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Brunett v. Convergent Outsourcing Inc.

United States District Court, E.D. Wisconsin

October 29, 2019

DARLENE BRUNETT, Plaintiff,
v.
CONVERGENT OUTSOURCING INC., Defendant.

          DECISION AND ORDER

          LYNN ADELMAN, DISTRICT JUDGE

         Darlene Brunett filed this putative class action against Convergent Outsourcing, Inc., (“Convergent”) alleging that a collection letter it sent her contained language that violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Pending before me are plaintiff's motion for class certification and defendant's motion for summary judgment.

         I. BACKGROUND

         The undisputed facts of the case are as follows. Darlene Brunell incurred a debt of 1012.13 owed to Comenity Bank, related to her PayPal account. She failed to pay the balance of her account and Comenity Bank placed the account with defendant Convergent for collection. Convergent set a collection letter to Brunell, which included the following language:

This notice is being sent to you by a collection agency. Your PayPal Credit account, has a past due balance of $ 1012.13.
Our client has advised us that they are willing to satisfy your account for 50% of your total balance. The full amount must be received in our office by an agreed upon date. If you are interested in taking advantage of this opportunity, call our office within 60 days of this letter. Even if you are unable to take advantage of this opportunity, please contact our office to see what terms can be worked out on your account. We are not required to make this arrangement to you in the future.
Notice: The Internal Revenue Service may require financial institutions to file form 1099-C (Cancellation of Debt) to report the discharge of indebtedness of $600.00 or more.

ECF # 39-2 at 2. If Brunett had accepted the offer offered in the letter, she would have paid $506.07 to Convergent, and Convergent would have discharged the remaining $506.06. Since that amount is less than $600.00, the IRS reporting requirement would not have been triggered.

         After receiving the letter, Brunett called Convergent and stated that she was unable to pay the $506.07 to resolve the account, instead offering to make monthly payments of $5.00.

         Plaintiff testified at her deposition that she was confused by the inclusion of the IRS notice in the collection letter, and was unsure under what conditions it would apply to her. She alleges that the inclusion of such a notice might cause a recipient of such a letter to pay the entire debt to avoid trouble with the IRS, thus foregoing various options and protections available to debtors.

         II. CLASS CERTIFICATION

         Brunett's proposed class consists of “2, 666 residents of Wisconsin, Indiana, and Illinois who were [sic] the collection letters sent to those residents listed (a) an amount owed that was less than $600 or (b) listed a proposed discharge of indebtedness that was for less than $600.” ECF # 38 at 3-4. Brunett moves that she be appointed class representative and that her counsel, James Vlahakis, be appointed class counsel.

         Federal Rule of Civil Procedure 23(a) provides:

One or more members of a class may sue or be sued as representative parties on behalf ...

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