UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

NACOLA MAGEE and JAMES PETERSON, 

individually and on behalf of all others similarly 

situated,

Plaintiffs,

v.

PORTFOLIO RECOVERY ASSOCIATES, LLC,

 

 Defendant.

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Case No. 12-cv-1624

Judge John W. Darrah

MEMORANDUM OPINION AND ORDER

Plaintiffs Nicola Magee and James Peterson have brought this class action against 

Portfolio Recovery Associates, LLC (“PRA”) for alleged violations of the Fair Debt Collection 

Practices Act (“FDCPA”), 15 U.S.C. § 1692 et. seq. Plaintiffs have filed a motion to modify the 

class definitions of the classes that were certified on February 5, 2015. Defendant filed a 

response opposing Plaintiffs’ Motion and filed a Motion to Decertify the Classes. For the 

reasons stated below, Plaintiffs’ Motion is granted, and Defendant’s Motion is denied. 

BACKGROUND

PRA is a business that engages in the purchasing of defaulted debts originally owed to 

others and incurred for personal, family, or household purposes. (Am. Compl. ¶ 8.) Plaintiffs 

allege that PRA violated the FDCPA by sending letters demanding payment of time-barred debt 

without disclosing that the debt was time-barred and threatening credit reporting after a time that 

a debt can no longer be reported. (Am Compl. ¶¶ 45, 63.) Plaintiffs seek actual and statutory 

damages pursuant to the FDCPA. On February 5, 2015, the following two classes were certified 

in this matter:
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Class 1: (Count I – Misleading Settlement Offers on Time Barred Debts): 

(a) All individuals in Illinois and Indiana (b) to whom PRA (c) sent a letter that 

referred to a “settlement” seeking to collect a debt (d) which debt was (i) a credit 

card debt on which the last payment had been made more than five years prior to 

the letter in Illinois or (ii) a credit card debt in which the last payment had been 

made more than six years prior to the letter in Indiana and Wisconsin (e) which 

letter was sent on or after March 6, 2011 (one year prior to the filing of this 

action) and on or before March 26, 2012 (20 days after the filing of this action).

Class 2: (Count II – Threat of Credit Reporting): (a) All individuals with 

addresses in Illinois and Indiana (b) with respect to whom Defendant Portfolio 

Recovery Associates, LLC sent or cause to be sent a letter (directly or by an agent 

or attorney) (c) to collect a credit card debt (d) more than seven years after 

chargeoff based on defendant’s records (e) which letter referred to “trade line,” 

“credit report” or “credit reporting agencies” and (f) was sent at any time during a 

period beginning March 6, 2011 and ending August 26, 2012. 

(Dkt. 186.) Plaintiffs request that the class definitions of the certified classes be modified to only 

include those who actually paid in response to the collection letters, those who have not received 

a subsequent letter from PRA informing them that the debt is time-barred or no longer can be 

reported on their credit report, and those who have filed a lawsuit. Defendant filed a response in 

opposition as well as a Motion to Decertify the Classes. 

ANALYSIS

A district court has the authority to modify a class definition and retains the power to 

modify that definition at different stages in litigation. Schorsch v. Hewlett-Packard Co., 

417 F.3d 748, 750 (7th Cir. 2005); In re Motorola Sec. Litig., 644 F.3d 511, 518 (7th Cir. 2011); 

Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 322 (N.D. Ill. 1995). 

The two certified classes contain upwards of 400,000 people. (Dkt. 218.) Parties 

previously argued whether the classes could be certified because the monetary relief to class 

members would be de minimis. Plaintiffs argued that notice to the class alone constitutes 
3

substantial relief, as class members would be notified that their debt is past the statute of 

limitations or credit reporting period, or both. After conducting discovery in this case, Plaintiffs 

discovered that PRA revised its collection letters to contain language notifying the recipient that 

the debt at issue is time-barred1. (Dkt. 210.) Thus, many of the class members have already 

received notice. Plaintiffs argue that the value of notice is no longer an added benefit for those 

class members and that narrowing the class to those who have actually paid or those who have 

not yet been informed that their debts are time-barred or not subject to credit reporting, will 

increase the amounts paid to each class member. Defendant not only opposes Plaintiffs’ motion 

to modify class definition, but argues that the previously certified classes should now be 

decertified2. 

In its opposition to Plaintiffs’ Motion for Class Certification, Defendant argued that the 

classes as currently defined should not be certified because a potential for de minimis recovery 

by class members. Defendant renews this argument now as support for their motion to decertify 

the classes. Defendant further argues that Plaintiffs’ Motion is evidence that Plaintiffs’ counsel 

is inadequate and that Plaintiffs’ interests are antagonistic to those of the class members that 

 

1 Defendant contends that Plaintiffs made false representations to this Court regarding the 

timing of their discovery that PRA revised its letters. As evidence, Defendant notes that the 

plaintiff in Slick v. Portfolio Recovery Associates, LLC, N.D. Ill. 12-2562, alleged in her 

complaint that Plaintiffs’ counsel’s lawfirm was reviewing her case for a “potential 

co-counseling scenario.” However, Plaintiffs did not file an appearance in that case, have never 

represented that plaintiff, and did not draft or participate in the filing of the motion cited by 

defense counsel. 

2 Defendant argues that this “new” class was not pled in the Complaint and is in violation 

of Federal Rule of Civil Procedure 15(a). However, as Plaintiffs correctly point out, this “new” 

class has always been a part of this litigation and the discovery already conducted in this case. 

Further, as noted above, district courts have discretion to modify class definitions at many points 

in litigation prior to final judgment. 
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Plaintiffs are attempting to “abandon.” However, Plaintiffs’ proposed modification would 

appear to eliminate this concern. A modification to a more limited group would be consistent 

with Plaintiffs’ obligation to protect the best interests of the class, making the class size more 

manageable and allowing counsel to help those class members that may have suffered harm to 

receive a proportional recovery. This is not evidence that Plaintiffs’ counsel is inadequate. 

Defendant’s argument against eliminating those class members that have notice that their debts 

are time-barred is not persuasive. These class members have received what could be the most 

substantial part of their relief if they remained in the class.

Defendant also argues that changing Plaintiffs’ class definition would injure both 

Defendant and potential class members. Defendant contends that this modification would have a 

fundamental impact on the FDCPA claims of any class member that is removed from the class. 

Defendant also notes that Plaintiffs’ claim stopped the statute of limitations period for three 

years. If Plaintiffs had filed an amended complaint rather than a motion to modify class 

definition, many claimants would now be time-barred. Thus, Defendant claims Plaintiffs’ 

procedural decision to file a motion to modify class definition rather than amend their complaint 

will injure Defendant. Defendant fails to explain or otherwise support their assertion that 

narrowing the class would result in “serious impacts” on potential class members’ rights to 

“maintain an FDCPA claim under the tolling principles applicable to putative class claims”

resulting in an injury to PRA. While it is possible that the class could decrease if the statute of 

limitations period “clock” begins again, Defendant does not explain why this injury should form 

a basis for decertification of the classes. 
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Finally, Defendant contends that narrowing the class to members who made a payment 

after receipt of an allegedly deceptive letter requires an individualized determination as to the 

cause of any such payment, challenging whether the proposed modified class would satisfy the 

predominance requirement3. As noted in the previous order in this case, to prove a violation of 

15 U.S.C. § 1692 (e), a plaintiff must show that the debt collector’s statement was misleading or 

deceptive to an unsophisticated consumer. The individual issues of whether each class member 

was deceived by the letters at issue and made a payment due to that deception do not 

predominate over the common questions of whether the collection letters would mislead or 

deceive a unsophisticated consumer. The Seventh Circuit has held that “the fact that damages 

are not identical across all class members should not preclude class certification.” Butler v. 

Sears, Roebuck & Co., 727 F.3d 796, 801 (7th Cir. 2013). Further, “the need for individual 

damages determinations at [a] later stage of the litigation does not itself justify the denial of class 

certification.” Mullins v. Direct Digital, LLC, 2015 WL 4546159 (7th Cir., July 28, 2015). 

CONCLUSION

For the reasons discussed above, Plaintiffs’ Motion to Modify the Class Definition [210] 

is granted, and Defendant’s Motion to Decertify Classes [218] is denied. 

Date: October 8, 2015 ______________________________

JOHN W. DARRAH

United States District Court Judge

 

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Plaintiffs cite to several decisions to support its contention that “a consumer who pays 

money to a debt collector who engages in an FDCPA violation is entitled to get that money 

back.” Also, as noted in a previous order, Defendant’s liability in this case has not been 

conclusively established.