Chapman v. Bowman Heintz Boscia & Vician PC

Filing 19

OPINION AND ORDER re 18 Consent MOTION to Certify Class and for preliminary approval of class action settlement by Plaintiff Lou Ellen Chapman. ORDERING that this case be preliminarily certified as a class action. ORDERING Michael Greenwald of Gree nwald Davidson Radbil PPLC is appointed Class Counsel. The class administrator will mail the notice to the Class Members no later than 1/19/2016. Class Members who desire to be excluded from the class must send a written request for exclusion to Clas s Counsel no later than 2/29/2016. Class Members written objection to the fairness of this settlement to be filed with the Court no later than 2/29/2016. Motion for Final Approval and Attorney Fees Papers must be filed with the Court no later no later than 4/21/2016. Fairness hearing set for 5/12/2016 10:00 (Eastern Time) AM in US District Court - South Bend before Judge Jon E DeGuilio. Signed by Judge Jon E DeGuilio on 12/29/2015. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LOU ELLEN CHAPMAN,
individually and on behalf of
others similarly situated,
Plaintiff,
v.
BOWMAN, HEINTZ, BOSCIA
& VICIAN, P.C.,
Defendant.

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CAUSE NO. 2:15-CV-120 JD

OPINION AND ORDER
Now before the Court is the Plaintiff's Unopposed Motion for Preliminary Approval of
Class Action Settlement, filed by Plaintiff, Lou Ellen Chapman, on September 23, 2015 [DE 18].
The parties seek preliminary certification of a class, and the court's preliminary approval of the
class settlement as set forth in the Class Settlement Agreement [DE 18-1]. Additionally, the
parties ask the Court to appoint a class representative and class counsel, and to approve the
written Notice of Class Action Settlement [DE 18-1 at 16-21].
Lou Ellen Chapman ("Plaintiff") brings this action against Bowman, Heintz, Boscia &
Vician, P.C. ("Defendant") under the federal Fair Debt Collection Practices Act ("FDCPA"), 15
U.S.C. § 1692 et seq., for failure to properly provide her with disclosures required by 15 U.S.C.
§ 1692g(a)(4). Defendant denies any liability or that its practices violate the FDCPA. However,
the parties have reached an agreement to resolve this case whereby Defendant will create a

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common fund in the amount of $3,030.00, which would equal $15.00 for each member of the
settlement class. Defendant will also pay full statutory damages of $1,000 to Chapman, Class
Counsel's attorneys' fees and expenses within a proscribed range and as approved by the Court,
and the costs of administering the settlement and providing direct mail notice to each class
member. Finally, Defendant has agreed to ensure, going forward, that its initial debt collection
letters contain proper disclosures mandated by the FDCPA.
CLASS CERTIFICATION
This action seeks to recover monetary damages on behalf of the following proposed class
members:
(a) All persons with an Indiana address, (b) to whom Bowman, Heintz,
Boscia & Vician, P.C. mailed an initial debt collection communication
that stated: "If you notify this firm within thirty (30) days after your
receipt of this letter, that the debt or any portion thereof, is disputed, we
will obtain verification of the debt or a copy of the judgment, if any, and
mail a copy of such verification or judgment to you," (c) between March
30, 2014 and March 30, 2015, (d) in connection with the collection of a
consumer debt.
Chapman, the class representative, also stands to recover on her individual claim that Defendant
violated the FDCPA, 15 U.S.C. § 1692g(a)(4), by sending an initial debt collection letter that
failed to inform Plaintiff that Defendant need only have mailed verification of Plaintiff's alleged
debt, or a copy of the judgment, to her if she disputed the debt in writing [DE 18-1 at 1]. The
Court finds it has jurisdiction over this case pursuant to 15 U.S.C. § 1692k(d) and 28 U.S.C. §
1331.
Conditional certification of the class is sought under Federal Rule of Civil Procedure
23(a) and (b)(3). Federal Rule of Civil Procedure 23 governs the certification of class actions in

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federal court. It allows a member of a class to sue as a representative party on behalf of all the
class members if:
(1)
(2)
(3)
(4)

the class is so numerous that joinder of all members is impracticable;
there are questions of law or fact common to the class;
the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and
the representative parties will fairly and adequately protect the interests of the
class.

Fed. R. Civ. P. 23(a). If all of these prerequisites are met, a court must also find that at least one
of the subsections of Rule 23(b) is satisfied. Relevant to this case, Rule 23(b)(3) states:
the court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently
adjudicating the controversy. The matters pertinent to these findings include:
(A)

the class members' interests in individually controlling the prosecution or defense
of separate actions;

(B)

the extent and nature of any litigation concerning the controversy already begun
by or against class members;

(C)

the desirability or undesirability of concentrating the litigation of the claims in the
particular forum; and

(D)

the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3).
The United States Supreme Court has made clear that the district court is to perform a
"rigorous analysis" to determine that the prerequisites of Rule 23 are satisfied when a class is to
be certified because actual, not presumed, conformance with Rule 23(a) remains indispensable.
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160-61 (1982). For a class to be certified, each
requirement of Rule 23(a), that is, numerosity, commonality, typicality, and adequacy of
representation, must be satisfied, as well as one subsection of Rule 23(b). Fed. R. Civ. P. 23;
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Harper v. Sheriff of Cook Cnty., 581 F.3d 511, 513 (7th Cir. 2009). "Failure to meet any of the
Rule's requirements precludes class certification." Arreola v. Godinez, 546 F.3d 788, 794 (7th
Cir. 2008). A district court has broad discretion to determine whether certification of a class
action lawsuit is appropriate. Id.
Plaintiff's motion is unopposed, and the Court finds, that she has satisfied Rule
23(a)(1)–(4) and Rule 23(b)(3).
1.

Numerosity
The first requirement under Rule 23(a) is that the purported class be "so numerous that

joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). To be impracticable, joinder
need not be impossible, but instead must be shown to be inconvenient and difficult. See 32B Am.
Jur. 2d Federal Courts, When Joinder is Impracticable § 1608 (2014). When determining if
joinder of all class members is impracticable, the court may consider many factors, including:
the class size; judicial economy arising from the avoidance of a multiplicity of actions; the ease
of identification of members of the proposed class; the geographic dispersion of class members;
the inconvenience of trying individual suits; the nature of the action; the size of each plaintiff's
claim; the financial resources of the class members; requests for prospective injunctive relief
which would involve future class members; and any other factors relevant to the practicability of
joining all the class members. Id. A court must rely on simple common sense when determining
whether a class size meets the numerosity requirement. See Flood v. Dominguez, 270 F.R.D.
413, 417 (N.D. Ind. 2010) (citing Redmon v. Uncle Julio's of Ill., Inc., 249 F.R.D. 290, 294 (N.D.
Ill. 2008)). Generally speaking, when the putative class consists of more than 40 members,
numerosity is met, but there is nothing magical about that number. See id. (citations omitted).

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The Court agrees that Ms. Chapman has satisfied the numerosity requirement. Here, "Defendant
avers that there are 202 members of the class, including Ms. Chapman." [DE 18 at 4.] The class
members are readily ascertainable because Defendant can identify each class member by name
and last-known address. The Court finds that the class size, in addition to the fact that individual
claims are small enough to likely inhibit class members from pursuing their own claims [DE 37
at 2-3], renders joinder impracticable. Moreover, by joinder of each plaintiff, problems with
management and administration would be rendered extremely cumbersome and difficult, such as
by requiring service of separate notice and pleadings and entry of a separate order as to each
joinder. Joinder would tend to result in multiplicity and a waste of judicial resources, factors
which Rule 23 seeks to prevent. Accordingly, the numerosity requirement has been met.
2.

Commonality
The second requirement under Rule 23(a) is the need to have "questions of law or fact

common to the class." Fed. R. Civ. P. 23(a)(2). Claims of individual class members may arise
from a "common nucleus of operative fact," which is typically satisfied where the defendant
engaged in standardized conduct towards members of the proposed class. Keele v. Wexler, 149
F.3d 589, 594 (7th Cir. 1998). Class certification cannot be defeated simply because there are
some factual variances among the proposed members. Rosario v. Livaditis, 963 F.2d 1013, 1017
(7th Cir. 1992).
The commonality requirement is met because the potential class members share a
common, if not identical, nucleus of operative facts. The letters sent by Defendant are
essentially identical because each letter includes the sentence: "If you notify this firm within
thirty (30) days after your receipt of this letter, that the debt or any portion thereof, is disputed,

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we will obtain verification of the debt or a copy of the judgment, if any, and mail a copy of such
verification or judgment to you." Thus, each class member has the same claim against
Defendant arising from the letter, and each class member has a common legal question of
whether Defendant's initial debt collection letters failed to contain proper disclosures as
mandated by the FDCPA.
Accordingly, Chapman has satisfied the commonality requirement because the elements
of each cause of action will be common to all of the persons affected given Defendant's
standardized conduct towards the members of the Proposed Class. See, e.g., Lucas v. GC Servs.
L.P., 226 F.R.D. 337, 340 (N.D. Ind. 2005) ("Courts consistently have found a common nucleus
of operative facts if a defendant has allegedly directed standardized conduct toward the putative
class members or if the class claims arise out of standardized documents."); Agan v. Katzman &
Korr, P.A., 222 F.R.D. 692, 697 (S.D. Fla. 2004) ("Similarly, a plaintiff satisfies the
commonality requirement when all class members received the same collection letter"); Mann v.
Acclaim Fin. Servs., 232 F.R.D. 278, 284 (S.D. Ohio 2003) ("In FDCPA cases, where plaintiffs
have received similar debt collection letters . . . courts have found common questions of law or
fact sufficient to certify the class.").
3.

Typicality
The third requirement under Rule 23(a) is the need to show that "the claims or defenses

of the representative parties are typical of the claims or defenses of the class." Fed. R. Civ. P.
23(a)(3). The question of typicality is closely related to the question of commonality. Rosario,
963 F.2d at 1018. A claim is typical if it "arises from the same event or practice or course of
conduct that gives rise to the claims of other class members and . . . [is] based on the same legal

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theory." Id. Some factual variations may not defeat typicality, rather, the requirement is meant
to ensure that the named representative's claims have the same essential characteristics as the
claims of the class at large. Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006)
(citations omitted).
The Court is satisfied that Chapman has met the typicality requirement. Chapman and
the members of the class suffered from the common practice employed by Defendant by issuing
standardized initial debt collection letters which allegedly did not contain proper disclosures
mandated by the FDCPA. Therefore, Chapman has the same interests and suffered the same
injuries as the class members, and each member seeks identical relief. In sum, Chapman's claims
are typical of those of the class. See Lucas, 226 F.R.D. at 341 ("All of the class members' claims
arise from the same practice . . . which gave rise to Plaintiffs' claims, that is each time
Defendants sent a collection letter similar to that received by Plaintiffs, they allegedly violated
the Fair Debt Collection Practices Act. Thus, Plaintiffs' claims are typical of the class because
they arise from the same course of conduct and are based on the same general legal theory.");
Agan, 222 F.R.D. at 698 ("Parties seeking class certification have satisfied the typicality
requirement by showing that all prospective class members received a variation of the same
collection letter.").
4.

Adequacy of Representation
The fourth and final requirement of Rule 23(a) is that "the representative parties will

fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). Adequacy of
representation is composed of two parts: "the adequacy of the named plaintiff's counsel, and the
adequacy of representation provided in protecting the different, separate, and distinct interest" of

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the class members. Retired Chicago Police Ass'n v. City of Chi., 7 F.3d 584, 598 (7th Cir. 1993).
"A class is not fairly and adequately represented if class members have antagonistic or
conflicting claims." Rosario, 963 F.2d at 1018. Also, counsel for the named plaintiffs must be
experienced and qualified and generally be able to conduct the litigation. See Eggleston v. Chi.
Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 896 (7th Cir. 1981).
Chapman has been a model class representative who has diligently pursued the case since
its inception. The Court concludes that from all appearances Chapman will fairly and adequately
represent the class because she has a common interest in the success of the litigation.
Additionally, she has retained Greenwald Davidson Radbil PLLC, which appears to be a firm
with experience representing plaintiffs in class actions. See, e.g., Prater v. Medicredit, Inc.,
Case No. 4:14-cv-00159, 2015 WL 4385682 (E.D. Mo. July 13, 2015) (preliminarily approving
class action settlement and appointing Greenwald Davidson Radbil PLLC as class counsel);
Jones v. I.Q. Data Int'l, Inc., No. 1:14-cv-00130, 2015 WL 2088969, at *2 (D. N.M. Apr. 21,
2015)(same); Donnelly v. EquityExperts.org, LLC, No. 4:13-10017, 2015 WL 249522, at *2
(E.D. Mich. Jan. 14, 2015) (appointing Greenwald Davidson Radbil PLLC as class counsel and
approving settlement under FDCPA).
The Court believes that the class representative and Class Counsel will protect the due
process rights of class members whose rights will be adjudicated despite their absence.
Accordingly, the Plaintiffs have met the adequacy requirement and satisfied all of the Rule 23(a)
requirements for class certification.

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5.

Rule 23(b)(3)
In addition to meeting class certification requirements under Rule 23(a), the proposed

class must also satisfy the requirements of one of the three subsections of Rule 23(b). "A court
should endeavor to select the most appropriate subsection, not just the first linguistically
applicable one in the list." Jefferson v. Ingersoll Int'l, Inc., 195 F.3d 894, 898 (7th Cir. 1999).
Chapman sets forth how the Proposed Class satisfies all of the conditions of Rule 23(b)(3),
because the class seeks monetary damages, common issues to the class predominate, and a class
action is the superior method of resolving the controversy.
The United States Supreme Court has explained that the "predominance" and
"superiority" requirements of Rule 23(b)(3) serve to limit class certification to cases where "a
class action would achieve economies of time, effort, and expense, and promote . . . uniformity
of decision as to persons similarly situated, without sacrificing procedural fairness or bringing
about other undesirable results." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997)
(citation omitted). "Predominance" tests the "legal or factual questions that qualify each class
member's case as a genuine controversy" and is similar to Rule 23(a)(3)'s requirement of
typicality. Id. at 623. Here, the main issue before the Court is whether Defendant's initial debt
collection letters sent to Indiana consumes violate the FDCPA by failing to properly notify
consumers of their validation rights. This common issue predominates the litigation and satisfies
the predominance requirement. See, e.g., Jackson v. Nat'l Action Fin. Servs., Inc., 227 F.R.D.
284, 290 (N.D. Ill. 2005) (holding that "[a]s long as the letters that class members received are
very similar . . . the legal issue of whether those letters violate the FDCPA is predominate"); Day
v. Check Brokerage Corp., 240 F.R.D. 414, 419 (N.D. Ill. 2007) (certifying FDCPA class action

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and finding that predominance prong satisfied where similar debt collection letters were at
issue).
Relative to superiority, in assessing whether the requirement has been met, courts should
consider:
(A)
(B)
(C)
(D)

the class members' interests in individually controlling the prosecution or defense
of separate actions;
the extent and nature of any litigation concerning the controversy already begun
by or against class members;
the desirability or undesirability of concentrating the litigation of the claims in the
particular forum; and
the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3).
In the instant case, no individual class member has an interest in controlling the
prosecution of the action because the claims of all members are identical. The alternatives to the
class action vehicle are either no recourse for hundreds of class members, or numerous suits
which would result in the inefficient administration of the litigation. In certifying FDCPA
claims, Judge Young explained:
A class action is superior to all other methods in this case as it will
efficiently resolve a potentially large number of claims that share a similar
set of legal and factual issues. In the absence of class certification, the
courts could potentially be inundated with "many individual cases that
seek to litigate an essential core of the same legal and factual issues."
Lucas, 226 F.R.D. at 342. These separate actions would be "repetitive,
wasteful and an extraordinary burden on the courts[,]" so a class action is
necessary here. Tatz v. Nanophase Technologies Corp., No. 01-C-8440,
2003 WL 21372471, at *9 (N.D. Ill. June 13, 20013).
Even more, individual suits would be unlikely, as recipients of the
collection letter may be hesitant to prosecute individual claims without the
availability of the cost-sharing efficiencies of a class action. Indeed,
"individual recovery under the FDCPA can be relatively small, and many
consumers are unfamiliar with its protections, [so] a class action is the
best method for the fair and efficient adjudication of [this] issue [,] . . .
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where the underlying liability issue can be determined relative to the
whole class." Balogun, 2007 WL 2934886, at *8; see also Parker, 206
F.R.D. at 213 (finding class action a superior method because damages
awarded to individual class members may be too insignificant to provide
enough incentive for them to pursue their FDCPA claims individually).
At its core, a class action is the appropriate way to proceed in this action.
Selburg v. Virtuoso Sourcing Group, LLC, No. 1:11-cv-1458, WL 4514152, at *10 (S.D. Ind.
Sept. 29, 2012).
The interests of individual class members in controlling the prosecution of their claims
does not weigh against class certification. As in Selburg, it is doubtful that many individual
claims would be pursued in light of the expense of litigation and the fact that separate lawsuits
would be uneconomical for potential class members. In addition, there is no indication that other
litigation is already pending concerning the controversy, or that resolution of these claims in this
Court is undesirable. Further, no facts indicate that there will be any difficulty managing this
class action, especially in light of already identified class members, and the pending settlement.
The personal notice and opt-out requirements of Rule 23(b)(3) will further protect the interests of
those who will qualify as class members. Accordingly, resolution of the claims asserted in
Chapman's complaint by way of a class action would be superior to other available methods of
pursuing these claims.
Because the parties have demonstrated that certification is appropriate pursuant to Fed. R.
Civ. P. 23(a) and (b)(3), the Court ORDERS that this case be preliminarily certified as a class
action.
The class action consists of damages sought for the violation of the FDCPA, 15 U.S.C. §
1692 et seq., in particular, the allegation that Defendant failed to properly provide Indiana

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consumers with disclosures required by 15 U.S.C. § 1692g(a)(4). Specifically, the class
certified is comprised of:
(a) All persons with an Indiana address, (b) to whom Bowman, Heintz, Boscia &
Vician, P.C. mailed an initial debt collection communication that stated: "If you
notify this firm within thirty (30) days after your receipt of this letter, that the debt
or any portion thereof, is disputed, we will obtain verification of the debt or a
copy of the judgment, if any, and mail a copy of such verification or judgment to
you," (c) between March 30, 2014 and March 30, 2015, (d) in connection with the
collection of a consumer debt.
Rule 23 requires that a court certifying a class also appoint class counsel. Fed. R. Civ. P.
23(c)(1)(B), (g), and Chapman requests that her counsel be appointed Class Counsel [DE 18 at
8-9]. Class counsel must fairly and adequately represent the interests of the class. Fed. R. Civ. P.
23(a)(4). In appointing class counsel, the court must consider the following: "the work counsel
has done in identifying or investigating potential claims in the action; counsel's experience in
handling class actions, other complex litigation, and the types of claims asserted in the action;
counsel's knowledge of the applicable law; and the resources that counsel will commit to
representing the class." Fed. R. Civ. P. 23(g)(1)(A). The court may also consider "any other
matter pertinent to counsel's ability to fairly and adequately represent the interests of the class."
Fed. R. Civ. P. 23(g)(1)(B).
No doubt Michael L. Greenwald of Greenwald Davidson Radbil PPLC has put extensive
work into reviewing and investigating the potential claims in this case, and he and his firm have
experience in handling class action litigation. Additionally, Mr. Greenwald has demonstrated his
knowledge of the FDCPA and he has so far committed the resources necessary to representing
the class and administrating the proposed settlement. The Court believes that Mr. Greenwald
will fairly and adequately represent the interests of the class; and therefore, in compliance with

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Rule 23(g)(1), it is ORDERED that Michael Greenwald of Greenwald Davidson Radbil PPLC is
appointed Class Counsel.
CLASS NOTICE AND SETTLEMENT
For classes certified under Rule 23(b)(3), the following notice must be given to the class
members concerning the class certification:
[T]he best notice that is practicable under the circumstances, including individual
notice to all members who can be identified through reasonable effort. The notice
must clearly and concisely state in plain, easily understood language:
(i)
the nature of the action;
(ii)
the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv)
that a class member may enter an appearance through an attorney if the
member so desires;
(v)
that the court will exclude from the class any member who requests
exclusion;
(vi)
the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
Fed. R. Civ. P. 23(c)(2)(B); see Smith v. Shawnee Library System, 60 F.3d 317, 321 (7th Cir.
1995) (noting that class members of a Rule 23(b)(3) class must receive reasonable notice and an
opportunity to opt out, which is an absolute requirement for a court to exercise jurisdiction over
those class members) (citations omitted).
Regarding the settlement or compromise of class action claims, as presented by the
parties' proposed Settlement Agreement, Rule 23(e) states:
The claims, issues, or defenses of a certified class may be settled, voluntarily
dismissed, or compromised only with the court's approval. The following
procedures apply to a proposed settlement, voluntary dismissal, or compromise:
(1)
The court must direct notice in a reasonable manner to all class members
who would be bound by the proposal.
(2)
If the proposal would bind class members, the court may approve it only
after a hearing and on finding that it is fair, reasonable, and adequate.
(3)
The parties seeking approval must file a statement identifying any
agreement made in connection with the proposal.
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(4)

(5)

If the class action was previously certified under Rule 23(b)(3), the court
may refuse to approve a settlement unless it affords a new opportunity to
request exclusion to individual class members who had an earlier
opportunity to request exclusion but did not do so.
Any class member may object to the proposal if it requires court approval
under this subdivision (e); the objection may be withdrawn only with the
court's approval.

Fed. R. Civ. P. 23(e).
Preliminary approval requires only that the Court evaluate whether the proposed
settlement "is within the range of possible approval." Armstrong, 616 F.2d at 314 (internal
citation omitted). The Seventh Circuit has identified a number of factors used to assess whether
a settlement proposal is fundamentally fair, adequate, and reasonable: (1) the strength of
plaintiff's case compared to the terms of the proposed settlement; (2) the likely complexity,
length and expense of continued litigation; (3) the amount of opposition to settlement among
affected parties; (4) the opinion of competent counsel; and (5) the stage of the proceedings and
the amount of discovery completed. Synfuel Techns., Inc. v. DHL Express (USA), Inc., 463 F.3d
646, 653 (7th Cir. 2006) (quoting Isby, 75 F.3d at 1199). Here, while the Defendant denies
liability and the parties disagree about the merits, preliminary approval of the settlement is
appropriate to avoid the uncertainties of continued litigation. Griffin v. Flagstar Bancorp, Inc.,
No. 2:10-cv-10610, 2013 WL 6511860, at *3 (E.D. Mich. Dec. 12, 2013) ("Settlement provides
a certain and immediate benefit to the class members and outweighs the risk and cost of a trial on
the merits. The prospect of a trial necessarily involves the risk that Plaintiff would obtain little
or no recovery."). The litigation has been pending for six months, during which time, the parties
were able to assess the strengths and weaknesses of their respective positions. Here, the
proposed cash relief afforded by the settlement is $15 per class member. As explained by Judge

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Simon, "[a]lthough $20 . . . is not significant in a vacuum, a dollar today is worth a great deal
more than a dollar ten years from now . . . and a major benefit of the settlement is that class
members will obtain these benefits much more quickly than had the parties not settled." Swift v.
DirectBuy, Inc., Nos. 2:11-cv-401, 2:11-cv-415, 2:11-cv-417, 2:12-cv-45, 2013 WL 5770633, at
*5 (N.D. Ind. Oct. 24, 2013). Additionally, "even if the case reached trial, the class members
would not receive benefits for many years, if they received any at all." Id. In Swift, Judge
Simon found that payment of up to $20 per household "is an excellent result in this litigation."
Id.
Here, as pointed out by Chapman, the settlement provides cash relief to class members in
excess of the limit imposed by the FDCPA. The FDCPA limits statutory damages to a maximum
of one percent of Defendant's net worth. See 15 U.S.C. § 1682k(a)(2)(B) ("in the case of a class
action, (I) such amount for each named plaintiff as could be recovered under subparagraph (A),
and (ii) such amount as the court may allow for all other class members, without regard to a
minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net
worth of the debt collector"). By paying $15 to each class member, Defendant will pay a total of
$3,030, an amount that Chapman asserts exceeds 1 percent of Defendant's book value net worth.
This settlement appears to represent a fair, reasonable, and adequate settlement in light of the
possibility of protracted litigation and disputed issues of liability.
The Court having reviewed the Settlement Agreement and other submissions of the
parties, and being otherwise fully advised, HEREBY ORDERS, pursuant to Rule 23(e) of the
Federal Rules of Civil Procedure, that:

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1. The Court has jurisdiction over the subject matter of the Lawsuit and over all settling
parties hereto.
2. The representations, agreements, terms, and conditions of the parties' Class Settlement
Agreement [DE 18-1] and Exhibit A attached thereto [DE 18-1 at 15], are preliminarily approved
pending a final hearing on the Proposed Settlement as provided herein.
3. For the purposes of the Proposed Settlement only, the Court hereby preliminarily
certifies a plaintiff class, pursuant to Fed. R. Civ. P. 23(b)(3) (hereinafter referred to as the
"Class Members") with respect to the claims asserted in the Lawsuit, as follows:
(a) All persons with an Indiana address, (b) to whom Bowman, Heintz, Boscia & Vician, P.C.
mailed an initial debt collection communication that stated: "If you notify this firm within thirty
(30) days after your receipt of this letter, that the debt or any portion thereof, is disputed, we will
obtain verification of the debt or a copy of the judgment, if any, and mail a copy of such
verification or judgment to you," (c) between March 30, 2014 and March 30, 2015, (d) in
connection with the collection of a consumer debt.
4. Defendant represents that there are 202 Class Members, including Plaintiff.
5. Pursuant to Fed. R. Civ. P. 23, the Court appoints Plaintiff Lou Ellen Chapman as the
Class Representative. The Court also appoints Michael L. Greenwald of Greenwald Davidson
Radbil PLLC as Class Counsel.
6. The Court preliminarily finds that the Lawsuit satisfies the applicable prerequisites for
class action treatment under Fed. R. Civ. P. 23, namely:
A.

The Class Members are so numerous that joinder of all of them in the Lawsuit is
impracticable;

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B.

There are questions of law and fact common to the Class Members, which
predominate over any individual questions;

C.

The claims of the Plaintiff are typical of the claims of the Class Members;

D.

The Plaintiff and Class Counsel have fairly and adequately represented and
protected the interests of all of the Class Members; and

E.

Class treatment of these claims will be efficient and manageable, thereby
achieving an appreciable measure of judicial economy, and a class action is
superior to other available methods for a fair and efficient adjudication of this
controversy.

7. The Court preliminarily finds that the settlement of the Lawsuit, on the terms and
conditions set forth in the Settlement Agreement [DE 18-1] is in all respects fundamentally fair,
reasonable, adequate, and in the best interest of the Class Members, especially in light of: (1) the
strength of Plaintiff's case compared to the terms of the proposed settlement; (2) the likely
complexity, length and expense of continued litigation; (3) the opinion of competent counsel;
and (4) the stage of the proceedings and the discovery completed.
8. A third party class administrator acceptable to the parties will administer the
settlement and notification to Class Members. The class administrator will be responsible for
mailing the approved class action notice and settlement checks to the Class Members. All costs
of administration will be paid by Defendant separate and apart from the Settlement Fund. Upon
the recommendation of the parties, the Court hereby appoints the following class administrator:
First Class, Inc.

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9. The Court approves the form and substance of the Notice of Class Action Settlement,
attached to the Settlement Agreement as Exhibit A [DE 18-1 at 15]. The proposed form and
method for notifying the Class Members of the settlement and its terms and conditions meet the
requirements of Fed. R. Civ. P. 23(c)(2)(B) and due process, constitute the best notice
practicable under the circumstances, and constitute due and sufficient notice to all persons and
entities entitled to the notice. The Court finds that the proposed notice is clearly designed to
advise the Class Members of their rights. In accordance with the Settlement Agreement, the
class administrator will mail the notice to the Class Members as expeditiously as possible, but in
no event later than 20 days after the Court's entry of this order, i.e., no later than January 19,
2016. Additionally, if the proposed notice is returned as undeliverable, the class
administrator must make an attempt to locate those Class Members, and if necessary,
update the addresses for the Class Members through standard methodology that the class
administrator currently uses to update addresses.
10. Any Class Member who desires to be excluded from the class must send a written
request for exclusion to Class Counsel with a postmark date no later than 60 days after the
Court's entry of this order, i.e., no later than February 29, 2016. To be effective, the written
request for exclusion must state the Class Member's full name, address, telephone number, and
email address (if available), along with a statement that the Class Member wishes to be
excluded. Any Class Member who submits a valid and timely request for exclusion will not be
bound by the terms of the Settlement Agreement.
11. Any Class Member who intends to object to the fairness of this settlement must file a
written objection with the Court within 60 days after the Court's entry of this order, i.e., no later

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than February 29, 2016. Further, any such Class Member must, within the same time period,
provide a copy of the written objection to Class Counsel, attention: Michael L. Greenwald, Esq.,
Greenwald Davidson Radbil PLLC, 5550 Glades Road, Suite 500, Boca Raton, FL 33431; and
Counsel for Defendant, Jennifer Kalas, Hinshaw & Culbertson, LLP, 322 Indianapolis Blvd.,
Suite 201, Schererville, IN 46375.
12.

To be effective, a notice of intent to object to the Settlement must:
(a)

Contain a heading which includes the name of the case and case number;

(b)

Provide the name, address, telephone number and signature of the Class
Member filing the objection;

(c)

Be filed with the Clerk of the Court no later than 60 days after the Court
preliminarily approves the settlement;

(d)

Be sent to Class Counsel and counsel for Defendant at the addresses
designated in the Notice by first-class mail, postmarked no later than 60
days after the Court preliminarily approves the settlement;

(e)

Contain the name, address, bar number and telephone number of the
objecting Class Member's counsel, if represented by an attorney. If the
Class Member is represented by an attorney, he/she or it must comply with
all applicable laws and rules for filing pleadings and documents in the
U.S. District Court for the Northern District of Indiana; and

(f)

Contain a statement of the specific basis for each objection.

13. Any Class Member who has timely filed an objection may appear at the Settlement
Approval Hearing, in person or by counsel, to be heard to the extent allowed by the Court,
applying applicable law, in opposition to the fairness, reasonableness and adequacy of the
Settlement, and on the application for an award of attorneys' fees and costs.
14. The class administrator will mail a settlement check to each Class Member who does
not exclude himself or herself from the Class. Each Class Member will receive a pro-rata

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portion of the $3,030.00 common fund, in the amount of no less than fifteen dollars per Class
Member.
15. Defendant will pay to the Class Representative the sum of $1,000 as statutory
damages pursuant to the FDCPA.
16.

The Court will conduct a fairness hearing in the First Floor Courtroom of the

Robert A. Grant Federal Building and United States Courthouse, 204 S. Main Street, South
Bend, Indiana, at 10:00 AM (Eastern Time) on May 12, 2016, to review and rule upon the
following issues:
A.

Whether this action satisfies the applicable prerequisites for class action treatment
for settlement purposes under Fed. R. Civ. P. 23;

B.

Whether the proposed settlement is fundamentally fair, reasonable, adequate, and
in the best interest of the Class Members and should be approved by the Court;

C.

Whether a Final Order and Judgment, as provided under the Settlement
Agreement, should be entered, dismissing the Lawsuit with prejudice and
releasing the Released Claims against the Released Parties; and

D.
17.

To discuss and review other issues as the Court deems appropriate..
Attendance by Class Members at the Final Approval Hearing is not necessary.

Class Members need not appear at the hearing or take any other action to indicate their approval
of the proposed class action settlement. Class Members wishing to be heard are, however,
required to appear at the Final Approval Hearing. The Final Approval Hearing may be
postponed, adjourned, transferred, or continued without further notice to the Class Members.

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18. Submissions by the Parties, including memoranda in support of the proposed
settlement, responses to any objections, petitions for attorney's fees and reimbursement of costs
and expenses by Class Counsel, must be filed with the Court no later than 21 days prior to the
Final Approval Hearing, i.e., no later than April 21, 2016.
19. The Settlement Agreement and this Order will be null and void if any of the
following occur:
A.

The Settlement Agreement is terminated by any of the Parties for cause, or any
specified material condition to the settlement set forth in the Settlement
Agreement is not satisfied and the satisfaction of such condition is not waived in
writing by the Parties;

B.

The Court rejects any material component of the Settlement Agreement, including
any amendment thereto approved by the Parties; or

C.

The Court approves the Settlement Agreement, including any amendment thereto
approved by the Parties, but such approval is reversed on appeal and such reversal
becomes final by lapse of time or otherwise.

20. If the Settlement Agreement and/or this order are voided per ¶ 19 of this order, then
the Settlement Agreement will be of no force and effect and the Parties' rights and defenses will
be restored, without prejudice, to their respective positions as if the Settlement Agreement had
never been executed and this order never entered.
21. The Court retains continuing and exclusive jurisdiction over the action to consider all
further matters arising out of or connected with the settlement, including the administration and
enforcement of the Settlement Agreement.

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22. The Court sets the following schedule:
Date

Event

12/29/2015

Preliminary Approval Order Entered

1/19/2016

Notice Sent

2/29/2016

Deadline to Send Exclusion or File Objection

4/21/2016

Motion for Final Approval and Attorney Fees Papers Filed

5/12/2016

Final Approval Hearing Held

SO ORDERED.
ENTERED: December 29, 2015

/s/ JON E. DEGUILIO
Judge
United States District Court

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