) FUND V LLC, and TATE & KIRLIN  ) 17. On or about June 1, 2015, Tate sent plaintiff, on First Financial’s behalf, the letter attached as Exhibit A.  18. Exhibit A  19. is a form letter regularly used by Tate to collect for First Financial. Exhibit A  20. On or about August 7, 2015, Tate sent plaintiff, on First Financial’s behalf, the is a form intended for use as the first letter Tate sends to a consumer. letter attached as Exhibit B.  21. Exhibit B  22. is a form letter Tate regularly uses to collect for First Financial. Exhibits A-B between September 20, 2009 and September 26, 2009, more than five years prior to the date of  the letters. seek to collect a medical debt incurred at Weiss Memorial Hospital  23. No payments were made on the account after October 2009.  24. The debt was for non-elective services performed more than five years prior to the date of the letters.  25. Any such debt was incurred for personal, family, or household purposes,  and not for business purposes.  26. A debt for non-elective medical services is not one governed by a written contract. Even if the patient signs a consent form prior to services being performed, (a) the extent  and cost of the services ultimately required and (b) the amount covered by insurance cannot be  definitively known prior to performance, so the contract cannot be one wholly in writing.   4  27. The applicable Illinois statute of limitations is therefore five years, 735 ILCS 5/13-205; Portfolio Acquisitions, L.L.C. v. Feltman, 391 Ill.App.3d 642, 909 N.E.2d 87 (1st Dist.  2009).  28. Exhibits A-B offer a settlement or “discount.”  They state that paying will “satisfy  your account.”  Exhibit B adds that “We are not obligated to renew this offer.”   29. Tate regularly sends Exhibits A-B to collect non-elective medical bills that are  more than five years and one month since the date of service or last payment by the consumer,  including such debts allegedly owned by First Financial. 30. Plaintiff incorporates paragraphs 1-29.  31. Exhibits A-B imply that the alleged debt is legally enforceable.  32. Nothing in any of the correspondence Defendants sent disclosed that the debt was  barred by the statute of limitations or not legally enforceable.  33. It is Defendants’ policy and practice to send and cause the sending of letters  seeking to collect time-barred debts that (a) offer settlements and (b) do not disclose that the debt  is time-barred.  34. The Federal Trade Commission has determined that “Most consumers do not know their legal rights with respect to collection of old debts past the statute of limitations . .  . . When a collector tells a consumer that she owes money and demands payment, it may create  the misleading impression that the collector can sue the consumer in court to collect that debt.”  (http://www.ftc.gov/opa/2012/01/asset.shtm)  35. In early 2012, the FTC entered into a consent decree with Asset Acceptance, one  of the largest debt buyers in the United States, requiring that it disclose to consumers when it is  5 attempting to collect debts that are barred by the statute of limitations. United States of America  (For the Federal Trade Commission)  v. Asset Acceptance, LLC, Case No. 8:12-cv-182-T-27EAJ  (M.D.Fla.).  36. On October 1, 2012, the Consumer Financial Protection Bureau, which has taken  over much of the FTC’s enforcement responsibility and has been granted rule-making authority  with respect to debt collection, the Federal Deposit Insurance Corporation, the Federal Reserve  Board, and the Office of the Comptroller of the Currency entered into consent orders with three  American Express-related entities requiring disclosure that debts they attempt to collect were  time-barred.  2012-CFPB-0002; 2012-CFPB-0003; 2012-CFPB-0004. The orders require that  “the Bank shall continue to provide disclosures concerning the expiration of the Bank’s litigation  rights when collecting debt that is barred by the applicable state statutes of limitations . . . .”   (2012-CFPB-0002, p. 6 of 35, 2012-CFPB-0003, p. 5 of 28.  37. The October 1, 2012 orders further require disclosure of “all material conditions,  benefits and restrictions concerning any offer of settlement. . . .” (2012-CFPB-0002, p. 7 of 35,  2012-CFPB-0003,  p. 6 of 28). Thus, they recognize that “settlement offers” that fail to disclose  material information may be misleading.  38. On January 30, 2013, the FTC issued its report, The Structure and Practices of the  Debt Buying Industry, available at http://www.ftc.gov/os/2013/01/ debtbuyingreport.pdf.  The  report reaffirms its position in the United States of America v. Asset Acceptance, LLC, No. 8:12- cv-182-T-27EAJ (M.D. Fla. 2012), American Express Centurion Bank (FDIC-12-315b, FDIC- 12-316k, 2012-CFPB-0002), American Express Bank, FSB (2012-CFPB-0003) and American  Express Travel Company, Inc. (2012-CFPB-0004) cases, that a defendant may violate the  6 FDCPA by sending a collection letter demanding payment of a time barred debt without  disclosing that the debt was time barred.  39. The report cites to a study (Timothy E. Goldsmith & Natalie Martin, Testing  Materiality Under the Unfair Practices Acts: What Information Matters When Collecting Time- Barred Debts?, 64 Consumer Fin. L.Q. Rep. 372 (2010)) that establishes the disclosure that a  debt is time barred in a debt collection letter is material to the consumer.   40. Courts have also held that the offer of a settlement on a time-barred debt is misleading. Buchanan v. Northland Group, Inc., 776 F.3d 393 (6th Cir. 2015); McMahon v.  LVNV, LLC, 744 F.3d 1010 (7th Cir. 2014).  41. Defendant engaged in unfair and deceptive acts and practices, in violation of 15  U.S.C. §§1692e, 1692e(2), 1692e(5), 1692e(10), and 1692f, by sending consumers letters in the  form of  Exhibits A-B, offering to settle time-barred debts without disclosure of that fact.  42. Section 1692e provides: § 1692e. False or misleading representations [Section 807 of P.L.]  A debt collector may not use any false, deceptive, or misleading  representation or means in connection with the collection of any debt.   Without limiting the general application of the foregoing, the following  conduct is a violation of this section: . . . (2) The false representation of-- (A) the character, amount, or legal status of any debt; . . .  (5) The threat to take any action that cannot legally be taken or  that is not intended to be taken. . . . (10) The use of any false representation or deceptive means to  collect or attempt to collect any debt or to obtain information  concerning a consumer. . . . 7  43. Section 1692f provides: § 1692f. Unfair practices [Section 808 of P.L.]  A debt collector may not use unfair or unconscionable means to collect or  attempt to collect any debt. . . .  44. Plaintiff brings this claim on behalf of two classes, pursuant to Fed.R.Civ.P. 23(a)  and 23(b)(3).    45. The Tate class consists of (a) all individuals with Illinois addresses (b) to whom  defendant Tate (c) sent a letter offering to settle or discount (d) a medical debt on which the last  payment or activity had occurred more than five years and one month  prior to the letter, (e) as to  which defendant cannot produce a written agreement specifying the dollar amount of the debt  and agreeing to pay it (f) which letter was sent on or after a date one year prior to the filing of  this action and on or before a date 21 days after the filing of this action.  46. The First Financial class consists of (a) all individuals with Illinois addresses (b)  who were sent on behalf of First Financial (by Tate or anyone else) (c) a letter offering to settle  or discount (d) a medical debt on which the last payment or activity had occurred more than five  years and one month  prior to the letter, (e) as to which defendant cannot produce a written  agreement specifying the dollar amount of the debt and agreeing to pay it (f) which letter was  sent on or after a date one year prior to the filing of this action and on or before a date 21 days  after the filing of this action.  47. On information and belief, based on the use of form letters, the class members are  so numerous that joinder of all members is not practicable. 8  48. There are questions of law and fact common to the class members, which common questions predominate over any questions relating to individual class members.  The  predominant common question is whether defendants’ letters violate the FDCPA when sent to  collect a time-barred debt.  49. Plaintiff’s claim is typical of the claims of the class members.  All are based on  the same factual and legal theories.  50. Plaintiff will fairly and adequately represent the class members.  Plaintiff has  retained counsel experienced in class actions and FDCPA litigation.  51. A class action is superior for the fair and efficient adjudication of this matter, in  that: a. Individual actions are not economically feasible; b. Members of the class are likely to be unaware of their rights; c. Congress intended class actions to be the principal enforcement  mechanism under the FDCPA. WHEREFORE, the Court should enter judgment in favor of plaintiff and the class  members and against defendant for: (a) Statutory damages; (b) Actual damages, including all amounts paid on time-barred debts; (c) Attorney’s fees, litigation expenses and costs of suit; and (d) Such other and further relief as the Court deems proper. /s/ Daniel A. Edelman       Daniel A. Edelman 9 Daniel A. Edelman Cathleen M. Combs James O. Latturner Catherine C. Charpie