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Boucher v. Finance System of Green Bay, Inc.

United States District Court, E.D. Wisconsin

April 9, 2019

RYAN BOUCHER, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
v.
FINANCE SYSTEM OF GREEN BAY, INC., et al., Defendants.

          DECISION AND ORDER

          WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This Fair Debt Collection Practices Act (FDCPA) action is before the court on Plaintiffs' motion for class certification under Rule 23 of the Federal Rules of Civil Procedure. The case arises out of a form debt collection letter that Defendant Finance System of Green Bay (FSGB) sent to the named plaintiffs in an effort to collect debts they had incurred for medical services. The letter included the following statement:

As of the date of this letter, you owe $[a stated amount]. Because of interest, late charges, and other charges that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount shown above, an adjustment may be necessary after we receive your check. For further information, write to the above address or call [phone number].

         Plaintiffs allege that the letter was false, deceptive and misleading, and therefore violated the FDCPA, 15 U.S.C. §§ 1692e, 1692g(a)(1), because FSGB could neither legally, nor contractually impose “late charges and other charges” on debts for medical services. Reasoning that the letter substantially met the “safe-harbor” rule created by the court in Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, & Clark, LLC, 214 F.3d 872, 876 (7th Cir. 2000), this court originally dismissed the action and denied Plaintiffs' motion for class certification as moot. Dkt. No. 24, 2017 WL 2345678. The Seventh Circuit held that the statement did not comply with Miller, however, and reversed. Boucher v. Finance System of Green Bay, 880 F.3d 362 (7th Cir. 2018).

         On remand, Plaintiffs filed an amended complaint which added four new plaintiffs who had received similar letters and renewed their motion for certification of a class consisting of:

         All persons with Wisconsin addresses to whom FSGB mailed an initial written communication between January 30, 2016 and February 20, 2017, which was not returned as undeliverable by the U.S. Postal Service, and which sought to collect a debt on behalf of the following creditors:

(i) Barker Physical Therapy Clinic;
(ii) Fox Valley Emergency Medicine;
(iii) Orthopedic Sports Medicine;
(iv) Hand to Shoulder Center of Wisconsin; or
(v) The Center for Anesthetics and Plastic Surgery and the collection letter:
(i) stated, “because of interest, late charges and other charges that may be assessed by your creditor that vary from day to day, the amount due on the day you pay, may be greater”; and
(ii) late charges and other charges were not subsequently added to the ...

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