD BE CONSTRUED AS AN INDICATION OF THE COURT'S VIEW AS TO THE MERITS OF THIS LITIGATION. THE SOLE PURPOSE OF THIS NOTICE IS TO INFORM YOU OF THE PENDENCY OF THE LITIGATION SO THAT YOU MAY MAKE APPROPRIATE DECISIONS AS TO STEPS YOU MAY WISH TO TAKE, IF ANY, IN RELATION TO THIS LAWSUIT.
On February 7, 2000, the Court determined that this action may be maintained as a class action on behalf of the class described above.
POTENTIAL RECOVERY
In an FDCPA class action, the maximum possible recovery is (i) any actual damages suffered by the class members and (ii) statutory damages, in such amount as the court shall assess, based on the culpability of the defendants' conduct and the amount of harm caused by the defendants. The statutory damages in a class action cannot in any event exceed the smaller of $500,000 or 1 percent of the defendants' net worth, which statutory damages must be divided among all the members of the class.
If these violations were established in an individual action, the debtor would have the right to recover a maximum of $1,000 statutory damages under the FDCPA, and any actual damages. Of course, you would only have these rights if you prevailed, which cannot be assured.
The plaintiff in an FDCPA lawsuit can also recover reasonable attorneys' fees and costs if the plaintiff prevails.
PLAINTIFFS' COUNSEL
The attorneys certified by the Court as counsel for the class are:
Daniel A. Edelman Cathleen M. Combs James O. Latturner Charles H. Lee EDELMAN, COMBS & LATTURNER 120 South LaSalle Street 18th Floor Chicago, IL 60603 312-739-4200
YOUR OPTIONS
You have the choice of remaining in, or excluding yourself from the class. Each choice has certain risks and consequences. You have the right to discuss your decision with class counsel or your own attorney.
1. If you stay in the class, you will be bound by the result of the lawsuit, whether that result is favorable or unfavorable. If favorable, you will receive a benefit in such amount as the Court determines.
2. As a class member you will be represented by class counsel. That representation by class counsel is entirely contingent -- that is, class counsel are paid only if they win the case and you need not pay them anything if they are not successful. You will not have to pay any money as a result of staying in the class, except possibly from any recovery to the class.
3. If you wish to remain in the class, you do not need to do anything.
4. If you exclude yourself from the class, you (a) will not be bound by any judgment or disposition of this case, (b) will retain any claims you may have against defendant and (c) will not share in any recovery awarded by the Court or under any settlement agreement. Any statute of limitations which may have stopped running on November 13, 1998, when this action was filed, will began running again upon your exclusion.
5. If you wish to exclude yourself, send Edelman, Combs & Latturner, at the address listed above, a letter containing the name and number of this case and stating that you wish to be excluded. The letter must be received on or before July 3, 2000. If you mail a request for exclusion, you bear the risk of any problem with the mails.
6. If you elect to be excluded from the class, you may file an individual action or intervene in this action. If you intend to choose this option, consult with class counsel or your own attorney prior to the expiration of the opt-out period. If you want your own lawyer to represent you in an individual case, the terms of such representation are a matter for you and your lawyer to negotiate.
7. You also have the right to file an appearance yourself or through an attorney or to ask that plaintiffs' counsel represent you as a named party plaintiff in this case.
CORRECT ADDRESS
If this Notice was sent to you at your current address, you do not have to do anything further to receive any further notices concerning this case. If it was forwarded by the postal service, or if it was otherwise sent to you at an address which is not current, you should immediately send a letter to Edelman, Combs & Latturner (above address) stating your past and current addresses.
AVAILABILITY OF FILED PLEADINGS
All papers filed in this case are available for you to inspect and copy at the office of the Clerk of the United States District Court for the Northern District of Illinois, 219 S. Dearborn, 20th Floor, Chicago, IL 60604, during regular business hours.
INQUIRIES
Any question you or your counsel have concerning this notice should be directed to Edelman, Combs & Latturner. Please include the case name and number, your name and your return address on any letters, not just the envelopes.
DO NOT ADDRESS ANY QUESTIONS ABOUT THE CASE TO THE CLERK OF THE COURT OR TO THE JUDGE. They are not permitted to answer your questions.
Dated: June 2, 2000 Michael W. Dobbins, Clerk of the Court
