The defendants-appellants, Norman Wex-ler and Wexler & Wexler (collectively, “the Wexlers”), appeal from the order of the district court granting class certification to the plaintiff-appellee, Karen Keele, in an action arising out of the Wexlers’ debt collection practices, allegedly violative of the federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Colorado Fair Debt Collection Practices Act (“CFDCPA”), Colo.Rev.Stat. § 12-14-101 et seq. More specifically, they claim that Keele did not suffer the same injury as the class members she seeks to represent and, in the alternative, that certain transactions at issue herein were “non-eonsensual,” and thus not covered by the FDCPA. We affirm.
I. BACKGROUND
On July 30, 1994, Keele, a Colorado resident, wrote a $85.26 personal check to a Wal-Mart discount store in Littleton, Colorado, as payment for her purchases. Her bank subsequently declined to honor the check for want of sufficient funds. Wal-Mart retained the Wexler & Wexler law firm of Chicago, Illinois, to contact Keele and seek collection of the alleged $85.26 in outstanding debt.
Acting on behalf of Wal-Mart, Wexler & Wexler sent Keele several threatening “debt collection” letters in late 1994. The first of these correspondences, dated November 2, 1994, informed Keele that she would have to pay $117.76 — the sum of the $85.26 dishonored check, a $20.00 service charge, and a $12.50 collection fee — “at once” in order to avoid being sued by Wal-Mart. It read further, in pertinent part:
Your conduct to date has been outrageous. Not only have you unlawfully caused our client to be damaged by passing a worthless check(s), but you have also refused and still persist in your refusal to make restitution.
YOU ARE ABOUT TO BE TREATED IN A MANNER THAT WILL CAUSE YOU TO THINK TWICE BEFORE YOU WRITE ANOTHER WORTHLESS CHECK. OUR CLIENT HAS INSTRUCTED THAT WE NOTIFY YOU THAT YOU ARE GOING TO BE SUED UNLESS REPAYMENT IS FORTHCOMING AT ONCE....
Wexler & Wexler’s second letter, sent approximately one month later, December 1, 1994, was even more scathing. Keele was notified that she had only five days in which to remit payment of the $117.76; if she failed to do so, legal action would be taken against her forthwith. “You have exhausted our patience and we do not intend to be put off any longer,” Wexler & Wexler wrote. The letter went on to warn her:
THIS IS A FIVE DAY NOTICE
Unless payment in full is made to this office at once or suitable substitute arrangements are agreed upon, we intend to place this matter in the hands of a local attorney’s office. Furthermore, we will instruct them to:
1. Notify all local credit reporting agencies that you are a hopelessly delinquent debtor so that others may be protected from dealing with you.
* * *
You must act at once while this matter is still in our hands; once we institute these proceedings, you will be required to pay all of the costs and fees involved with litigation. This letter is an attempt to collect a debt and any information obtained may be used for that purpose.
Wexler & Wexler’s threats apparently were effective. Keele promptly sent a check to the firm in the amount of $105.26 — the $117.76 demanded less the $12.50 “collection fee.”
On June 13,1995, Keele filed a class action complaint against Norman Wexler, Mitchell Wexler and Wexler & Wexler, on behalf of all Colorado residents who received debt collection letters like the ones she was sent on
On July 19, 1995, Keele filed a motion for class certification. Then, in August of 1995, Mitchell Wexler moved for, and was granted, summary judgment. 3 This left only two defendants remaining in the action, Norman Wexler and’his law firm, Wexler & Wexler. The district court eventually issued an order on March 18, 1996, granting Keele’s motion to certify the class consisting “of all Colorado residents who have received collection letters from defendants within the relevant time period.” 4 Several months later, the parties agreed to the entry of a consent decree and final judgment in the case. The defendants, while denying any liability of wrongdoing, changed the language of their debt collection letters. They also expressly retained the right to appeal the court’s order granting class certification. The trial judge awarded Keele $1,000 in statutory damages, the Colorado Legal Aid Foundation $4,000 in statutory damages as a cy pres remedy for the settlement class, $14,250 of actual damages to the class, and $17,500 to Keele’s attorneys for fees and costs.
II. ISSUES
The defendants-appellants advance three issues for our review. Initially, they contend that Keele, who did not pay the $12.50 collection fee, does not have standing to represent a class of persons seeking actual damages under the FDCPA arising out of their (the defendants’) alleged illicit demand for such collection fees. For the same reason, the Wexlers claim that Keele does not satisfy the “commonality” and “typicality” requirements for class certification under Fed.R.Civ.P. 23. And lastly, the appellants contend that the district court erroneously certified the class because the FDCPA covers only “consensual” transactions, and transactions involving individuals who write checks, knowing they will be dishonored, are by their nature not consensual.
III. DISCUSSION
The Federal Rules of Civil Procedure provide the federal district courts with “broad discretion” to determine whether certification of a class-action lawsuit is appropriate.
See Mira v. Nuclear Measurements Corp.,
A. Standing
“To have standing to sue as a class representative it is essential that a plaintiff must be a part of that class, that is, he must possess the same interest and suffer the
From a factual standpoint, it is far from clear whether the defendants are correct in asserting that Keele did not pay the collection fee. There is no doubt that Keele sent the Wexlers a payment in the amount of $105.26, equal to the sum total of the $85.26 dishonored check plus Wal-Mart’s $20.00 service charge. This $105.26 is all Keele owed Wal-Mart, and she does not contest that figure. She contends, however, that the Wexlers retained $12.50 of her $105.26 payment, and as such, according to Wal-Mart’s records, she still owes Wal-Mart $12.50. In other words, Keele argues that every member of class A or B who paid an amount exceeding the value of their dishonored check contributed, albeit unknowingly, to the defendants’ illegal collection fee.. The district judge felt it unnecessary to decide whether a benefit to the Wexlers was tantamount to actual damage to Keele because the injuries she and the class members alleged were the receipt of the debt collection letters, not the payment of the $12.50 collection fee. We-likewise will not consider this question, as it has no bearing upon Keele’s standing to represent classes A and B. She, like the members of those classes, received the Wexlers’ letters, both purported to be in violation of the FDCPA and CFDCPA. It is thus irrelevant whether or not she paid the collection fee.
As noted above; to satisfy the standing requirement in a class action lawsuit, the class representative must possess the “same interest and suffer the same injury” as the individuals he or she seeks to represent.
See Schlesinger,
The FDCPA does not require proof of actual damages as a precursor to the recovery of statutory damages.
6
See Bartlett v. Heibl,
B. Satisfaction of Rule 23 of the Federal Rules of Civil Procedure
Rule 23 of the Federal Rules of Civil Procedure recites four threshold requirements applicable to all federal-court class actions: (1) numerosity (the class must be so large “that joinder of all members is impracticable”); (2) commonality (there must exist “questions of law or fact common to the class”); (3) typicality (named parties’ claims or defenses “are typical ... of the class”); and (4) adequacy of representation (the representative must be able to “fairly and adequately protect the interests of the class”).
See Amchem Products, Inc. v. Windsor,
— U.S. -, -,
“A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2).”
Rosario v. Livaditis,
Whether Keele’s claims are typical of those of the class members she represents is closely related to the commonality inquiry.
See Rosario,
Lastly, the Wexlers argue that, because the FDCPA reaches only consensual transactions, class certification is improper to the extent that there is no way of knowing which class members who wrote dishonored cheeks to Wal-Mart engaged in consensual transactions with the merchant. If a customer intended that his or her check would be dishonored, the defendants reason, he or she could not have been party to a consensual transaction. As such, they go on to state, individual questions of fact predominate over any common ones. We disagree.
Our point of contention with the defendants’ position stems from the same case upon which they rely,
Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C.,
As we explained in
Bass,
neither the text nor underlying legislative history of the FDCPA lends itself to the recognition of a fraud exception. Indeed,
nothing
in the Act makes inquiry into the debtor’s intent at the time he or she writes a subsequently-dishonored check. Its language focuses primarily, if not exclusively, on the conduct of debt collectors, not debtors. Absent some textual directive in the FDCPA, we will not alter that focus, for our task is to interpret the words of Congress, not add to them.
See Wilson v. United States,
We see no need to repeat the
Bass
opinion in its entirety. The reasoning in that case stands on its own, as does its conclusion. “Absent an explicit showing that Congress intended a fraud exception to the Act, the wrong occasioned by debtor fraud is more appropriately redressed under the statutory and common law remedies already in place, not by a judicially-created exception that selectively gives a green light to the very abuses proscribed by the Act.”
Bass,
For these reasons, we hold that the trial judge properly granted class certification to Keele in her class action lawsuit against the Wexlers. The judgment of the district court is affirmed.
AFFIRMED.
Notes
. The complaint sought to hold Norman and Mitchell Wexler vicariously liable as principals of Wexler & Wexler.
. The Colorado legislature allows only persons "licensed as a collection agency pursuant to article 14 of title 12, C.R.S.” to impose a charge for collection costs. See C.R.S. § 13-21-109. None of the defendants are licensed as such.
. The district court granted summary judgment in Mitchell Wexler's favor, finding that he was not a partner in Wexler & Wexler and that he had not participated in the allegedly illegal conduct.
. The class period for violations of the FDCPA begins one year prior to the date of filing suit. The CFDCPA class period runs from two years before the commencement of the action.
. The four classes Keele seeks to represent may be categorized, to wit: classes A and B include all Colorado residents to whom the defendants sent collection letters in the form of the November 2 and December 1, 1994, correspondences to Keele, respectively; class C consists of all Colorado residents to whom the defendants mailed collection letters which threatened suit; and class D is made up of all Colorado residents to whom the defendants sent collection letters generally. The district court, although having ruled that Keele could properly represent all four classes, consolidated the classes into one large class consisting of all Colorado residents who received the Wexlers’ collection letters (i.e., the class D definition). For purposes of clarity, we will refer to the classes by their original designations (i.e., A, B, C, and D).
. Because the CFDCPA "is patterned on the Federal Fair Debt Collection Practices Act,”
Commercial Serv. of Perry, Inc. v. Fitzgerald,
. Of course, as we explained in
Bass,