Preview
FILED
Hearing Date: 5/9/2024 10:00 AM 1/10/2024 2:22 PM
Location: Court Room 2410 IRIS Y. MARTINEZ
Judge: Loftus, Anna M. CIRCUIT CLERK
COOK COUNTY, IL
2024CH00187
Atty. No. 41106 Calendar, 15
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS 25916881
COUNTY DEPARTMENT, CHANCERY DIVISION
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ANTHONY BANAS, )
on behalf of Plaintiff and the class members )
described herein, )
)
Plaintiffs, )
2024CH00187
)
vs. )
)
MIDWEST FIDELITY SERVICES, LLC, )
)
Defendant. )
PLAINTIFF’S MOTION FOR CLASS CERTIFICATION
Plaintiff, Anthony Banas, respectfully requests that the Court order that this action, alleging
violation of the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”), may
proceed on behalf of a class and subclass against Defendant Midwest Fidelity Services, LLC.
The class consists of (a) all individuals with Illinois addresses (b) from whom Defendant
sought to collect a loan (c) made at more than 9% interest (d) to an Illinois resident while in Illinois
(e) by an entity which did not possess a bank or credit union charter and was not licensed by the
Illinois Department of Financial and Professional Regulation (f) by communicating with the
consumer and/or credit reporting (g) where any such activity occurred on or after a date one year
prior to the filing of this action. The subclass consists of class members where the unlicensed entity
was “Rapital Capital.”
Plaintiff is required to file a motion for class certification with the Complaint, Ballard RN
Center, Inc. v. Kohll's Pharmacy and Homecare, Inc., 2015 IL 118644, 48 N.E.3d 1060, and may request
leave to supplement it later.
In support of this motion, Plaintiff states:
NATURE OF THE CASE
1. Plaintiff Anthony Banas is a natural person residing in Cook County, Illinois.
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2. Defendant Midwest Fidelity Services, LLC is a collection agency engaged in the
business of collecting debts in Cook County and elsewhere.
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3. Midwest Fidelity Services, LLC is engaged in the sole or principal business of
collecting consumer debts, using the mails and telephone system for that purpose.
4. Midwest Fidelity Services, LLC is a “debt collector” within the meaning of the
FDCPA.
5. Defendant Midwest Fidelity Services, LLC has been attempting to collect from
Plaintiff a high-interest Internet loan originated by “Rapital Capital” and allegedly held by Speedy
Cash Network.
6. The loan was made via the Internet to Plaintiff while Plaintiff was located in
Illinois, where she resided.
7. The loan was obtained for personal, family or household purposes and not for
business purposes.
8. On or about March 3, 2022, Defendant Midwest Fidelity Services, LLC sent
Plaintiff the email correspondence attached as Appendix A, seeking to collect the “Rapital Capital”
debt.
9. “Rapital Capital” makes loans annual percentage rates of more than 400%.
10. “Rapital Capital” claims to be owned by an Indian tribe in Canada.
11. This is not in fact true. Most of the profit from the loans is received by non-Native
Americans.
12. Appendix A represents that there is an outstanding “balance,” and seeks to invite
resolution by payment plan or settlement.
13. Such a communication represents or implies that the debt is valid and legally
enforceable. McMahon v. LVNV Funding, LLC, 744 F.3d 1010 (7th Cir. 2014).
14. In fact, the loan is void and unenforceable under Illinois law. The making of the
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loan is not only a civil wrong but a felony. 720 ILCS 5/17-59.
THE FAIR DEBT COLLECTION PRACTICES ACT
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15. The purpose of the FDCPA is “to eliminate abusive debt collection practices by
debt collectors.” 15 U.S.C. §1692(e). This law “is designed to protect consumers from unscrupulous
collectors, regardless of the validity of the debt.” Mace v. Van Ru Credit Corp., 109 F.3d 338, 341 (7th
Cir. 1997). The FDCPA broadly prohibits unfair or unconscionable collection methods; conduct
which harasses, oppresses or abuses any debtor; and any false, deceptive or misleading statements in
connection with the collection of a debt. It also requires debt collectors to give debtors certain
information about alleged debts, and about their rights as consumers. 15 U.S.C. §§1692d, 1692e,
1692f and 1692g.
16. In enacting the FDCPA, Congress recognized the “universal agreement among
scholars, law enforcement officials, and even debt collectors that the number of persons who
willfully refuse to pay just debts is minuscule.... [The] vast majority of consumers who obtain credit
fully intend to repay their debts. When default occurs, it is nearly always due to an unforeseen event
such as unemployment, overextension, serious illness, or marital difficulties or divorce.” 95 S.Rep.
382, at 3 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1697.
17. As noted in Ramirez v. Apex Financial Management LLC, 567 F.Supp.2d 1035,
1042 (N.D.Ill. 2008), “the FDCPA’s legislative intent emphasizes the need to construe the statute
broadly, so that we may protect consumers against debt collectors’ harassing conduct. This intent
cannot be underestimated.” See Sonmore v. CheckRite Recovery Services, Inc., 187 F.Supp.2d 1128, 1132
(D.Minn. 2001) (the FDCPA “is a remedial strict liability statute which was intended to be applied in
a liberal manner”); Owens v. Hellmuth & Johnson PLLC, 550 F.Supp.2d 1060, 1063 (D.Minn. 2008)
(same); and Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008) (the FDCPA should be
“[construed]... broadly, so as to effect its purpose”).
18. “Congress intended the Act to be enforced primarily by consumers....” Federal
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Trade Commission v. Shaffner, 626 F.2d 32, 35 (7th Cir. 1980). The FDCPA encourages consumers to
act as “private attorneys general” to enforce the public policies expressed therein. Crabill v. Trans
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Union, LLC, 259 F.3d 662, 666 (7th Cir. 2001); Baker v. G. C. Servs. Corp., 677 F.2d 775, 780 (9th Cir.
1982).
19. Courts hold that whether a debt collector’s conduct violates the FDCPA should be
judged from the standpoint of an “unsophisticated consumer,” Turner v. J.V.D.B. & Associates, Inc.,
330 F.3d 991, 995 (7th Cir. 2003), or “least sophisticated consumer,” Clomon v. Jackson, 988 F.2d
1314, 1318-19 (2nd Cir. 1993); Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1173 (11th Cir. 1985). The
standard is an objective one – whether any particular consumer was misled is not an element of a
cause of action. Bartlett v. Heibl, 128 F.3d 497, 499 (7th Cir. 1997). “The question is not whether the
plaintiff was deceived or misled, but rather whether an unsophisticated consumer would have been
misled.” Beattie v. D.M. Collections, Inc., 754 F. Supp. 383, 392 (D. Del. 1991).
20. Because it is part of the Consumer Credit Protection Act, 15 U.S.C. §§1601 et
seq., the FDCPA should be liberally construed in favor of the consumer to effectuate its purposes.
Cirkot v. Diversified Fin. Services, Inc., 839 F.Supp. 941 (D. Conn. 1993).
21. Congress provided that statutory damages are recoverable for violations, whether or
not the consumer proves actual damages. Baker v. G. C. Servs. Corp., 677 F.2d 775, 780-81 (9th Cir.
1982); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 307 (2d Cir. 2003) ("The FDCPA provides
for liability . . . and permits the recovery of statutory damages up to $1,000 in the absence of actual
damages."); Savino v. Computer Credit, Inc., 164 F.3d 81, 86 (2d Cir. 1998) (holding that FDCPA
statutory damages could be awarded without recovering actual damages); Jacobson v. Healthcare Fin.
Servs., 516 F.3d 85, 96 (2d Cir. 2008) ("[T]he FDCPA permits and encourages parties who have
suffered no loss to bring civil actions for statutory violations."); Salvati v. Deutsche Bank Nat. Trust Co.,
575 F. App'x 49, 56 (3d Cir. 2014) ("[U]nder the FDCPA, a plaintiff may collect statutory damages
even if he has suffered no actual damages); Carroll v. Wolpoff & Abramson, 53 F.3d 626, 627 (4th Cir.
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1995) (affirming award of statutory damages to plaintiff who “abandoned her claim for actual
damages”); Bediako v. Am. Honda Fin. Corp., 537 F. App'x 183, 186-87 (4th Cir. 2013) (“Unlike the
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Fair Debt Collection Practices Act, which . . . provides for statutory damages as long as the claimant
can establish a violation, 15 U.S.C. §1692k(a)(2), [a Maryland statute] does not provide for any fixed
statutory damages beyond the plaintiff's actual loss.”); Willis v. Portfolio Recovery Assocs., L.L.C., 803 F.
App'x 761, 763 (5th Cir. 2020) (“Read straightforwardly, the FDCPA does not require proof of
actual damages to ground statutory damages. We have never held that it does, and neither have
other circuits.”); Federal Home Loan Mortg. Corp. v. Lamar, 503 F.3d 504, 513 (6th Cir. 2007); Bartlett v.
Heibl, 128 F.3d 497, 499 (7th Cir.1997) (“That would be a telling point if Bartlett were seeking actual
damages, for example as a consequence of being misled by the letter into surrendering a legal
defense against the credit-card company. He can't have suffered such damages as a result of the
statutory violation, because he didn't read the letter. But he is not seeking actual damages. He is
seeking only statutory damages, a penalty that does not depend on proof that the recipient of the
letter was misled.”); Picht v. Hawks, 77 F. Supp. 2d 1041, 1043 (D. Minn. 1999) (noting the FDCPA
is a "remedial, strict liability statute," and "[p]roof of deception or actual damages is not necessary to
make a recovery"), aff'd 236 F.3d 446 (8th Cir. 2001); Tourgeman v. Collins Fin. Servs., 755 F.3d 1109,
1117 (9th Cir. 2014)(“a consumer possesses a right of action even where the defendant's conduct
has not caused him or her to suffer any pecuniary or emotional harm.”); Robey v. Shapiro, 434 F.3d.
1208, 1212 (10th Cir. 2006) (FDCPA permits for recovery of statutory damages up to $1,000 in
absence of actual damages); Shoup v. McCurdy & Candler, 465 Fed. Appx. 882, 885 (11th Cir. 2012)
(per curiam) (stating that the FDCPA "provides a claim for statutory damages based on any
violation of the statute."); Hepsen v. J.C. Christensen & Assocs., Inc., 2009 U.S. Dist. LEXIS 92717,
2009 WL 3064865, at *7 (M.D. Fla. Sept. 22, 2009) aff'd, 383 F. App'x 877 (11th Cir. 2010)
(awarding statutory damages despite absence of actual damages); Ponce v. BCA Fin. Servs., 467 F.
App'x 806, 809 (11th Cir. 2012) (affirming award of only statutory damages).
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22. Among the conduct prohibited by the FDCPA is the “false representation of —
(A) the character, amount, or legal status of any debt” (15 U.S.C. §1692e(2)) and the collection of
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usurious interest, 15 U.S.C. §1692f(1) (“The collection of any amount (including any interest, fee,
charge, or expense incidental to the principal obligation) unless such amount is expressly authorized
by the agreement creating the debt or permitted by law.”).
23. These provisions have been held to cover collection and attempted collection of
usurious interest as if it were a valid debt. Pollice v. National Tax Funding, L.P., 225 F.3d 379, 408 (3rd
Cir. 2000) (“[D]efendants presumably have violated section 1692f(1) regardless of the presence of
any agreement authorizing the rates of interest and penalties, because state law specifically prohibits
charging interest in excess of ten percent on the assigned claims”); Nance v. Ulferts, 282 F.Supp.2d
912 (N.D.Ind. 2003); Patzka v. Viterbo College, 917 F.Supp. 654, 658 (W.D. Wisc. 1996); Martinez v.
Albuquerque Collection Services, Inc., 867 F.Supp. 1495 (D.N.M. 1994).
REQUIREMENTS FOR CLASS CERTIFICATION
24. Section 2-801 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-801, states:
Prerequisites for the maintenance of a class action.
An action may be maintained as a class action in any court of this State and a party may sue
or be sued as a representative party of the class only if the court finds:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions
predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of
the controversy.
Although the statute was modeled after Rule 23 of the Federal Rule of Civil Procedure, some
differences exist between the two. Eshaghi v. Hanley Dawson Cadillac Co., 214 Ill. App. 3d 995, 999,
574 N.E.2d 760, 762 (1st Dist. 1991).
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25. The class action determination is to be made as soon as practicable after the
commencement of an action brought as a class action and before any consideration of the merits.
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735 ILCS 5/2-802. The circuit court has discretion as to whether an action may proceed as a class
action. Haywood v. Superior Bank, 244 Ill. App. 3d 326, 328, 614 N.E.2d 461, 463 (1st Dist. 1993)
(overturning the lower court’s denial of class certification in a landlord-tenant case).
26. Class actions are essential to enforce laws protecting consumers. As the court stated
in Eshaghi v. Hanley Dawson Cadillac Co., 214 Ill.App.3d 995, 574 N.E.2d 760 (1st Dist. 1991):
In a large and impersonal society, class actions are often the last barricade of consumer
protection. . . . To consumerists, the consumer class action is an inviting procedural device
to cope with frauds causing small damages to large groups. The slight loss to the individual,
when aggregated in the coffers of the wrongdoer, results in gains which are both handsome
and tempting. The alternatives to the class action -- private suits or governmental actions --
have been so often found wanting in controlling consumer frauds that not even the ardent
critics of class actions seriously contend that they are truly effective. The consumer class
action, when brought by those who have no other avenue of legal redress, provides
restitution to the injured, and deterrence of the wrongdoer. (574 N.E.2d at 764, 766)
27. As demonstrated below, each of the requirements for class certification is met.
28. Congress expressly recognized the propriety of a class action under the FDCPA by
providing special damage provisions and criteria in 15 U.S.C. §§1692k(a) and (b) for FDCPA class
action cases. As a result, numerous FDCPA class actions have been certified. Phillips v. Asset
Acceptance, LLC, 736 F.3d 1076 (7th Cir. 2013); McMahon v. LVNV Funding, LLC, 807 F.3d 872 (7th
Cir. 2015); Vines v. Sands, 188 F.R.D. 302 (N.D. Ill. 1999); Nielsen v. Dickerson, 98cv5909, 1999 WL
350649, 1999 U.S. Dist. LEXIS 8334 (N.D. Ill. May 20, 1999); Sledge v. Sands, 182 F.R.D. 255 (N.D.
Ill. 1998); Shaver v. Trauner, 97cv1309, 1998 WL 35333712, 1998 U.S. Dist. LEXIS 19647 (C.D. Ill.
May 29, 1998) report and recommendation adopted, 1998 WL 35333713, 1998 U.S. Dist. LEXIS 19648
(C.D. Ill. July 31, 1998); Carroll v. United Compucred Collections, Inc., 1:99cv0152, 2002 WL 31936511,
2002 U.S. Dist. LEXIS 25032 (M.D. Tenn. Nov. 15, 2002), report and recommendation adopted in part,
2003 WL 1903266, 2003 U.S. Dist. LEXIS 5996 (M.D. Tenn. Mar. 31, 2003) aff'd, 399 F.3d 620 (6th
Cir. 2005); Wahl v. Midland Credit Mgmt., Inc., 243 F.R.D. 291 (N.D. Ill. 2007); Keele v. Wexler,
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95cv3483, 1996 WL 124452, 1996 U.S. Dist. LEXIS 3253 (N.D. Ill. Mar. 19, 1996), aff'd, 149 F.3d
589 (7th Cir. 1998); Miller v. Wexler & Wexler, 97cv6593, 1998 WL 60798, 1998 U.S. Dist. LEXIS
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1382 (N.D. Ill. Feb. 6, 1998); Wilborn v. Dun & Bradstreet, 180 F.R.D. 347 (N.D. Ill. 1998); Arango v.
GC Servs., LP, 97cv7912, 1998 WL 325257, 1998 U.S. Dist. LEXIS 9124 (N.D. Ill. June 11, 1998)
(misleading collection letters); Avila v. Van Ru Credit Corp., 94cv3234, 1995 WL 41425, 1995 U.S.
Dist. LEXIS 461 (N.D. Ill. Jan. 31, 1995), aff’d sub nom. Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996);
Ramirez v. Palisades Collection LLC, 250 F.R.D. 366 (N.D.Ill. 2008); Cotton v. Asset Acceptance,
07cv5005, 2008 WL 2561103, 2008 U.S. Dist. LEXIS 49042 (N.D.Ill. June 26, 2008) (class certified);
Carr v. Trans Union Corp., 94cv0022, 1995 WL 20865, 1995 U.S. Dist. LEXIS 567 (E.D. Pa. Jan. 12,
1995) (FDCPA class certified regarding defendant Trans Union's transmission of misleading
collection notices to consumers); Colbert v. Trans Union Corp. 93cv6106, 1995 WL 20821, 1995 U.S.
Dist. LEXIS 578 (E.D. Pa. Jan. 12, 1995) (same); Gammon v. GC Services, L.P., 162 F.R.D. 313 (N.D.
Ill. 1995) (similar); Zanni v. Lippold, 119 F.R.D. 32, 35 (C.D. Ill. 1988); West v. Costen, 558 F. Supp.
564, 572-573 (W.D. Va. 1983) (FDCPA class certified regarding alleged failure to provide required
"validation" notices and addition of unauthorized fees); Cheqnet Systems, Inc. v. Montgomery, 322 Ark.
742, 911 S.W.2d 956 (1995) (class certified in FDCPA action challenging bad check charges); Brewer
v. Friedman, 152 F.R.D. 142 (N.D. Ill. 1993) (FDCPA class certified regarding transmission of
misleading collection demands to consumers), earlier opinion, 833 F. Supp. 697 (N.D. Ill. 1993);
Duran v. Credit Bureau of Yuma, Inc., 93 F.R.D. 607 (D. Ariz. 1982) (class certified in action
complaining of unauthorized charges).
Numerosity
29. Section 2-801(1) parallels the language of Federal Rule of Civil Procedure 23(a)(1);
therefore, federal case law is instructive on the numerosity requirements under the Illinois Rules.
Wood River Area Dev. Corp. v. Germania Fed. Sav. & Loan Ass’n, 198 Ill. App. 3d 445, 450, 555 N.E.2d
1150, 1153 (5th Dist. 1990). The numerosity requirement is satisfied if it is reasonable to conclude
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that the number of members of the proposed class is greater than the minimum number required for
class certification, which is about 10-40. Kulins v. Malco, 121 Ill. App. 3d 520, 530, 459 N.E.2d 1038
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(1st Dist. 1984) (19 and 47 members sufficient); Swanson v. American Consumer Industries, 415 F.2d
1326, 1333 (7th Cir. 1969) (40 class members sufficient); Riordan v. Smith Barney, 113 F.R.D. 60, 62
(N.D. Ill. 1986) (10-29 members sufficient).
30. Illinois case law further indicates that “[t]he number of class members is relevant,
not determinative.” Wood River Area Dev. Corp., 198 Ill. App. 3d at 450, 555 N.E. 2d at 1153. Where
the class size is smaller, other factors may come into play to demonstrate that joinder is impractical,
including: (1) geographical spread of class members, (2) ease of identifying and locating class
members, (3) the knowledge and sophistication of class members and their need for protection, (4)
the size of class members’ claims, and (5) the nature of the case. Id. at 450-51, 555 N.E. 2d at 1153-
54.
31. It is not necessary that the precise number of class members be known: "A class
action may proceed upon estimates as to the size of the proposed class." In re Alcoholic Beverages Lit.,
95 F.R.D. 321 (E.D.N.Y. 1982); Lewis v. Gross, 663 F.Supp. 1164, 1169 (E.D.N.Y. 1986). The Court
may "make common sense assumptions in order to find support for numerosity." Evans v. United
States Pipe & Foundry, 696 F.2d 925, 930 (11th Cir. 1983). "The court may assume sufficient
numerousness where reasonable to do so in absence of a contrary showing by defendant, since
discovery is not essential to most cases in order to reach a class determination. . . . Where the exact
size of the class is unknown, but it is general knowledge or common sense that it is large, the court
will take judicial notice of this fact and will assume joinder is impracticable." 2 Newberg on Class
Actions (3d ed. 1995), §7.22.
32. In the present case, Plaintiff alleges, based on a practice of collecting loans made at
rates exceeding the maximum permitted under Illinois law, that there are more than 40 class
members, making them so numerous that joinder is impracticable.
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33. While discovery will be needed to determine the precise class size, it is reasonable to
infer that numerosity is satisfied. Wood River Area Dev. Corp., 198 Ill. App. 3d at 450, 555 N.E.2d at
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1153 (concurring with a leading scholar’s assertion that a class size of 40 clearly satisfies numerosity
and that a class size of 25 likely satisfies numerosity); Swiggett v. Watson, 441 F.Supp. 254, 256 (D.Del.
1977) (an action challenging transfers of title pursuant to Delaware motor vehicle repairer's lien, the
fact the Department of Motor Vehicles issued printed forms for such transfer was in of itself
sufficient to show that the numerosity requirement was satisfied); Westcott v. Califano, 460 F. Supp.
737, 744 (D.Mass. 1978) (in action challenging certain welfare policies, existence of policies and 148
families who were denied benefits to which policies applied sufficient to show numerosity, even
though it was impossible to identify which of 148 families were denied benefits because of policies
complained of); Carr v. Trans Union Corp., supra (Fair Debt Collection Practices Act class certified
regarding defendant Trans Union's transmission of misleading collection notices to consumers in
which court inferred numerosity from the use of form letters); Colbert v. Trans Union Corp., supra
(same).
Common Questions and Predominance
34. A common question may be shown when the claims of the individual members of
the class are based on the common application of a statute or they were aggrieved by the same or
similar misconduct. McCarthy v. La Salle Nat'l Bank & Trust Co., 230 Ill. App. 3d 628, 634, 595
N.E.2d 149, 153 (1st Dist.1992).
35. In the present case, the predominant common questions are:
i. Whether Defendant seeks to collect loans made by unlicensed
entities at rates exceeding the maximum permitted by Illinois law;
ii. Whether the attempted collection of such loans violates the FDCPA.
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36. Where a case involves “standardized conduct of the defendants toward members of
the proposed class, a common nucleus of operative facts is typically presented, and the commonality
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requirement . . . is usually met.” Franklin v. City of Chicago, 102 F.R.D. 944, 949 (N.D. Ill. 1984).
37. The only individual issue is the identification of the class members, a matter easily
ascertainable from the files of Defendant.
38. Questions readily answerable from a party’s files do not present an obstacle to class
certification. Heastie v. Community Bank, 125 F.R.D. 669 (N.D.Ill. 1989) (court found that common
issues predominated where individual questions of injury and damages could be determined by
"merely comparing the contract between the consumer and the contractor with the contract
between the consumer and Community Bank").
Adequacy of Representation
39. The class action statute requires that the class representative provide fair and
adequate protection for the interests of the class. That protection involves two factors: (a) the
attorney for the class must be qualified, experienced, and generally able to conduct the proposed
litigation; and (b) the representative must not have interests antagonistic to those of the class.
Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992).
40. Plaintiff understands the obligations of a class representative, and has retained
experienced counsel, as is indicated by Appendix B, which sets forth counsel's qualifications.
41. There are no conflicts between Plaintiff and the class members.
Appropriateness of Class Action
42. Efficiency is the primary focus in determining whether the class action is an
appropriate method for resolving the controversy presented. Eovaldi v. First Nat'l Bank, 57 F.R.D.
545 (N.D.Ill. 1972). It is proper for a court, in deciding this issue, to consider the ". . . inability of the
poor or uninformed to enforce their rights, and the improbability that large numbers of class
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members would possess the initiative to litigate individually." Haynes v. Logan Furniture Mart, Inc., 503
F.2d 1161, 1165 (7th Cir. 1974).
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43. In this case there is no better method available for the adjudication of the claims
which might be brought by each individual consumer. The vast majority of consumers are
undoubtedly unaware that their rights are being violated. In addition, the modest size of the claims
makes it unlikely that consumers would be able to pay to retain counsel to protect their rights on an
individual basis.
44. The special efficacy of the consumer class action has been noted by the courts and is
applicable to this case:
A class action permits a large group of claimants to have their claims adjudicated in a single
lawsuit. This is particularly important where, as here, a large number of small and medium
sized claimants may be involved. In light of the awesome costs of discovery and trial, many
of them would not be able to secure relief if class certification were denied . . . .
In re Folding Carton Antitrust Lit., 75 F.R.D. 727, 732 (N.D.Ill. 1977) (citations omitted).) Another
court noted:
Given the relatively small amount recoverable by each potential litigant, it is unlikely that,
absent the class action mechanism, any one individual would pursue his claim, or even be
able to retain an attorney willing to bring the action. As Professors Wright, Miller and Kane
have discussed, in analyzing consumer protection class actions such as the instant one,
'typically the individual claims are for small amounts, which means that the injured parties
would not be able to bear the significant litigation expenses involved in suing a large
corporation on an individual basis. These financial barriers may be overcome by permitting
the suit to be brought by one or more consumers on behalf of others who are similarly
situated.' 7B Wright et al., §1778, at 59; see e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797,
809 (1985) ('Class actions...may permit the plaintiff to pool claims which would be
uneconomical to litigate individually.') The public interest in seeing that the rights of
consumers are vindicated favors the disposition of the instant claims in a class action form.
Lake v. First Nationwide Bank, 156 F.R.D. 615 at 628, 629 (E.D.Pa 1994).
CONCLUSION
45. The Court should certify this action as a class action.
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Respectfully submitted,
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/s/Daniel A. Edelman
Daniel A. Edelman
Daniel A. Edelman
Cassandra P. Miller
Stephen J. Pigozzi
EDELMAN, COMBS, LATTURNER & GOODWIN, LLC
20 South Clark Street, Suite 1500
Chicago, IL 60603-1824
(312) 739-4200
(312) 419-0379 (FAX)
Email address for service: courtecl@edcombs.com
Atty. No. 41106 (Cook)
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CERTIFICATE OF SERVICE
I, Daniel A. Edelman, certify that I had a copy of this document placed for service with the
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complaint.
/s/Daniel A. Edelman
Daniel A. Edelman
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APPENDIX A
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APPENDIX B
Atty. No. 41106
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION
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ANTHONY BANAS, )
on behalf of Plaintiff and the class members )
described herein, )
)
Plaintiffs, )
)
vs. )
)
MIDWEST FIDELITY SERVICES, LLC, )
)
Defendant. )
DECLARATION OF DANIEL A. EDELMAN
Daniel A. Edelman declares under penalty of perjury, as provided for by 735 ILCS 5/1-109, that
the following statements are true:
1. Edelman, Combs, Latturner & Goodwin, LLC, has 5 principals, Daniel A.
Edelman, Tara L. Goodwin, Julie Clark, Heather Kolbus, and Cassandra P. Miller, and four associates.
Member James O. Latturner retired in 2020 and Cathleen M. Combs at the end of 2021.
2. Daniel A. Edelman is a 1976 graduate of the University of Chicago Law
School. From 1976 to 1981 he was an associate at the Chicago office of Kirkland & Ellis with heavy
involvement in the defense of consumer class action litigation (such as the General Motors Engine
Interchange cases). In 1981 he became an associate at Reuben & Proctor, a medium-sized firm formed
by some former Kirkland & Ellis lawyers, and was made a partner there in 1982. From the end of 1985
he has been in private practice in downtown Chicago. Virtually all of his practice involves litigation on
behalf of consumers, through both class and individual actions. He is the author of the chapters on the
“Fair Debt Collection Practices Act,” “Truth in Lending Act,” and “Telephone Consumer Protection
Act” in Illinois Causes of Action (Ill. Inst. For Cont. Legal Educ. 2020 and earlier editions), author of
Collection Litigation: Representing the Debtor (Ill. Inst. Cont. Legal Educ. 2008, 2011, 2014, 2019, 2022),
author of Predatory Mortgage Lending and Servicing (Ill. Inst. for Cont. Legal. Educ. 2022), co-author of
Rosmarin & Edelman, Consumer Class Action Manual (2d-4th
Preview
FILED Hearing Date: 5/9/2024 10:00 AM 1/10/2024 2:22 PM Location: Court Room 2410 IRIS Y. MARTINEZ Judge: Loftus, Anna M. CIRCUIT CLERK COOK COUNTY, IL 2024CH00187 Atty. No. 41106 Calendar, 15 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS 25916881 COUNTY DEPARTMENT, CHANCERY DIVISION FILED DATE: 1/10/2024 2:22 PM 2024CH00187 ANTHONY BANAS, ) on behalf of Plaintiff and the class members ) described herein, ) ) Plaintiffs, ) 2024CH00187 ) vs. ) ) MIDWEST FIDELITY SERVICES, LLC, ) ) Defendant. ) PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Plaintiff, Anthony Banas, respectfully requests that the Court order that this action, alleging violation of the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”), may proceed on behalf of a class and subclass against Defendant Midwest Fidelity Services, LLC. The class consists of (a) all individuals with Illinois addresses (b) from whom Defendant sought to collect a loan (c) made at more than 9% interest (d) to an Illinois resident while in Illinois (e) by an entity which did not possess a bank or credit union charter and was not licensed by the Illinois Department of Financial and Professional Regulation (f) by communicating with the consumer and/or credit reporting (g) where any such activity occurred on or after a date one year prior to the filing of this action. The subclass consists of class members where the unlicensed entity was “Rapital Capital.” Plaintiff is required to file a motion for class certification with the Complaint, Ballard RN Center, Inc. v. Kohll's Pharmacy and Homecare, Inc., 2015 IL 118644, 48 N.E.3d 1060, and may request leave to supplement it later. In support of this motion, Plaintiff states: NATURE OF THE CASE 1. Plaintiff Anthony Banas is a natural person residing in Cook County, Illinois. -1- 2. Defendant Midwest Fidelity Services, LLC is a collection agency engaged in the business of collecting debts in Cook County and elsewhere. FILED DATE: 1/10/2024 2:22 PM 2024CH00187 3. Midwest Fidelity Services, LLC is engaged in the sole or principal business of collecting consumer debts, using the mails and telephone system for that purpose. 4. Midwest Fidelity Services, LLC is a “debt collector” within the meaning of the FDCPA. 5. Defendant Midwest Fidelity Services, LLC has been attempting to collect from Plaintiff a high-interest Internet loan originated by “Rapital Capital” and allegedly held by Speedy Cash Network. 6. The loan was made via the Internet to Plaintiff while Plaintiff was located in Illinois, where she resided. 7. The loan was obtained for personal, family or household purposes and not for business purposes. 8. On or about March 3, 2022, Defendant Midwest Fidelity Services, LLC sent Plaintiff the email correspondence attached as Appendix A, seeking to collect the “Rapital Capital” debt. 9. “Rapital Capital” makes loans annual percentage rates of more than 400%. 10. “Rapital Capital” claims to be owned by an Indian tribe in Canada. 11. This is not in fact true. Most of the profit from the loans is received by non-Native Americans. 12. Appendix A represents that there is an outstanding “balance,” and seeks to invite resolution by payment plan or settlement. 13. Such a communication represents or implies that the debt is valid and legally enforceable. McMahon v. LVNV Funding, LLC, 744 F.3d 1010 (7th Cir. 2014). 14. In fact, the loan is void and unenforceable under Illinois law. The making of the -2- loan is not only a civil wrong but a felony. 720 ILCS 5/17-59. THE FAIR DEBT COLLECTION PRACTICES ACT FILED DATE: 1/10/2024 2:22 PM 2024CH00187 15. The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors.” 15 U.S.C. §1692(e). This law “is designed to protect consumers from unscrupulous collectors, regardless of the validity of the debt.” Mace v. Van Ru Credit Corp., 109 F.3d 338, 341 (7th Cir. 1997). The FDCPA broadly prohibits unfair or unconscionable collection methods; conduct which harasses, oppresses or abuses any debtor; and any false, deceptive or misleading statements in connection with the collection of a debt. It also requires debt collectors to give debtors certain information about alleged debts, and about their rights as consumers. 15 U.S.C. §§1692d, 1692e, 1692f and 1692g. 16. In enacting the FDCPA, Congress recognized the “universal agreement among scholars, law enforcement officials, and even debt collectors that the number of persons who willfully refuse to pay just debts is minuscule.... [The] vast majority of consumers who obtain credit fully intend to repay their debts. When default occurs, it is nearly always due to an unforeseen event such as unemployment, overextension, serious illness, or marital difficulties or divorce.” 95 S.Rep. 382, at 3 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1697. 17. As noted in Ramirez v. Apex Financial Management LLC, 567 F.Supp.2d 1035, 1042 (N.D.Ill. 2008), “the FDCPA’s legislative intent emphasizes the need to construe the statute broadly, so that we may protect consumers against debt collectors’ harassing conduct. This intent cannot be underestimated.” See Sonmore v. CheckRite Recovery Services, Inc., 187 F.Supp.2d 1128, 1132 (D.Minn. 2001) (the FDCPA “is a remedial strict liability statute which was intended to be applied in a liberal manner”); Owens v. Hellmuth & Johnson PLLC, 550 F.Supp.2d 1060, 1063 (D.Minn. 2008) (same); and Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008) (the FDCPA should be “[construed]... broadly, so as to effect its purpose”). 18. “Congress intended the Act to be enforced primarily by consumers....” Federal -3- Trade Commission v. Shaffner, 626 F.2d 32, 35 (7th Cir. 1980). The FDCPA encourages consumers to act as “private attorneys general” to enforce the public policies expressed therein. Crabill v. Trans FILED DATE: 1/10/2024 2:22 PM 2024CH00187 Union, LLC, 259 F.3d 662, 666 (7th Cir. 2001); Baker v. G. C. Servs. Corp., 677 F.2d 775, 780 (9th Cir. 1982). 19. Courts hold that whether a debt collector’s conduct violates the FDCPA should be judged from the standpoint of an “unsophisticated consumer,” Turner v. J.V.D.B. & Associates, Inc., 330 F.3d 991, 995 (7th Cir. 2003), or “least sophisticated consumer,” Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2nd Cir. 1993); Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1173 (11th Cir. 1985). The standard is an objective one – whether any particular consumer was misled is not an element of a cause of action. Bartlett v. Heibl, 128 F.3d 497, 499 (7th Cir. 1997). “The question is not whether the plaintiff was deceived or misled, but rather whether an unsophisticated consumer would have been misled.” Beattie v. D.M. Collections, Inc., 754 F. Supp. 383, 392 (D. Del. 1991). 20. Because it is part of the Consumer Credit Protection Act, 15 U.S.C. §§1601 et seq., the FDCPA should be liberally construed in favor of the consumer to effectuate its purposes. Cirkot v. Diversified Fin. Services, Inc., 839 F.Supp. 941 (D. Conn. 1993). 21. Congress provided that statutory damages are recoverable for violations, whether or not the consumer proves actual damages. Baker v. G. C. Servs. Corp., 677 F.2d 775, 780-81 (9th Cir. 1982); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 307 (2d Cir. 2003) ("The FDCPA provides for liability . . . and permits the recovery of statutory damages up to $1,000 in the absence of actual damages."); Savino v. Computer Credit, Inc., 164 F.3d 81, 86 (2d Cir. 1998) (holding that FDCPA statutory damages could be awarded without recovering actual damages); Jacobson v. Healthcare Fin. Servs., 516 F.3d 85, 96 (2d Cir. 2008) ("[T]he FDCPA permits and encourages parties who have suffered no loss to bring civil actions for statutory violations."); Salvati v. Deutsche Bank Nat. Trust Co., 575 F. App'x 49, 56 (3d Cir. 2014) ("[U]nder the FDCPA, a plaintiff may collect statutory damages even if he has suffered no actual damages); Carroll v. Wolpoff & Abramson, 53 F.3d 626, 627 (4th Cir. -4- 1995) (affirming award of statutory damages to plaintiff who “abandoned her claim for actual damages”); Bediako v. Am. Honda Fin. Corp., 537 F. App'x 183, 186-87 (4th Cir. 2013) (“Unlike the FILED DATE: 1/10/2024 2:22 PM 2024CH00187 Fair Debt Collection Practices Act, which . . . provides for statutory damages as long as the claimant can establish a violation, 15 U.S.C. §1692k(a)(2), [a Maryland statute] does not provide for any fixed statutory damages beyond the plaintiff's actual loss.”); Willis v. Portfolio Recovery Assocs., L.L.C., 803 F. App'x 761, 763 (5th Cir. 2020) (“Read straightforwardly, the FDCPA does not require proof of actual damages to ground statutory damages. We have never held that it does, and neither have other circuits.”); Federal Home Loan Mortg. Corp. v. Lamar, 503 F.3d 504, 513 (6th Cir. 2007); Bartlett v. Heibl, 128 F.3d 497, 499 (7th Cir.1997) (“That would be a telling point if Bartlett were seeking actual damages, for example as a consequence of being misled by the letter into surrendering a legal defense against the credit-card company. He can't have suffered such damages as a result of the statutory violation, because he didn't read the letter. But he is not seeking actual damages. He is seeking only statutory damages, a penalty that does not depend on proof that the recipient of the letter was misled.”); Picht v. Hawks, 77 F. Supp. 2d 1041, 1043 (D. Minn. 1999) (noting the FDCPA is a "remedial, strict liability statute," and "[p]roof of deception or actual damages is not necessary to make a recovery"), aff'd 236 F.3d 446 (8th Cir. 2001); Tourgeman v. Collins Fin. Servs., 755 F.3d 1109, 1117 (9th Cir. 2014)(“a consumer possesses a right of action even where the defendant's conduct has not caused him or her to suffer any pecuniary or emotional harm.”); Robey v. Shapiro, 434 F.3d. 1208, 1212 (10th Cir. 2006) (FDCPA permits for recovery of statutory damages up to $1,000 in absence of actual damages); Shoup v. McCurdy & Candler, 465 Fed. Appx. 882, 885 (11th Cir. 2012) (per curiam) (stating that the FDCPA "provides a claim for statutory damages based on any violation of the statute."); Hepsen v. J.C. Christensen & Assocs., Inc., 2009 U.S. Dist. LEXIS 92717, 2009 WL 3064865, at *7 (M.D. Fla. Sept. 22, 2009) aff'd, 383 F. App'x 877 (11th Cir. 2010) (awarding statutory damages despite absence of actual damages); Ponce v. BCA Fin. Servs., 467 F. App'x 806, 809 (11th Cir. 2012) (affirming award of only statutory damages). -5- 22. Among the conduct prohibited by the FDCPA is the “false representation of — (A) the character, amount, or legal status of any debt” (15 U.S.C. §1692e(2)) and the collection of FILED DATE: 1/10/2024 2:22 PM 2024CH00187 usurious interest, 15 U.S.C. §1692f(1) (“The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.”). 23. These provisions have been held to cover collection and attempted collection of usurious interest as if it were a valid debt. Pollice v. National Tax Funding, L.P., 225 F.3d 379, 408 (3rd Cir. 2000) (“[D]efendants presumably have violated section 1692f(1) regardless of the presence of any agreement authorizing the rates of interest and penalties, because state law specifically prohibits charging interest in excess of ten percent on the assigned claims”); Nance v. Ulferts, 282 F.Supp.2d 912 (N.D.Ind. 2003); Patzka v. Viterbo College, 917 F.Supp. 654, 658 (W.D. Wisc. 1996); Martinez v. Albuquerque Collection Services, Inc., 867 F.Supp. 1495 (D.N.M. 1994). REQUIREMENTS FOR CLASS CERTIFICATION 24. Section 2-801 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-801, states: Prerequisites for the maintenance of a class action. An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds: (1) The class is so numerous that joinder of all members is impracticable. (2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members. (3) The representative parties will fairly and adequately protect the interest of the class. (4) The class action is an appropriate method for the fair and efficient adjudication of the controversy. Although the statute was modeled after Rule 23 of the Federal Rule of Civil Procedure, some differences exist between the two. Eshaghi v. Hanley Dawson Cadillac Co., 214 Ill. App. 3d 995, 999, 574 N.E.2d 760, 762 (1st Dist. 1991). -6- 25. The class action determination is to be made as soon as practicable after the commencement of an action brought as a class action and before any consideration of the merits. FILED DATE: 1/10/2024 2:22 PM 2024CH00187 735 ILCS 5/2-802. The circuit court has discretion as to whether an action may proceed as a class action. Haywood v. Superior Bank, 244 Ill. App. 3d 326, 328, 614 N.E.2d 461, 463 (1st Dist. 1993) (overturning the lower court’s denial of class certification in a landlord-tenant case). 26. Class actions are essential to enforce laws protecting consumers. As the court stated in Eshaghi v. Hanley Dawson Cadillac Co., 214 Ill.App.3d 995, 574 N.E.2d 760 (1st Dist. 1991): In a large and impersonal society, class actions are often the last barricade of consumer protection. . . . To consumerists, the consumer class action is an inviting procedural device to cope with frauds causing small damages to large groups. The slight loss to the individual, when aggregated in the coffers of the wrongdoer, results in gains which are both handsome and tempting. The alternatives to the class action -- private suits or governmental actions -- have been so often found wanting in controlling consumer frauds that not even the ardent critics of class actions seriously contend that they are truly effective. The consumer class action, when brought by those who have no other avenue of legal redress, provides restitution to the injured, and deterrence of the wrongdoer. (574 N.E.2d at 764, 766) 27. As demonstrated below, each of the requirements for class certification is met. 28. Congress expressly recognized the propriety of a class action under the FDCPA by providing special damage provisions and criteria in 15 U.S.C. §§1692k(a) and (b) for FDCPA class action cases. As a result, numerous FDCPA class actions have been certified. Phillips v. Asset Acceptance, LLC, 736 F.3d 1076 (7th Cir. 2013); McMahon v. LVNV Funding, LLC, 807 F.3d 872 (7th Cir. 2015); Vines v. Sands, 188 F.R.D. 302 (N.D. Ill. 1999); Nielsen v. Dickerson, 98cv5909, 1999 WL 350649, 1999 U.S. Dist. LEXIS 8334 (N.D. Ill. May 20, 1999); Sledge v. Sands, 182 F.R.D. 255 (N.D. Ill. 1998); Shaver v. Trauner, 97cv1309, 1998 WL 35333712, 1998 U.S. Dist. LEXIS 19647 (C.D. Ill. May 29, 1998) report and recommendation adopted, 1998 WL 35333713, 1998 U.S. Dist. LEXIS 19648 (C.D. Ill. July 31, 1998); Carroll v. United Compucred Collections, Inc., 1:99cv0152, 2002 WL 31936511, 2002 U.S. Dist. LEXIS 25032 (M.D. Tenn. Nov. 15, 2002), report and recommendation adopted in part, 2003 WL 1903266, 2003 U.S. Dist. LEXIS 5996 (M.D. Tenn. Mar. 31, 2003) aff'd, 399 F.3d 620 (6th Cir. 2005); Wahl v. Midland Credit Mgmt., Inc., 243 F.R.D. 291 (N.D. Ill. 2007); Keele v. Wexler, -7- 95cv3483, 1996 WL 124452, 1996 U.S. Dist. LEXIS 3253 (N.D. Ill. Mar. 19, 1996), aff'd, 149 F.3d 589 (7th Cir. 1998); Miller v. Wexler & Wexler, 97cv6593, 1998 WL 60798, 1998 U.S. Dist. LEXIS FILED DATE: 1/10/2024 2:22 PM 2024CH00187 1382 (N.D. Ill. Feb. 6, 1998); Wilborn v. Dun & Bradstreet, 180 F.R.D. 347 (N.D. Ill. 1998); Arango v. GC Servs., LP, 97cv7912, 1998 WL 325257, 1998 U.S. Dist. LEXIS 9124 (N.D. Ill. June 11, 1998) (misleading collection letters); Avila v. Van Ru Credit Corp., 94cv3234, 1995 WL 41425, 1995 U.S. Dist. LEXIS 461 (N.D. Ill. Jan. 31, 1995), aff’d sub nom. Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996); Ramirez v. Palisades Collection LLC, 250 F.R.D. 366 (N.D.Ill. 2008); Cotton v. Asset Acceptance, 07cv5005, 2008 WL 2561103, 2008 U.S. Dist. LEXIS 49042 (N.D.Ill. June 26, 2008) (class certified); Carr v. Trans Union Corp., 94cv0022, 1995 WL 20865, 1995 U.S. Dist. LEXIS 567 (E.D. Pa. Jan. 12, 1995) (FDCPA class certified regarding defendant Trans Union's transmission of misleading collection notices to consumers); Colbert v. Trans Union Corp. 93cv6106, 1995 WL 20821, 1995 U.S. Dist. LEXIS 578 (E.D. Pa. Jan. 12, 1995) (same); Gammon v. GC Services, L.P., 162 F.R.D. 313 (N.D. Ill. 1995) (similar); Zanni v. Lippold, 119 F.R.D. 32, 35 (C.D. Ill. 1988); West v. Costen, 558 F. Supp. 564, 572-573 (W.D. Va. 1983) (FDCPA class certified regarding alleged failure to provide required "validation" notices and addition of unauthorized fees); Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995) (class certified in FDCPA action challenging bad check charges); Brewer v. Friedman, 152 F.R.D. 142 (N.D. Ill. 1993) (FDCPA class certified regarding transmission of misleading collection demands to consumers), earlier opinion, 833 F. Supp. 697 (N.D. Ill. 1993); Duran v. Credit Bureau of Yuma, Inc., 93 F.R.D. 607 (D. Ariz. 1982) (class certified in action complaining of unauthorized charges). Numerosity 29. Section 2-801(1) parallels the language of Federal Rule of Civil Procedure 23(a)(1); therefore, federal case law is instructive on the numerosity requirements under the Illinois Rules. Wood River Area Dev. Corp. v. Germania Fed. Sav. & Loan Ass’n, 198 Ill. App. 3d 445, 450, 555 N.E.2d 1150, 1153 (5th Dist. 1990). The numerosity requirement is satisfied if it is reasonable to conclude -8- that the number of members of the proposed class is greater than the minimum number required for class certification, which is about 10-40. Kulins v. Malco, 121 Ill. App. 3d 520, 530, 459 N.E.2d 1038 FILED DATE: 1/10/2024 2:22 PM 2024CH00187 (1st Dist. 1984) (19 and 47 members sufficient); Swanson v. American Consumer Industries, 415 F.2d 1326, 1333 (7th Cir. 1969) (40 class members sufficient); Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D. Ill. 1986) (10-29 members sufficient). 30. Illinois case law further indicates that “[t]he number of class members is relevant, not determinative.” Wood River Area Dev. Corp., 198 Ill. App. 3d at 450, 555 N.E. 2d at 1153. Where the class size is smaller, other factors may come into play to demonstrate that joinder is impractical, including: (1) geographical spread of class members, (2) ease of identifying and locating class members, (3) the knowledge and sophistication of class members and their need for protection, (4) the size of class members’ claims, and (5) the nature of the case. Id. at 450-51, 555 N.E. 2d at 1153- 54. 31. It is not necessary that the precise number of class members be known: "A class action may proceed upon estimates as to the size of the proposed class." In re Alcoholic Beverages Lit., 95 F.R.D. 321 (E.D.N.Y. 1982); Lewis v. Gross, 663 F.Supp. 1164, 1169 (E.D.N.Y. 1986). The Court may "make common sense assumptions in order to find support for numerosity." Evans v. United States Pipe & Foundry, 696 F.2d 925, 930 (11th Cir. 1983). "The court may assume sufficient numerousness where reasonable to do so in absence of a contrary showing by defendant, since discovery is not essential to most cases in order to reach a class determination. . . . Where the exact size of the class is unknown, but it is general knowledge or common sense that it is large, the court will take judicial notice of this fact and will assume joinder is impracticable." 2 Newberg on Class Actions (3d ed. 1995), §7.22. 32. In the present case, Plaintiff alleges, based on a practice of collecting loans made at rates exceeding the maximum permitted under Illinois law, that there are more than 40 class members, making them so numerous that joinder is impracticable. -9- 33. While discovery will be needed to determine the precise class size, it is reasonable to infer that numerosity is satisfied. Wood River Area Dev. Corp., 198 Ill. App. 3d at 450, 555 N.E.2d at FILED DATE: 1/10/2024 2:22 PM 2024CH00187 1153 (concurring with a leading scholar’s assertion that a class size of 40 clearly satisfies numerosity and that a class size of 25 likely satisfies numerosity); Swiggett v. Watson, 441 F.Supp. 254, 256 (D.Del. 1977) (an action challenging transfers of title pursuant to Delaware motor vehicle repairer's lien, the fact the Department of Motor Vehicles issued printed forms for such transfer was in of itself sufficient to show that the numerosity requirement was satisfied); Westcott v. Califano, 460 F. Supp. 737, 744 (D.Mass. 1978) (in action challenging certain welfare policies, existence of policies and 148 families who were denied benefits to which policies applied sufficient to show numerosity, even though it was impossible to identify which of 148 families were denied benefits because of policies complained of); Carr v. Trans Union Corp., supra (Fair Debt Collection Practices Act class certified regarding defendant Trans Union's transmission of misleading collection notices to consumers in which court inferred numerosity from the use of form letters); Colbert v. Trans Union Corp., supra (same). Common Questions and Predominance 34. A common question may be shown when the claims of the individual members of the class are based on the common application of a statute or they were aggrieved by the same or similar misconduct. McCarthy v. La Salle Nat'l Bank & Trust Co., 230 Ill. App. 3d 628, 634, 595 N.E.2d 149, 153 (1st Dist.1992). 35. In the present case, the predominant common questions are: i. Whether Defendant seeks to collect loans made by unlicensed entities at rates exceeding the maximum permitted by Illinois law; ii. Whether the attempted collection of such loans violates the FDCPA. -10- 36. Where a case involves “standardized conduct of the defendants toward members of the proposed class, a common nucleus of operative facts is typically presented, and the commonality FILED DATE: 1/10/2024 2:22 PM 2024CH00187 requirement . . . is usually met.” Franklin v. City of Chicago, 102 F.R.D. 944, 949 (N.D. Ill. 1984). 37. The only individual issue is the identification of the class members, a matter easily ascertainable from the files of Defendant. 38. Questions readily answerable from a party’s files do not present an obstacle to class certification. Heastie v. Community Bank, 125 F.R.D. 669 (N.D.Ill. 1989) (court found that common issues predominated where individual questions of injury and damages could be determined by "merely comparing the contract between the consumer and the contractor with the contract between the consumer and Community Bank"). Adequacy of Representation 39. The class action statute requires that the class representative provide fair and adequate protection for the interests of the class. That protection involves two factors: (a) the attorney for the class must be qualified, experienced, and generally able to conduct the proposed litigation; and (b) the representative must not have interests antagonistic to those of the class. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). 40. Plaintiff understands the obligations of a class representative, and has retained experienced counsel, as is indicated by Appendix B, which sets forth counsel's qualifications. 41. There are no conflicts between Plaintiff and the class members. Appropriateness of Class Action 42. Efficiency is the primary focus in determining whether the class action is an appropriate method for resolving the controversy presented. Eovaldi v. First Nat'l Bank, 57 F.R.D. 545 (N.D.Ill. 1972). It is proper for a court, in deciding this issue, to consider the ". . . inability of the poor or uninformed to enforce their rights, and the improbability that large numbers of class -11- members would possess the initiative to litigate individually." Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1165 (7th Cir. 1974). FILED DATE: 1/10/2024 2:22 PM 2024CH00187 43. In this case there is no better method available for the adjudication of the claims which might be brought by each individual consumer. The vast majority of consumers are undoubtedly unaware that their rights are being violated. In addition, the modest size of the claims makes it unlikely that consumers would be able to pay to retain counsel to protect their rights on an individual basis. 44. The special efficacy of the consumer class action has been noted by the courts and is applicable to this case: A class action permits a large group of claimants to have their claims adjudicated in a single lawsuit. This is particularly important where, as here, a large number of small and medium sized claimants may be involved. In light of the awesome costs of discovery and trial, many of them would not be able to secure relief if class certification were denied . . . . In re Folding Carton Antitrust Lit., 75 F.R.D. 727, 732 (N.D.Ill. 1977) (citations omitted).) Another court noted: Given the relatively small amount recoverable by each potential litigant, it is unlikely that, absent the class action mechanism, any one individual would pursue his claim, or even be able to retain an attorney willing to bring the action. As Professors Wright, Miller and Kane have discussed, in analyzing consumer protection class actions such as the instant one, 'typically the individual claims are for small amounts, which means that the injured parties would not be able to bear the significant litigation expenses involved in suing a large corporation on an individual basis. These financial barriers may be overcome by permitting the suit to be brought by one or more consumers on behalf of others who are similarly situated.' 7B Wright et al., §1778, at 59; see e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985) ('Class actions...may permit the plaintiff to pool claims which would be uneconomical to litigate individually.') The public interest in seeing that the rights of consumers are vindicated favors the disposition of the instant claims in a class action form. Lake v. First Nationwide Bank, 156 F.R.D. 615 at 628, 629 (E.D.Pa 1994). CONCLUSION 45. The Court should certify this action as a class action. -12- Respectfully submitted, FILED DATE: 1/10/2024 2:22 PM 2024CH00187 /s/Daniel A. Edelman Daniel A. Edelman Daniel A. Edelman Cassandra P. Miller Stephen J. Pigozzi EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603-1824 (312) 739-4200 (312) 419-0379 (FAX) Email address for service: courtecl@edcombs.com Atty. No. 41106 (Cook) -13- CERTIFICATE OF SERVICE I, Daniel A. Edelman, certify that I had a copy of this document placed for service with the FILED DATE: 1/10/2024 2:22 PM 2024CH00187 complaint. /s/Daniel A. Edelman Daniel A. Edelman -14- FILED DATE: 1/10/2024 2:22 PM 2024CH00187 APPENDIX A FILED DATE: 1/10/2024 2:22 PM 2024CH00187 FILED DATE: 1/10/2024 2:22 PM 2024CH00187 FILED DATE: 1/10/2024 2:22 PM 2024CH00187 APPENDIX B Atty. No. 41106 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION FILED DATE: 1/10/2024 2:22 PM 2024CH00187 ANTHONY BANAS, ) on behalf of Plaintiff and the class members ) described herein, ) ) Plaintiffs, ) ) vs. ) ) MIDWEST FIDELITY SERVICES, LLC, ) ) Defendant. ) DECLARATION OF DANIEL A. EDELMAN Daniel A. Edelman declares under penalty of perjury, as provided for by 735 ILCS 5/1-109, that the following statements are true: 1. Edelman, Combs, Latturner & Goodwin, LLC, has 5 principals, Daniel A. Edelman, Tara L. Goodwin, Julie Clark, Heather Kolbus, and Cassandra P. Miller, and four associates. Member James O. Latturner retired in 2020 and Cathleen M. Combs at the end of 2021. 2. Daniel A. Edelman is a 1976 graduate of the University of Chicago Law School. From 1976 to 1981 he was an associate at the Chicago office of Kirkland & Ellis with heavy involvement in the defense of consumer class action litigation (such as the General Motors Engine Interchange cases). In 1981 he became an associate at Reuben & Proctor, a medium-sized firm formed by some former Kirkland & Ellis lawyers, and was made a partner there in 1982. From the end of 1985 he has been in private practice in downtown Chicago. Virtually all of his practice involves litigation on behalf of consumers, through both class and individual actions. He is the author of the chapters on the “Fair Debt Collection Practices Act,” “Truth in Lending Act,” and “Telephone Consumer Protection Act” in Illinois Causes of Action (Ill. Inst. For Cont. Legal Educ. 2020 and earlier editions), author of Collection Litigation: Representing the Debtor (Ill. Inst. Cont. Legal Educ. 2008, 2011, 2014, 2019, 2022), author of Predatory Mortgage Lending and Servicing (Ill. Inst. for Cont. Legal. Educ. 2022), co-author of Rosmarin & Edelman, Consumer Class Action Manual (2d-4th