Roundtree v. Bush Ross, P.A.

Filing 66

ORDER adopting 58 REPORT AND RECOMMENDATIONS, except as stated herein. Signed by Judge James D. Whittemore on 2/17/2015. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

LINDA ROUNDTREE,
Plaintiff,
v.

Case No: 8:14-cv-357-T-27AEP

BUSH ROSS, P.A.,
Defendant.
_________________________________/
ORDER
BEFORE THE COURT is Plaintiff’s Renewed Motion for Class Certification and
Appointment of Class Counsel (Dkt. 33), which Defendant opposes (Dkt. 44). Plaintiff was granted
leave to file a reply (Dkt. 49). Upon review of these filings and after a motion hearing, United States
Magistrate Judge Anthony E. Porcelli issued a Report and Recommendation (Dkt. 58)
recommending that Plaintiff’s Motion be granted. Defendant filed objections to the Report and
Recommendation (Dkt. 64), to which Plaintiff has responded (Dkt. 65). Upon consideration,
Defendant’s objections are OVERRULED and the Report and Recommendation is ADOPTED
except as stated herein as the opinion of the Court.
I.

INTRODUCTION
The factual background of the dispute is thoroughly discussed in the Report and

Recommendation (Dkt. 58) and is briefly recited here. Plaintiff Linda Roundtree owned and
occupied a unit in the North Bay Village Condominium Association. (Dkt. 33-6 ¶ 5). Defendant
Bush Ross, P.A. sent Roundtree a letter on February 12, 2013, alleging she was delinquent in her
account with the condo association and threatening to file a claim of lien and foreclose on the lien.

(Dkt. 1-2). The letter included the following language, which Roundtree alleges violated the Fair
Debt Collection Practices Act, 15 U.S.C. §1692 et seq:
Unless the entire sum is paid within thirty (30) days of your receipt of this letter, we
shall proceed with appropriate actions to protect the Association’s interests,
including, but not limited to the filing of a claim of lien and foreclosure thereon. If
a claim of lien is filed against your unit to collect the amounts stated hereinabove,
you will be responsible for the cost of recording the lien ($18.50), a title search
($25.00), and certified mail ($5.00 per unit owner per address), plus additional
attorney’s fees of approximately $200.00.
***
This is the only communication regarding this matter that you will receive prior to
the filing of a claim of lien. Any partial or lesser payment which is received after the
date of this letter will be applied in accordance with Florida Statute §718.116(3), and
you will be responsible for all additional attorney’s fees and costs. . . . Any further
communication regarding this matter shall be in writing for your own protection.
(Dkt. 1 ¶¶ 15-16).
On August 20, 2013, the Association filed a lawsuit in state court, signed by members of
Bush Ross, to foreclose on Roundtree’s unit. (Id. ¶ 17). Attached to the complaint was a “Notice
Required by the Fair Debt Collection Practices Act” (Dkt. 1-3), including the following language
which Roundtree alleges violated the FDCPA:
3.

The Debtor may dispute the validity of this debt, or any portion thereof,
within thirty (30) days of receipt of this notice. If the debtor fails to dispute
within thirty (30) days, the debt will be assumed valid by the creditor.

4.

If the Debtor notifies the creditor’s law firm within thirty (30) days from
receipt of this Notice that the debt, or any portion thereof is disputed, the
creditor’s law firm will obtain verification of the debt or a copy of a judgment
and a copy of the verification will be mailed to the Debtor by the creditor’s
law firm.

5.

If the creditor named herein is not the original creditor, and if the debtor
makes request to the creditor’s law firm within thirty (30) days of receipt of
this notice, the name and address of the original creditor will be mailed to the
debtor by the creditor’s law firm.

6.

Request pursuant to this notice may be made via telephone at (813)
2

204-6492, via facsimile at [phone], or via mail addressed to FAIR
DEBT COLLECTION, c/o Steven H. Mezer, Esquire, BUSH ROSS,
P.A., P.O. Box 3913, Tampa, FL 33601. (Dkt. 1 ¶¶ 18, 60).
Roundtree brought this purported class action, alleging the February 12, 2013 letter violated
the FDCPA by causing the least-sophisticated customer to waive his FDCPA rights and
overshadowing the required FDCPA notice. (Id. ¶¶ 31-36). Roundtree also contended the letter
inflated the debt owed by including Bush Ross’s fees and that the foreclosure threat was unfair. (Id.
¶¶ 39-42, 45-47, 49-51, 53-55). Finally, Roundtree alleged the August 20, 2013 notice included false
and misleading representations, among which was the process for responding to a lawsuit, and was
misleading her as to customers’ FDCPA rights. (Id. ¶¶ 57-63).
After extensive briefing and a motion hearing (Dkts. 57, 63-1), Judge Porcelli recommended
certifying the following three classes pursuant to Fed. R. Civ. P. 23:
The Overshadowing Class: All persons located in the State of Florida to whom, between
February 7, 2013 and February 6, 2014, Bush Ross, P.A. sent an
initial written communication, which was not returned as
undeliverable, in connection with an attempt to collect any alleged
consumer debt, in which the initial written communication stated as
follows:
Unless the entire sum is paid within thirty (30) days of your
receipt of this letter, we shall proceed with appropriate actions
to protect the Association’s interests, including, but not
limited to the filing of a claim of lien and foreclosure thereon.
and/or
This is the only communication regarding this matter that you
will receive prior to the filing of a claim of lien.
and/or
Any further communication regarding this matter shall be in
writing for your own protection.
3

The Fee Class:

All persons located in the State of Florida to whom, between
February 7, 2013 and February 6, 2014, Bush Ross, P.A. sent a
demand for payment for Bush Ross, P.A.’s fees and expenses
incurred in connection with its attempts to collect a debt from such
person.

The Lawsuit Class:

All persons located in the State of Florida to whom, between
February 7, 2013 and February 6, 2014, Bush Ross, P.A. sent a
“Notice Required by the Fair Debt Collections Practices Act” as part
of a lawsuit filed by Bush Ross, P.A. against such person. (Dkt. 58 at
21-22).

Bush Ross objects to the certification of all three classes, while Roundtree argues
certification is proper.
II.

STANDARD
A district court may accept, reject, or modify a magistrate judge’s report and

recommendation. 28 U.S.C. § 636(b)(1). Those portions of the report and recommendation to which
objection is made are accorded de novo review. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3).
Objections must “pinpoint the specific findings that the party disagrees with.” United States v.
Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see Leatherwood v. Anna’s Linens Co., 384 Fed.
App’x 853, 857 (11th Cir. 2010). In the absence of specific objections, there is no requirement that
findings be reviewed de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993).
Nevertheless, the district court reviews the report and recommendation for “clear error” even in the
absence of objections. Macort v. Prem, Inc., 208 Fed. App’x 781, 784 (11th Cir. 2006). Even if no
objections to the findings or recommendations have been filed, the district court may “undertake
‘further review . . . , sua sponte or at the request of a party, under a de novo or any other standard.”
Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir.2006) (quoting Thomas v. Arn, 474 U.S. 140, 154
(1985)).
4

III.

DISCUSSION
Bush Ross makes five objections to the Report and Recommendation: (1) whether each class

member’s debt is subject to the FDCPA is not a question subject to common proof; (2) the letters
sent to the purported class members are not uniform and the letter sent to Roundtree in particular is
defective; (3) common issues do not predominate over individualized issues related to Bush Ross’s
affirmative defenses; (4) individualized inquiries are needed to determine actual damages; and (5)
the proposed class members are not adequately ascertainable. The objections will be considered in
turn.
A.

Debts Incurred ‘Primarily for Personal, Family, or Household Purposes’

The FDCPA only applies to debts that are “primarily for personal, family, or household
purposes.” Oppenheim v. I.C. System, Inc., 627 F.3d 833, 837 (11th Cir. 2010) (quoting 15 U.S.C.
§ 1692a(5). Bush Ross argues, correctly, that proof that the debt satisfies those criteria is an essential
element of the FDCPA. Some of the letters and notices may have been sent to landlords who lease
their condominiums, rather than use them for “personal, family, or household purposes.” Bush Ross
contends that whether the debts are primarily for personal, family, or household purposes is not
capable of proof at trial through common, rather than individual, evidence, and therefore, individual
questions predominate over common questions.1
Plaintiff does not, and cannot, dispute that whether the debts are primarily for personal,
family, or household purposes is an essential element of a FDCPA claim. Plaintiff instead argues that

1

While Bush Ross’s contentions arguably relate to both the predominance requirement of Fed. R. Civ. P.
23(b)(3) and the commonality requirement of Rule 23(a), in practice the predominance requirement “is far more
demanding than the commonality . . . inquir[y] of Rule 23(a).” In re Photochromic Lens Antitrust Litig., No.
8:10-cv-00984-T-27EAJ, 2014 WL 1338605, at *16 (M.D. Fla. Apr. 3, 2014) (Whittemore, J.).

5

common questions predominate, namely whether Bush Ross’s collection letter, attempt to charge
consumers with its fees, and notice attached to the state court foreclosure complaints, violate the
FDCPA. Plaintiff contends that the necessity of individualized determinations and minor differences
among class members do not preclude class certification, citing a number of district court cases that
have certified FDCPA class actions based on similar debt collection letters and conduct. Plaintiff
also argues that it can easily be determined whether a debt is subject to the FDCPA, either on the
claims form or from public records.
Determining whether common issues predominate over individual issues, as required by Rule
23(b)(3), requires an analysis of the elements of the underlying claim. Erica P. John Fund, Inc. v.
Halliburton Co., 131 S. Ct. 2179, 2184 (2011); Klay v. Humana, Inc., 382 F.3d 1241, 1254 (11th
Cir. 2004). Although Roundtree need not show that each element of her claim is subject to common
proof,2 whether common issues predominate over individual issues “can only be determined after
considering what value resolution of the class-wide issue will have in each class member’s
underlying cause of action.” Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228, 1234 (11th
Cir. 2000).
While several courts have certified FDCPA classes despite objections that individual issues
related to classification of the debt preclude predominance, in most of those cases, the class
definition excluded non-consumer debts. See Walker v. Greenspoon Marder, P.A., No. 2:13-cv14487-KAM, Dkt. 78 at 8 (S.D. Fla. Jan. 6, 2015) (certifying FDCPA class of persons with “debt
incurred for personal, family, or household purposes”); Collins v. Erin Capital Management, LLC,
290 F.R.D. 689, 700 (S.D. Fla. 2013) (certifying FDCPA class where the “proposed class definition
2

Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 133 S.Ct. 1184, 1196 (2013).

6

limits the class to persons against whom attempts to collect debts incurred for personal, family, or
household purposes”); Hicks v. Client Services, Inc., No. 07-61822-CIV, 2008 WL 5479111 (S.D.
Fla. Dec. 11, 2008), at *10 (certifying FDCPA class of consumers who received a communication
“to collect a debt incurred for personal, family, or household purposes”); Marcarz v. Transworld
Systems, Inc., 193 F.R.D. 46, 58 (D. Conn. 2000) (certifying FDCPA class of consumers who
received communications that “concerned a non-business debt”); Swanson v. Mid Am, Inc., 186
F.R.D. 665, 669 (M.D. Fla. 1999) (certifying FDCPA class of consumers with debts “shown by
Defendants’ records to be primarily for personal, family, or household purposes, e.g.–medical
services”).3
The class definitions recommended by Judge Porcelli, with the possible exception of the
Overshadowing Class,4 do not limit class members to those whose debts were incurred for personal,
family, or household purposes. Accordingly, the class definitions will be revised to include only
debts incurred for personal, family, or household purposes.5 Bush Ross’s argument that “mini-trials”
would be necessary to determine whether the debts incurred were primarily for personal, family, or
household purposes is no longer a concern.6
After the exclusion of non-consumer debts from the class, Bush Ross’s remaining objections
relating to common proof are unavailing. Roundtree’s contentions, including that Bush Ross is a debt

3

But see Agan v. Katzmann & Korr, P.A., 222 F.R.D. 692, 702 (S.D. Fla. 2004) (certifying class of
consumers who received communication “to collect a debt incurred for a residential property assessment”).
4

The Overshadowing Class defines the class as receiving a communication in relation to “any alleged
consumer debt.” (Dkt. 58 at 21).
5

“Rule 23(c)(1) specifically empowers district courts to alter or amend class certification orders at any time
prior to a decision on the merits.” Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1273 (11th Cir. 2000).
6

Bush Ross’s related arguments about the ascertainability of class members are discussed infra.

7

collector within the meaning of the FDCPA, that Bush Ross engaged in collection activity, and that
its actions violated the FDCPA, are now “capable of classwide resolution—which means that
determination of [their] truth or falsity will resolve an issue that is central to the validity of each one
of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).
Bush Ross cites two cases denying class certification for FDCPA claims based on
predominance, but these cases are distinguishable.7 In Neves v. Nationwide Credit, Inc., No. 1:95-cv1532-GET, 1996 U.S. Dist. LEXIS 22241 (N.D. Ga. Mar. 20, 1996), the court rested its decision not
to certify a FDCPA class partly on the plaintiff’s adequacy of representation, including her “alarming
lack of knowledge” about the lawsuit, not an issue here. Id. at *6-8. The court also found a lack of
“predominant commonality,” based on the “uniquely individual task of determining whether the debt
. . . was incurred primarily for personal or business purposes.” Id. at *10. And the proposed class
in Neves applied to “consumer debts,” rather than the more specific and easily determinable test of
whether the debts were for personal, family, or household purposes. Id. at *3. Here, individual
inquiries about the nature of the debt will not predominate over common questions, as non-consumer
debts will be excluded from the class. Bush Ross also cites Lewis v. Jesse L. Riddle, P.C., No. 970542, 1998 U.S. Dist. LEXIS 20465 (W.D. La. Nov. 18, 1998), in which the court denied
certification based in part on the difficulty of determining whether debts were incurred by consumers
or businesses. Id. at *13-14. Lewis, however, is at odds with the weight of authority certifying
FDCPA class actions in similar situations. (See Dkt. 58 at 19-20 (collecting cases)).

7

Additionally, the overwhelming majority of courts that have considered challenges to certifying FDCPA
classes when the communications are allegedly identical have found Rule 23(b)(3) requirements met and certified
classes. (See Dkt. 58 at 18-20).

8

B.

Uniformity of Debt Collection Communications

Bush Ross’s second objection to the Report and the Recommendation is based on the
language in its form collection letter. According to Bush Ross, the letter typically stated: “Any
further communication regarding this matter should be in writing for your protection.” Roundtree’s
letter, however, was modified by an employee “without authorization” to state: “Any further
communication regarding this matter shall be in writing for your protection.” (Dkt. 45 ¶ 28)
(emphasis added). As Bush Ross no longer challenges numerosity, it is unclear how the alleged lack
of uniformity in the letters undermines the appropriateness of class treatment. If the letters the other
consumers received did not include the language in Roundtree’s letter (or the other language in the
definition of the Overshadowing Class), those consumers simply will not be members of the class.
And a decision on whether the ‘shall’ language violates the FDCPA would bind only those
consumers who received a letter that included that language. See Rule 23(c). Bush Ross’s second
objection will therefore be overruled.
C.

Individualized Defenses

Next, Bush Ross contends the presence of affirmative defenses, namely that some putative
class members may lack standing because they filed for bankruptcy after the complained of conduct,
that some class members have released Bush Ross, and that others are estopped from bringing
FDCPA claims because they asserted them in the lien foreclosure action, means that individualized
issues predominate over common questions. While some of these affirmative defenses may create
individual issues for some class members, the common issues of whether Bush Ross is subject to the
FDCPA and whether its actions violated the FDCPA predominate. See Allapattah Services, Inc. v.
Exxon Corp., 333 F.3d 1248, 1260 (11th Cir. 2003) (When “issues [related to the elements of the
9

claim] were subject to generalized proof and predominated over the individual issues raised by
[defendant’s] affirmative defenses, class certification was proper.”); Klay v. Humana, Inc., 382 F.3d
1241, 1254 (11th Cir. 2004) (“Under Rule 23(b)(3) it is not necessary that all questions of law or fact
be common, but only that some questions are common and that they predominate over the individual
questions.”).
D.

Damages

Bush Ross’s objection to class certification based on the difficulty of determining actual
damages is not well taken. As Judge Porcelli pointed out, courts have long “recognized that the
presence of individualized damages issues does not prevent a finding that the common issues in the
case predominate.” (Dkt. 58 at 19, quoting Allapattah Servs., 333 F.3d at 1261.). “Common issues
may predominate when liability can be determined on a class-wide basis, even when there are some
individualized damage issues.” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 139
(2d Cir. 2001) (collecting cases) (overruled in part on other grounds by In re Initial Public Offering
Securities Litig., 471 F.3d 24 (2d Cir. 2006)). Here, the damages issues raised by Bush Ross do not
preclude a finding of Rule 23(b)(3) predominance.
E.

Ascertainability of Class Members

Finally, Bush Ross challenges the ascertainability of class members, an “implicit”
requirement of Rule 23.8 See Bussey v. Macon County Greyhound Park, Inc., 562 Fed. App’x 782,
787 (11th Cir. 2014). “Before a district court may grant a motion for class certification, a plaintiff
seeking to represent a proposed class must establish that the proposed class is “adequately defined

8

Roundtree argues that Bush Ross failed to raise this argument before Judge Porcelli, thus waiving it.
However, Bush Ross did raise the argument in its brief to Judge Porcelli, albeit briefly, and therefore will be
considered. (See Dkt. 44 at 28).

10

and clearly ascertainable.”” Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)
(quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)).9 A class is identifiable “if its
members can be ascertained by reference to objective criteria.” Bussey, 562 Fed. App’x at 787
(quoting Fogarazzo v. Lehman Bros., Inc., 263 F.R.D. 90, 97 (S.D.N.Y. 2009)). Further, those
objective criteria should be subject to an “administratively feasible” analysis, meaning that
“identifying class members is a manageable process that does not require much, if any, individual
inquiry.” Id. (quotation omitted).
Here, Bush Ross maintains records of its collection letters and their recipients, which should
provide sufficient information to ascertain the individuals who received the language which allegedly
violated the FDCPA. (See Dkt. 45 ¶¶ 9, 15-16, 21; Dkt. 31-2 (referencing necessity of file-by-file
review to respond to Roundtree’s propounded discovery)). Although Bush Ross’s files may not
include evidence of whether the recipients incurred the debts for “personal, family, or household
purposes,” this information is available through other channels, including publicly-available
homestead records, claims forms, and affidavits of class members. See Collins, 290 F.R.D. at 700
(finding that claims forms and additional investigation at the damages stage can determine whether
an individual’s debt was incurred for personal or business purposes); Hicks, 2008 WL 5479111, at
*6 (“Several courts have ruled that a debt collector’s lack of information regarding the types of debts
it collected does not preclude class certification.”). The objection to ascertainability is therefore
overruled.

9

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

11

IV.

CONCLUSION
1.

Defendant’s objections to the Report and Recommendation (Dkt. 64) are

OVERRULED.
2.

The Report and Recommendation (Dkt. 58) is ADOPTED as the opinion of the

Court, except to the extent stated in this Order, for all purposes, including for appellate review.
3.

The following classes are CERTIFIED:
a.

The Overshadowing Class: All persons located in the State of Florida to
whom, between February 7, 2013 and
February 6, 2014, Bush Ross, P.A. sent an
initial written communication, which was not
returned as undeliverable, in connection with
an attempt to collect any alleged debt incurred
for personal, family, or household purposes, in
which the initial written communication stated
as follows:
Unless the entire sum is paid within
thirty (30) days of your receipt of this
letter, we shall proceed with
appropriate actions to protect the
Association’s interests, including, but
not limited to the filing of a claim of
lien and foreclosure thereon.
and/or
This is the only communication
regarding this matter that you will
receive prior to the filing of a claim of
lien.
and/or
Any further communication regarding
this matter shall be in writing for your
own protection.

12