Usry v. Equityexperts.org, LLC
Filing
121
ORDER granting 93 Motion to Certify Class. The Court CERTIFIES the proposed class and subclasses pursuant to FRCP 23(b)(3) as defined in 93 . Plaintiffs shall submit a proposed notice to the Court for approval. The Court appoints the appearing attorneys on behalf of Plaintiffs as class counsel. The Court appoints Plaintiffs Usry and Daniel as class representatives as directed herein. The parties are directed to submit a joint report relating to the status of discovery and other scheduling matters. Signed by Chief Judge J. Randal Hall on 3/5/2020. (pts)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
SARAH USRY and DANIEL DARNELL,
on behalf of themselves and
all others similarly situated.
*
Plaintiffs,
*
*
V.
EQUITYEXPERTS.ORG, LLC d/b/a
*
EQUITY EXPERTS; MICHAEL NOVAK;
JACQUELINE GALOFARO; and MARK
BREDOW,
CV 116-010
*
*
*
*
Defendants.
*
ORDER
Before
the
certification.
Court
is
Plaintiffs'
(Doc. 93.)
amended
motion
for
class
Having undertaken a detailed analysis
of the briefs and the record, the Court GRANTS Plaintiffs' motion.
I. BACKGROUND
This action is based on Defendants' alleged violation of the
Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 at
seq., violation of the Georgia usury statutes, O.C.G.A. § 7-4-1 at
sag., and Georgia law prohibiting unjust enrichment in seeking
delinquent dues on behalf of Georgia homeowners associations.
(Second Am. Compl., Doc. 91, SI 1.)
A. Factual History
Plaintiffs,
homeowners
and
proposed
members
Association (''Ashbrooke").
93, at 8-10.)
class
of
representatives,
the
Ashbrooke
are
Georgia
Property
Owners
(Third Am. Mot. to Certify Class, Doc.
Over approximately three years, from 2012 through
2015, Ashbrooke charged its members an annual assessment of $115.
(Id. at 8, 10; Usry Aff., Doc. 79-5, 1 7; Darnell Aff., Doc. 796, ^ 7.)
Plaintiffs each missed an
during the relevant time period.
SI 9.)
annual assessment payment
(Usry Aff., SI 9; Darnell Aff.,
Following the missed payments. Defendant EquityExperts.org
("Defendant
Equity
Experts")
recover the annual fee.
initiated
collection
efforts
to
(Usry Aff., SI 9; Darnell Aff., SI 9.)
Plaintiffs allege that Michael Novak, Jacqueline Galofaro, and
Mark Bredow ("Individual Defendants," collectively with Defendant
Equity Experts, "Defendants") were responsible for developing and
implementing the practice Defendant Equity Experts employed to
collect outstanding payments.
Per
Ashbrooke's
(Second Am. Compl., SI 34.).
Declaration
of
Rights,
Restrictions,
Affirmative Obligations and Conditions Applicable to the Ashbrooke
Subdivision
("Declaration"), Ashbrooke
is
authorized
to impose
certain penalties against members failing to pay required fees.
(Decl., Doc. 79-1, at 5.)
Pursuant to the Declaration, amounts
due and payable "shall bear interest from the due date at the rate
of eighteen percent (18%) per annum."
(Id. at 8.)
The Association may also impose a reasonable late charge
upon delinquent assessments for each installment that
remains unpaid. Such interest and late charges shall be
added to and become part of the annual assessment to
which such Lot is subject. The Association may foreclose
the lien of the delinquent assessment against the Lot,
and the Association may bring an action at law against
the Owner personally obligated to pay the delinquent
assessments.
In either event, the Owner shall also be
liable to the Association for all costs and attorney's
fees
which
the
Association
shall
incur
in
connection
with the collection of such delinquent amounts.
(Id
In 2013, Ashbrooke contracted with Defendant Equity Experts
to collect late and unpaid assessments.
(Equity Experts Community
I
Association Collection Agreement, Doc. 79-3, at 1.)
The agreement
authorizes Defendant Equity Experts, ''pursuant to Limited powers
of
Attorney,
to
collect
the
delinquent
assessments
from
the
responsible party, plus any and all costs of collection charged by
[Defendant
structure
annually."
Equity
Experts],
addendum
which
(Id.)
as
is
outlined
updated
in
and
our
standard
distributed
fee
semi-
The affixed addendum at the time of signing
included a fee structure: (1) "Intent to Record Lien Letter" -
"$50"; (2) "Preparation of Lien & Draft to Owner" - "$75"; (3)
"Constant Contact" - "$75"; (4) "Notice of Intent to Foreclose and
Draft to Owner" - "$75"; (5) "Publication of Foreclosure" - "$450
Publication Estimate."
(Id. at Addendum A.)
As for the proposed class representatives. Defendant Equity
Experts mailed correspondence to Plaintiff Usry dated June 28,
2013.
(Galofaro Dep., Doc. 79-4, Ex. 12.)
that the
delinquent account
had
Equity Experts for collection.
The letter announced
been turned
(Id.)
over to
Defendant
The letter continued to
notify Plaintiff Usry that her current balance was $443.65 and, if
she did not pay the balance within thirty days of the letter, the
balance would increase to $838.65.
The $443.65 balance included
the ^^Beginning balance from association" — ''^$173.65"; ^'Standard
Account Set-Up" — '*^$17 5.00"; and ^^Intent to Record Lien package"
— ''^$95.00."
(Galofaro Dep., Ex. 18.)
Defendant Equity Experts
followed through on its warning in the June 28, 2013 letter, and
on September 9, 2013, Defendant Equity Experts applied a ^^Lien
recording and discharge package" charge in the sum of $395.00.
(Id.)
At that point. Plaintiff Usry owed $838.65.
(Id.)
Over the next three months. Defendant Equity Experts added
charges for the ^^Constant Contact Service Package" and the "Pre-
Foreclosure
Package" in
respectively.
Experts
(Id.)
claimed
that
the
amounts
of $750.00
and
$1,495.00,
As of December 2, 2013, Defendant Equity
Plaintiff
Usry
owed
$3,083.65.
(Id.)
Approximately one year later, by letter dated December 11, 2014,
Defendant Equity Experts informed Plaintiff Usry that her balance
was $3,199.60 and if she did "not pay within [ten] days, balance
may be at least: $6,644.60."
(Id. Ex. 13.)
The second proposed class representative. Plaintiff Darnell,
experienced similar circumstances following his failure to timely
pay his 2013 annual assessment of $115.00.
9,
11.)
Plaintiff
Darnell settled the
Equity Experts for $1,351.00.
(Darnell Aff.,
account
with
1,
Defendant
(Id. ^ 14.)
Plaintiffs offer Defendants' sequence of charges imposed upon
receiving a delinquent account as justification for their claims:
Account Setup Fee - $175.00
Intent to Record a Lien Notice - $95.00
Recording of the Lien Notice - $395.00
Constant Contact Communication Package - $750.00
Intent to Foreclose Notice - $1,495.00
Post Intent to Foreclose Notice - $100 monthly, in perpetuity
Managing the Foreclosure Litigation Fee - $3,445.00
(Third Am. Mot. to. Certify Class, at 6-7.)
Plaintiffs argue that
the fees charged are not contained ""in any of the covenants of any
Georgia neighborhood for which Defendant [Equity Experts] provides
collection
services"
and
^^the
homeowners
from
whom
Defendant
collects and attempts to collect delinquent assessments have no
agreements or contracts with Defendant agreeing to what Defendant
might charge."
(Id. at 5; see also Galofaro Dep., at 73, 81.)
According to Plaintiffs, Defendants' methods used to collect the
debts
violate
the
FDCPA.
(Second
Am.
Compl.,
SISI 50-59.)
Additionally, Plaintiffs claim that Defendants' charged fees are
disguised interest on the debt exceeding 16% per annum in violation
of Georgia usury laws.
(Id.
60-68.)
Finally, Plaintiffs allege
unjust enrichment resulting from Defendants' collection of amounts
to which they were not entitled.
(Id.
69-75.)
Plaintiffs assert Defendants' common practice for charging
and collecting certain amounts resulted in injury to numerous
potential class members.
Accordingly, Plaintiffs purport this
case is appropriate for class adjudication.
B. Procedural History
Plaintiff Usry initially filed the present action in the
Superior Court of Columbia County, Georgia, but Defendant removed
the case to this Court.
(Notice of Removal, Doc. 1.)
On August
15, 2016, Plaintiff Usry filed her motion for leave to file an
amended complaint to add Plaintiff Darnell as a named plaintiff
and proposed class representative.
(Doc. 30.)
The Court granted
the motion (Doc. 34), and Plaintiffs filed their first amended
complaint on September 8, 2016.
(Doc. 35.)
Plaintiffs filed a
motion for leave to file their second amended complaint on April
5, 2018, seeking to add the Individual Defendants.
(Doc. 82.)
The Court granted Plaintiffs' motion (Doc. 90), and Plaintiffs
filed their second amended complaint on March 18, 2019.
(Doc.
91.)
Plaintiffs filed their first motion to certify class on June
14, 2017.
(Doc. 61.)
On January 11, 2018, the Court ordered
Plaintiffs to refile their motion to certify class but ordered
that the amended motion to certify class should not contain any
substantive changes.
(Doc. 76.)
In compliance with the Court's
Order, Plaintiffs filed their first amended motion to certify class
the next day.
(Doc. 77.)
In their first amended motion to certify class, Plaintiffs
asked the Court to certify the following general class:
All natural persons in Georgia to whom Equity Experts
sent collection letters asserting claims for delinquent
assessments, interest, and fees in violation of the
FDCPA and the Georgia usury statute while residing in
the State of Georgia (hereinafter the "General Class
Members").
(First. Am. Mot. to Certify Class, Doc. 77, at 17.)
Plaintiffs
also proposed class definitions for three putative subclasses:
a. All natural persons in Georgia to whom Equity Experts
sent
collection
communications
seeking
to
collect
illegal interest or other sums not owed (hereinafter the
"Illegal Interest Class Members"); and,
b. All natural persons in Georgia against whom Equity
Experts has filed a lien and/or lawsuit asserting claims
for delinquent
residing in the
lawsuit or lien
the "Injunction
assessments, interest, and fees while
State of Georgia and against whom the
remains pending and unpaid (hereinafter
Class Members"); and,
c. All natural persons in Georgia from whom Equity
Experts received any payment arising from collection
efforts of assessments by Equity Experts which included
usurious interest charged in violation of the Georgia
usury statutes and illegal fees charged in violation of
the FDCPA while residing in the State of Georgia
(hereinafter the "Unjust Enrichment Class Members").
(Id. at 1-2.)
Before the Court reached the explicit requirements
of Federal Rule of Civil Procedure 23, it denied Plaintiffs' motion
on the implied requirement of ascertainability.
Order,
Doc.
78.)
Specifically,
the
Court
(Feb. 16, 2018
determined
that
Plaintiffs' general class and two of the subclasses were defined
as fail-safe classes.
(Id. at 6-8.)
The Court denied the motion
to certify class without prejudice and permitted Plaintiffs the
opportunity to correct the class definitions.
(Id. at 8.)
Plaintiffs filed their second amended motion to certify class
on March 16, 2018.
(Second Am. Mot. to Certify Class, Doc. 79.)
The second amended motion defined the general class as:
All natural persons in Georgia to whom, while residing
in Georgia, Equity Experts sent collection letters
asserting claims for delinquent assessments, where the
interest and/or fees, exceed sixteen percent (16%) per
annum of the delinquent assessment. (hereinafter the
''General Class Members").
(Id. at 1.)
Plaintiffs also revised the putative subclasses and
expanded the number of subclasses from three to four:
a. All natural persons to
Georgia, Equity Experts sent
seeking to collect interest
sixteen percent (16%) per
assessment.
whom, while residing in
collection communications
and/or fees in excess of
annum of the delinquent
(hereinafter the "Illegal Interest Class
Members"); and,
b. All natural persons against whom, while residing in
Georgia, Equity Experts has filed, or threatened to
file, a lien and/or lawsuit asserting claims for
interest and/or fees in an amount in excess of sixteen
percent (16%) per annum of the delinquent assessment,
(hereinafter the "Injunction Class Members"); and,
c. All natural persons from whom, while residing in
Georgia, Equity Experts received any payment of interest
and/or fees in excess of sixteen percent (16%) per annum
of the delinquent assessment.
(hereinafter the "Unjust
Enrichment Class Members"); [and,]
d. All natural persons from whom, while residing in
Georgia, Equity Experts sought payments in excess of
sums
stated
in
the
governing
HOA
reasonable
costs
of collection.
''Excess Sums Class Members").
(Id. at 2.)
class
agreement
plus
(hereinafter
the
Again, the Court denied Plaintiffs' motion to certify
without
prejudice
finding
that
determining
membership was not administratively feasible.
the
class
(Mar. 12, 2019
Order, Doc. 90, at 12-15.)
Plaintiffs filed their third amended motion to certify class
shortly
thereafter.
(Third
Am.
Mot.
to Certify
Class.)
The
present motion defines the putative class as:
All natural persons in Georgia to whom, while owning a
home in Georgia, Equity Experts sent collection letters
asserting claims for delinquent assessments, where the
interest and/or fees, exceed sixteen percent (16%) per
annum of the delinquent assessment.
(hereinafter the
"General Class Members").
(Id. at 2.)
The third amended motion to certify class also revised
the definitions of the putative subclasses:
a. All natural persons to whom, while owning a home in
Georgia, Equity Experts sent collection communications
seeking to collect interest and/or fees in excess of
sixteen percent (16%) per annum of the delinquent
assessment.
(hereinafter the "Illegal Interest Class
Members"); and,
b. All natural persons against whom, while owning a home
in Georgia, Equity Experts has filed, or threatened to
file, a lien and/or lawsuit asserting claims for
interest and/or fees in an amount in excess of sixteen
percent (16%) per annum of the delinquent assessment,
(hereinafter the "Injunction Class Members"); and,
c. All natural persons from whom, while owning a home in
Georgia, Equity Experts received any payment of interest
and/or fees in excess of sixteen percent (16%) per annum
of the delinquent assessment.
(hereinafter the ^^Unjust
Enrichment Class Members"); [and,]
d. All natural persons from whom, while owning a home in
Georgia, Equity Experts sought payments in. excess of
sums stated in the governing
HOA agreement plus
reasonable
costs
of collection.
"Excess Sums Class Members").
(Id. at 2-3.)
(hereinafter
the
Plaintiffs request that the Court appoint both
Plaintiffs Usry and Darnell as class representatives of the General
Class, the Illegal Interest Class, and the Excess Sums Class.
at 3 n.2.)
(Id.
Plaintiff Usry seeks appointment as representative of
the Injunction Class, and Plaintiff Darnell seeks appointment as
representative of the Unjust Enrichment Class.
(Id.)
Defendants
again oppose certification on several grounds.
II. DISCUSSION
A. Class Certification Standard
"The
district
court
has
whether to certify a class."
broad
discretion
in
Washington v. Brown & Williamson
Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992).
court's
discretion,
however,
framework of [R]ule 23."
determining
"must
be
The district
exercised
within
the
Vega v. T-Mobile USA, Inc., 564 F.3d
1256, 1264 (11th Cir. 2009) (citation and internal quotation'marks
omitted).
The class certification is proper only if "the trial
court
satisfied,
is
after
a
rigorous
analysis,
prerequisites of Rule 23 . . . have been satisfied."
10
that
the
Gen. Tele.
Co. of Sw. V. Falcon, 457 U.S. 147, 161 (1982).
Such an analysis
frequently overlaps ^'with the merits of the plaintiff's underlying
claim."
Comcast
Corp.
v.
Behrend,
569 U.S.
27,
33-34
(2013)
(citation omitted). ''"Although the trial court should not determine
the merits of the plaintiffs' claim at the class certification
stage, the trial court can and should consider the merits of the
case to the degree necessary to determine whether the requirements
of Rule 23 will be satisfied."
Vega, 564 F.3d at 1266 (citations
omitted).
Certification
""satisfy
an
under
implicit
Rule
23
requires
ascertainability
that
the
requirement,
proponent
the
four
requirements listed in Rule 23(a), and the requirements listed in
any of Rule 23(b)(1), (2), or (3)."
Karhu v. Vital Pharm., Inc.,
621 F. App'x 945, 946 (11th Cir. 20.15) (citing Little v. T-Mobile
USA,
Inc.,
691
requirements of
F.3d
1302,
1304
Rule
23(a) are
(11th
Cir.
commonly
2012)).
known
The
as ""numerosity,
commonality, typicality, and adequacy of representation."
564
F.3d at 1265 (citation omitted).
four
Vega,
Additionally, Plaintiffs
move for certification pursuant to Rule 23(b)(3).
Rule 23(b)(3)
requires the proponent to satisfy the additional requirements of
""predominance" and ""superiority."
Id.
Plaintiffs must satisfy
the certification requirements not only for the general class, but
also for the putative subclasses.
Fed. R. Civ. P. 23(c)(5) (""When
appropriate, a class may be divided into subclasses that are each
11
treated as a class under this rule."); Johnson v. Am. Credit Co.
of Ga.;. 581 F.2d 526, 532 (5th Cir. 1978) (interpreting former
Rule 23(c)(4)(B)) (''A subclass . . . must independently meet all
of [R]ule 23's requirements for maintenance of a class action.")
'"The
proof."
1233
party
seeking
class
certification
has
the
burden
of
Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225,
(11th
Cir.
2016)
(emphasis
omitted).
Doubts
related
to
satisfaction of the standard are resolved against certification.
See id. (^^All else being equal, the presumption is against class
certification
because
class
actions
are
an
exception
to
our
constitutional tradition of individual litigation.").
B. Implicit Certification Requirement - Ascertainability
''[A]
plaintiff seeking- to represent a proposed class must
establish that the proposed class is adequately defined and clearly
ascertainable."
Carriuolo v. Gen. Motors Co., 823 F.3d 977, 984
(11th Cir. 2016) (citation and internal quotation marks omitted).
"An identifiable class exists if its members can be ascertained by
reference to objective criteria."
Park,
Inc., 562
F.
App'x
782,
Bussey v. Macon Cty. Greyhound
787
(11th
Cir.
2014)
(citation
omitted).
The
Eleventh
Circuit
recently
acknowledged
a
split
among
Circuit Courts of Appeal as to whether plaintiff must demonstrate
an
"administratively
membership.
feasible"
method
for
determining
class
Ocwen Loan Servicing, LLC v. Belcher, No. 18-90011,
12
2018 WL 3198552, at *3 {11th Cir. June 29-, 2018).
However, "[i]n
the past, this court has stated that a class is not ascertainable
unless the class definition contains objective criteria allowing
class members to be identified in an administratively feasible
way."
Karhu, 621 F. App'x at 946 (citing Bussey, 562 F. App'x at
787).
Although
the
Eleventh
Circuit
refrained from taking a
position on the administrative feasibility circuit split, Ocwen
Loan Servicing, 2018 WL 3198552, at *3, both sides address the
requirement
consider
in
their
whether
briefing.
^'identifying
Accordingly,
class
members
the
is
Court
a
will
manageable
process that does not require much, if any, individual inquiry."
Bussey, 562 F. App'x at 787 (citation omitted).
Certification
is
also denied
for lack
of
ascertainability
where the proposed class constitutes a fail-safe class. "The issue
of fail-safe classes has not yet been expressly addressed by the
Eleventh Circuit," but "lower courts in the Eleventh Circuit have
cautioned against certifying fail-safe classes."
Etzel v. Hooters
of Am., LLC, 223 F. Supp. 3d 1306, 1315 (N.D. Ga. 2016) (citation
and
internal quotation
marks
omitted).
Although
not squarely
deciding the issue, the Eleventh Circuit recently warned against
the "risk of promoting so-called 'fail-safe' classes."
DirecTV, LLC, 942 F.3d 1259, 1277 (11th Cir. 2019).
Cordoba v.
"A fail-safe
class is a class whose membership can only be ascertained by a
determination of the merits of the case because the case is defined
13
in terms of the ultimate question of liability."
695 F.3d 360, 369-70 (5th Cir. 2012).
"shields the
judgment.
they
are
judgment."
putative
In re Rodriguez,
A fail-safe class improperly
class members from
receiving
an
adverse
Either the class members win or, by virtue of losing,
not
in
the
class
and,
therefore,
not
bound
by
the
Randleman v. Fidelity Nat^l Title Ins. Co., 646 F.3d
347, 352 (6th Cir. 2011).
"So, the class definition assumes what
it ostensibly seeks to prove."
Etzel, 223 F. Supp. 3d at 1316
(citation omitted).
1. Fail-Safe Class
Defendant
Equity
Experts
passively
argues
"Plaintiffs'
proposed amended class definitions still [d]o not cure the ^fail
safe' proposed classes, and class certification should be denied
on that fact alone." (Def.'s Resp. Opp'n Third Am. Mot. to Certify
Class, Doc. 104, at 4.)
In the Court's Order dated March 12, 2019,
the Court found that the former proposed classes were not fail
safe
classes.
(Mar.
12,
2019
Order,
at
11-12.)
Plaintiffs'
alteration of the class definitions from residency to ownership
does not impact the former fail-safe analysis.
Defendant
Equity
Experts
somewhat
challenges
whether
the
proposed classes are fail-safe because Plaintiffs must prove that
the account is a "debt" and the class member is a "consumer" under
the FDCPA.
As discussed in the Court's February 16, 2018 Order,
a fail-safe class is defined in terms of the ultimate question of
14
liability.
(Feb. 16, 2018 Order, at 6 (citing In re Rodriguez,
695 F.3d at 369-70).)
Nothing in the proposed class definitions
requires a finding that the account is a "debt" or the proposed
class member is a "consumer" under the FDCPA before the proposed
member may join the various classes.
Moreover, even accepting
Defendant Equity Experts's argument as true, a finding that the
account is a "debt" and the proposed class member is a "consumer"
does not go to the ultimate question of liability, which is whether
Defendant Equity Experts violated the FDCPA.
The proposed class
definitions are not fail-safe classes.
2. Objective Criteria & Administrative Feasibility
Next,
classes
on
grounds.
Defendant
Equity
objective
Whereas the
Experts
criteria
and
appears
to
challenge
administrative
the
feasibility
previous motion for class certification
sought to certify classes of all Georgia residents, the current
motion proposes definitions of those "own[ing] a home in Georgia."
Determining classes of plaintiffs owning a home in Georgia is
objective and administratively feasible.
Plaintiffs successfully
cured this deficiency from their prior motion.
Defendant Equity Experts briefly asserts that "there is no
administratively feasible method of determining membership given
the
individualized
class definitions."
Class,
at
4.)
inquiries
inherent
to
Plaintiffs'
proposed
(Def.'s Resp. Opp'n Third Am. Mot. to Certify
Defendant
Equity
15
Experts,
however,
offers
no
specifics
as
to
why
class
administratively feasible.
membership
determination
is
not
As proposed, the class definitions
contain objective criteria for membership.
C. Rule 23(a) Requirements
Rule 23(a) enumerates four prerequisites that must be shown
before class certification: (1) numerosity; (2) commonality; (3)
typicality;
and
(4)
adequacy
of
representation.
The
Court
evaluates each in turn.
1. Numerosity
Rule
23(a)(1)
requires
a
showing
that ''the
class
numerous that joinder of all members is impracticable."
the
Eleventh
Circuit
requires
more
than "mere
is
so
Although
allegations
of
numerosity[,] . . . a plaintiff need not show the precise number
of
members
in
the
class."
Vega,
564
F.3d
at
1267.
'MA]
plaintiff . . . bears the burden of making some showing, affording
the district court the means to make a supported factual finding,
that
the
class . . . meets
(emphasis in original).
show
numerosity
containing
forty
requirement.
Here,
is
a
the
numerosity
requirement."
Id.
Nevertheless, the plaintiff's burden to
"low
members
hurdle."
generally
Id.
A
satisfies
proposed
the
class
numerosity
Id.
Plaintiffs allege there are over 100 class members
(Second Am. Compl., SI 39) and cite to a spreadsheet purportedly
representing
800
individuals
that
16
Defendant
Equity
Experts
subjected to unlawful collection practices.
(Third Am. Mot. to
Certify Class, at 20; Spreadsheet, Doc. 79-9.)
Defendant Equity
Experts does not specifically challenge the numerosity prong and,
instead, challenges certification arguing that Plaintiffs ''failed
to meet their burden of demonstrating the number of persons they
seek to represent actually have standing to sue."
(Def.'s Resp.
Opp'n Third Am. Mot. to Certify Class, at 18 (emphasis omitted).)
Generally,
standing
is
addressed
at
the
outset
of
certification.
Defendant Equity Experts, however, links standing
to numerosity.
It is well-established in the Eleventh Circuit
that "[f]or a district court to certify a class action, the named
plaintiffs must have standing, and the putative class must meet
each
of
the
requirements
specified
in
Federal
Rule
of
Civil
Procedure 23(a), as well as at least one of the requirements set
forth in 23(b)."
Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1321
(11th Cir. 2008).
named
plaintiffs'
Defendant Equity Experts does not challenge the
standing
based
upon
their
alleged
injury.
Additionally, Defendant Equity Experts does not argue the absence
of typicality on the basis that the potential class members and
the
class
representatives
suffered
different
injuries.
See
Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357 (11th Cir.
2009) (noting typicality requires class representatives to suffer
the same injury as the class members).
Therefore, it generally
follows that if the class representatives have standing to sue.
17
and the putative classes meet the other requirements of Rule 23,
there
should
be
no
concerns
with
the
putative
class
members'
standing.
Defendant Equity Experts offers nothing that differentiates
the standing of the class members from the class representatives.
Cf. Cordoba, 942 F.Sd at 1272 (finding difference between class
representative repeatedly asking to be placed on do-not-call list
and class members never asking to be placed on do-not-call list
because class members not asking to be placed on list could not
show injury fairly traceable to the defendant's wrongful conduct,
which
impacted
the
predominance
analysis).
Defendant
Equity
Experts's argument here, though, is different than the one in
Cordoba.
Defendant Equity Experts's argument is that Plaintiffs'
burden is to prove the standing of the class members.
"[I]f [the
defendant's] argument depended on the proposition that all class
members
must
prove
their
standing
before
certified, that argument would be wrong."
a
class
Id. at 1273.
could
be
The Court
finds no issue with class standing here.
Although Defendant Equity Experts focused on standing, the
Court still evaluates whether Plaintiffs sufficiently establish
numerosity.
General
Plaintiffs offer evidence that numerosity for the
Class
is
satisfied,
but
the
motion
lacks
citations
regarding the numerosity of each subclass as required by Rule
18
23(c)(5).
Nevertheless, the Court examines the documents provided
to determine if numerosity is met as to each subclass.
From the record, the Court first finds a sufficient number of
putative class members exist to make joinder impracticable as to
the
General
Class.
Second,
considering
the
only
substantive
difference between the General Class and the Illegal Interest Class
is ^^letters" versus ^^communications," satisfaction of numerosity
for the General Class implies satisfaction of numerosity for the
Illegal Interest Class.
Third, the spreadsheet contains a large
number of entries exhibiting a filed lien satisfying the numerosity
requirement for the Injunction Class.
Fourth, although Plaintiffs fail to direct the Court to any
specific evidence as to numerosity for the Unjust Enrichment Class,
the
spreadsheet
documents
Defendant Equity Experts.
which
homeowners
made
payments
to
Plaintiffs allege that Defendant Equity
Experts employed a common practice of charging interest and fees
in excess of 16% per annum.
(Second Am. Compl., SISI 31, 33.)
spreadsheet
Defendant
reveals
that
Equity
Experts
The
received
payments from a sufficient number of persons to make their joinder
impracticable.
Fifth, similar to the
assert
that
Defendants
Unjust Enrichment Class, Plaintiffs
utilized
a
common
practice
to
charge
homeowners sums exceeding the amounts permitted in the various
governing HpA agreements.
(Id.)
Although the Court lacks evidence
19
concerning the various governing documents, for the reasons stated
in Sections 11(C)(2) and 11(D)(1), infra, individual evaluations
of the various HOA documents will force the Court to revisit the
certification
Defendant
issue.
Equity
Considering
Experts
the
charged,
number
of
persons
that
numerosity
is
satisfied
if
Defendants, in fact, enacted a common practice of charging more
than permitted under the HOA agreements.
2. Commonality
Next, Plaintiffs must establish ^^there are questions of law
or fact common to the class," often referred to as commonality.
Fed. R. Civ. P. 23(a)(2).
Commonality ^'does not require that all
the questions of law and fact raised by the dispute be common."
Vega,
564
F.3d
at
commonality, the
1268
moving
(citation
omitted).
To
party must satisfy a ''low
demonstrate
hurdle" of
showing "at least one issue whose resolution will affect all or a
significant number of the putative class members."
Williams, 568
F.3d at 1355, 1356.
In
Defendant
Equity
Experts's
opposition
to
class
certification, grouped under one heading, it argues Plaintiffs
failed
to
show
manageability.
Class,
failure
at
to
predominance,
typicality,
and
(Def.'s Resp. Opp'n Third Am. Mot. to Certify
7-16.)
give
commonality,
The
Eleventh
commonality
and
20
Circuit
has
predominance
cautioned
their
against
individual
considerations.
See Vega, 564 F.3d at 1268-69.
Therefore, the
Court focuses only on the commonality requirement at this time.
Plaintiffs enumerate issues that establish commonality as to
the
General
Class
and
subclasses.
As
to
the
General
Class
and
Illegal Interest Class Members, Plaintiffs assert that Defendant
Equity Experts employed a standard practice of sending letters and
communicating
with
violating the law.
putative
class
members
to
charge
amounts
(Second Am. Compl., 1 35; see also Kim Bragg
and Associates Dep., Doc. 73-1, at 21-22.)
Moreover, the majority
of the communications in the record appear to be the same basic
form.
(Compare Galofaro Dep., Ex. 9, with id. Ex. 10; compare id.
Ex. 13, with id. Ex. 14; compare id. Ex. 15, with id. Ex. 16.)
Whether the alleged standard actions violate "the FDCPA is a legal
question common to all members of the putative class and requires
proof of the same material facts."
Roundtree v. Bush Ross, P.A.,
304 F.R.D. 644, 659 (M.D. Fla. Feb. 18, 2015); see also Muzuco v.
Re$ubmitlt, LLC, 297 F.R.D. 504, 515 (S.D. Fla. 2013).
Therefore,
the low bar for commonality is met as to the General Class and
Illegal Interest Class.
The same is true for the Injunction Class.
Plaintiff Usry
asserts that Defendant Equity Experts used a standardized lien
process.
(Second Am. Compl., 5 35.)
The record contains evidence
that Defendant Equity Experts employed a common process for filing
a lien or lawsuit.
(Galofaro Dep., at 121-32.)
21
Therefore, the
legality of that process is commonly applicable to all putative
class
members.
As
for
the
classes
defined
to
include
amounts
charged in excess of 16% per annum, including the Unjust Enrichment
Class, whether amounts collected in excess of 16% violated federal
or Georgia law can be uniformly determined.
Finally, the Court finds the Excess Sums Class to be a close
decision.
As Defendant Equity Experts points out, on the face of
the class definition, the subclass seemingly requires an analysis
of each HOA document.
The Court agrees that if Plaintiffs are
seeking to certify a class of putative members requiring evidence
of
each
HOA
agreement
to
determine
validity
of
a
claim, the
subclass does not yield itself to resolution of "an issue that is
central to the validity of each one of the claims in one stroke."
Wal-Mart
Stores,
Inc.
v.
Dukes,
564
U.S.
338,
350
(2011).
Nevertheless, Plaintiffs satisfy their low burden of establishing
commonality as to Defendant Equity Experts's alleged practice of
charging beyond the applicable HOA agreement.
Certify Class, at 5-6.)
(Third Am. Mot. to
To the extent determination of liability
for charging beyond the various HOA agreements is not shown to be
a common practice and requires evaluation of each governing HOA
document, the
Court is entitled to "revisit the issue and de
certify the class."
In re Delta/AirTran Baggage Fee Antitrust
Litig., 317 F.R.D. 675, 681 (N.D. Ga. 2016) (citation omitted)
(citing Fed. R. Civ. P. 23(c)(1)(C)) (An order that grants or denies
22
class
certification
''^may
be
altered
or
amended
before
final
judgment.").
3. Typicality
Plaintiffs satisfy the typicality requirement.
Typicality
demands that "'the claims or defenses of the representative parties
are typical of the claims or defenses of the class."
P. 23(a)(3).
Fed. R. Civ.
As the Eleventh Circuit has instructed:
The claim of a class representative is typical if the
claims
or
defenses
of
the
class
and
the
class
representative arise from the same event or pattern or
practice and are based on the same legal theory. . . . A
class representative must possess the same interest and
suffer the same injury as the class members in order to
be typical under Rule 23(a)(3). . . .
The typicality
requirement may be satisfied despite substantial factual
differences when there is a strong similarity of legal
theories.
Williams
568
F.3d
at
1357
(citation,
internal quotation marks omitted).
internal
citations,
and
Although it briefly refers to
typicality in a heading and offers a rule statement (Def.'s Resp.
Opp'n Third Am. Mot. to Certify Class, at 7, 8), Defendant Equity
Experts
does
challenge.
not
appear
to
set
forth
a
specific
typicality
The record contains sufficient information upon which
the Court determines that the claims of the class representatives
are typical of the General Class and subclasses.
First, the record contains several examples of letters and
collection communications from Defendant Equity Experts to Sarah
Usry.
(See, e.g., Galofaro Dep., Exs. 9, 11-13.)
23
Defendant Equity
Experts purportedly sent similar communications to putative class
members.
(See id. Exs. 10, 14.)
Daniel Darnell, also a proposed
class representative for the General Class and Illegal Interest
Class, received similar correspondence.
Darnell Aff., SI 11.)
are
sufficiently
(See id. Ex. 19, see also
The putative class representatives' claims
typical
of
the
General
and
Illegal Interest
Classes.
Second, Plaintiff Usry's claims are typical of the Injunction
Class.
Defendant Equity Experts filed a lien against Plaintiff
Usry's home.
threatening
Defendant
(Usry Aff., SI 11.)
and
Equity
filing
of
Experts
Plaintiffs' position is that the
liens
(see
was
Galofaro
a
standard
Dep.,
at
practice
123-26),
of
the
practice had no basis in law or fact, and liens were filed against
369 other homeowners (Hamrick Aff., Doc. 79-10, SI 4).
Therefore,
considering the information in the record, the Court concludes the
claim that the lien against Plaintiff Usry violated the FDCPA is
typical of the putative Injunction Class Members.
Third, Plaintiff Darnell's claims are typical of the Unjust
Enrichment Class.
The claims of the Unjust Enrichment Class allege
that Defendant Equity Experts collected sums in excess of legal
limits.
Plaintiff Darnell failed to make an initial payment of
$115
his
to
eventually
property
paid
$1,351
owners
to
Defendant Equity Experts.
association.
settle
his
Plaintiff
collection
Darnell
account
with
Accordingly, Plaintiff Darnell's claim
24
is typical of the putative Unjust Enrichment Class Members' claims
that Defendant Equity Experts collected sums beyond what the law
permits.
Fourth, both Plaintiffs Usry and Darnell seek appointment as
representatives of the Excess Sums Class.
Plaintiffs Usry and
Darnell's initial debts grew to much larger sums that they claim
were not specifically included in their HOA.
herein,
Plaintiffs
cite
portions
of
the
As previously noted
record
Defendant Equity Experts employed a common practice.
indicating
Plaintiffs'
claims — that the charges were beyond the governing HOA agreement
plus reasonable costs of collection — are consistent with the
claims of the putative class.
4. Adequacy of Representation
Under Rule 23(a)(4), ''[T]he representative party in a class
action must adequately protect the interests of those he purports
to represent."
Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d
1181, 1189 (11th Cir. 2003) (citation and internal quotation marks
omitted).
inquiries:
The
^Ml)
adequacy
whether
requirement
any
contains
two
substantial conflicts
separate
of interest
exist between the representatives and the class; and (2) whether
the representatives will adequately prosecute the action."
(citation omitted).
Id.
Defendant does not argue that Plaintiffs will
fail to adequately prosecute the action, and Plaintiffs assert
they are prepared to do so.
(Usry Aff., SI 19; Darnell Aff., SI 18.)
25
Defendant Equity Experts does, however, raise the issue that a
conflict exists between the class representatives and the putative
class members.
''If substantial conflicts of interest are determined to exist
among the class, class certification is inappropriate."
Drug, 350 F.Sd at 1189.
Valley
Defendant Equity Experts asserts that it
benefitted some potential class members because some potential
class members saved their home from foreclosure.
Opp'n Third Am. Mot. to Certify Class, at 19.)
(Def.'s Resp.
Defendant Equity
Experts fails to cite any examples but states, "[I]t is by no means
inconceivable that many of" the more than 800 putative class
members
"who
benefited
were
from
the
serviced
services
by
[Defendant]
provided
Equity
because
of
Experts,
the
many
opportunities provided by [Defendant] Equity Experts to save their
home from foreclosure."
(Id.)
First, the Court finds no conflict as to the General Class,
Illegal Interest Class, Unjust Enrichment Class, and Excess Sums
Class.
The Court agrees with Plaintiffs' position that even if
the charging or payment of illegal sums saved some homes from
foreclosure,
no
conflict
exists.
An
adequacy
showing
may
be
defeated when the benefits "were so significant and apparent that
the class members receiving them effectively had no incentive to
see the challenged practice(s) declared unlawful."
317 F.R.D. at 695.
In re Delta,
Assuming Defendant Equity Experts actually
26
conferred
a
foreclosure,
homeowners
Defendant
Should
benefit
the
that
Equity
Defendant
on
Court
homeowners
does
avoided
allowing
not find
foreclosure
Experts's
alleged
that
those
lack
declared
prove
to
avoid
hypothetical
incentive
actions
Equity Experts's actions
them
to
have
unlawful.
unlawful, any
homeowners that saved their home from foreclosure had an interest
in saving their home from foreclosure without unlawful collection
efforts and payments.
Second, the Court does recognize a potential conflict between
homeowners attempting to save their home from foreclosure and
putative Injunction Class Members.
Nevertheless, ^^a conflict will
not defeat the adequacy requirement if it is ^merely speculative
or hypothetical.'"
Id. at 681 (quoting Ward v. Dixie Nat'l Life
Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010)).
In the event a true
conflict materializes, the certification issue may be revisited.
See Fed. R. Civ. P. 23(c)(1)(C).
The adequacy of representation
prong is met.
D. Rule 23(b)(3) Requirements
Once a plaintiff establishes the Rule 23(a) requirements for
certification,
a
plaintiff
must
requirements under Rule 23(b).
under Rule 23(b)(3).
demonstrate
one
of
the
three
Plaintiffs here seek certification
Pursuant to Rule 23(b)(3), a plaintiff must
show ^^questions of law or fact common to class members predominate
over any questions affecting only individual members" and ^^that a
27
class action is superior to other available methods for fairly and
efficiently
adjudicating
the
controversy."
In
making
that
determination courts evaluate four factors:
(A) the class
controlling the
members' interests in
prosecution or defense
individually
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).
1. Predominance
Predominance requires that "the issues in the class action
that are subject.to generalized proof and thus applicable to the
class as a whole, must predominate over those issues that are
subject only to individualized proof."
Babineau v. Fed. Express
Corp., 576 F.3d 1183, 1191 (11th Cir. 2009).
The common questions
"must predominate such that they have a direct impact on every
class
member's
effort
to
establish
liability
that
is
more
substantial than the impact of individualized issues in resolving
the claim or claims of each class member."
Landeros v. Pinnacle
Recovery, Inc., 692 F. App'x 608, 612 (11th Cir. 2017) (citation
and internal quotation marks omitted); accord Vega, 564 F.3d at
1270.
"Common
issues
will
not
28
predominate
over
individual
questions
if,
as
a
practical
matter,
the
resolution
of
an
overarching common issue breaks down into an unmanageable variety
of individual legal and factual issues."
985.
To
make
''begin[] . . . with
action."
a
predominance
the
elements
of
Carriuolo, 823 F.Sd at
determination,
the
underlying
courts
cause
of
Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S.
804, 809 (2011); accord Vega, 564 F.3d at 1270.
Plaintiffs' class action involves three underlying claims:
(1) violation of the FDCPA; (2) violation of Georgia usury laws;
and (3) unjust enrichment.
"a
plaintiff
'collection
must
In order to prevail on an FDCPA claim,
establish
activity'
that
arising
(1)
from
she
was
'consumer
the
object
debt';
(2)
of
the
defendant qualifies as a 'debt collector' under the FDCPA; and (3)
the defendant engaged in an act or omission prohibited by the
FDCPA."
Darrisaw v. Pa. Higher Educ. Assistance Agency (PHEAA),
No. CV 316-082, 2017 WL 1377719, at *2 (S.D. Ga. Apr. 11, 2017).
The Court begins with Defendant Equity Experts's contention that
because determining whether the accounts at issue qualify as a
consumer
debt
requires
individual
determinations,
the
common
issues do not predominate.
The
FDCPA
"primarily
for
applies
only to "payment obligations" that
personal,
family,
or
household
are
purposes."
Oppenheim v. I.C. Sys., Inc., 627 F.3d 833, 837 (11th Cir. 2010)
(emphasis omitted).
Although the Court recognizes that some courts
29
hesitate to certify classes when the court cannot ensure that all
of the debts involved are non-consumer debts, see, e.g., McCamis
V. Servis One, Inc., No. 8:16-CV-1130-T-30AEP, 2017 WL 589251, at
*5 (M.D. Fla. Feb. 14, 2017) (noting individual questions as to
whether
debts
were
consumer
debts
contributed
to
defeating
predominance), other courts have concluded that this alone may not
thwart certification.
'MT]he need to show that the transactions
involved in a particular case are consumer transactions is inherent
in every FDCPA class action[].
If . that need alone precluded
certification, there would be no class actions under the FDCPA."
Hicks V. Client Servs., Inc., No. 07-61822-CIV, 2008 WL 5479111,
at *6 (S.D. Fla.
Dec. 11, 2008) (citation omitted).
As Hicks
concluded, ''there are means for making such determinations"^ and
"proper drafting of the claim form may help exclude non-consumer
debts."2
Id.; accord
Collins
v.
F.R.D. 689, 700 (S.D. Fla. 2013).
Erin
Capital
Mgmt., LLC,
290
Moreover, questions regarding
Defendant Equity Experts's status as a debt collector and alleged
violations of the FDCPA do not require individual determinations.
Accordingly,
common
questions
surrounding
the
communications,
letters, amounts collected, amounts sought, and liens and lawsuits
1 Although the Court cited Karhu for the proposition that self-identification
is a concern at the ascertainability stage
ascertainability is not at issue here.
(Mar.
12,
2019 Order,
at
14),
2 Defendant Equity Experts argues that Plaintiffs' present definitions are
another fail-safe class. (Def.'s Resp. Opp'n Third Am. Mot. Certify Class, at
12.) The Court disagrees. Whether a putative class member is in the class is
not dependent on the ultimate question of liability — whether Defendants' debt
collection practices violated the FDCPA.
30
filed predominate over individual questions related to whether the
various accounts constitute a consumer debt.
Moreover,
even
if
Defendant
Equity
Experts
possesses
individual defenses based upon the absence of a consumer debt, the
question as to whether Defendant Equity Experts sought illegal
interest remains common to the class.
Accordingly, there is not
a concern that several plaintiffs meeting a class definition will
join as class members but fail to fit within one of the asserted
claims against Defendant Equity Experts.
Next, Plaintiffs assert a claim for violation of Georgia usury
laws.
The essential elements of usury are (1) a loan or
forbearance of money, express or implied; (2) made with
an understanding that the principal shall or may be
returned; (3) that provides a profit greater than that
authorized by law in exchange for such loan or
forbearance; and (4) with an intent to violate the law.
Mallard v. Forest Heights Water Works, Inc., 580 S.E.2d 602, 603
(Ga. Ct. App.
predominate.
2003).
As for the
Defendant
Equity
usury claims, common issues
Experts
proclaims
that
each
association's governing documents must be examined because some of
the governing documents capped interest at 18%, not the 16% figure
contained in the class definition.
Even accepting Defendant Equity
Experts's position as true. Plaintiffs' theory is that the charged
amount over 16% is usurious, regardless of the language in the
governing documents.
Therefore, such determinations are capable
31
of
classwide
resolution
regardless
individualized HOA documents.
of
the
language
in
the
Although the governing documents
may present individual questions as to the unjust enrichment claim,
discussed
below,
whether
the
governing
documents
permitted
Defendant Equity Experts to collect interest in an amount greater
than 16% is a legal question capable of classwide resolution.
Therefore, classwide issues predominate.
Finally,
Plaintiffs
allege
unjust
enrichment.
Unjust
enrichment '"is an equitable concept and applies when as a matter
of fact there is no legal contract, but when the party sought to
be charged has been conferred a benefit by the party contending an
unjust enrichment which the benefitted party equitably ought to
return or compensate for."
Wachovia Ins. Servs., Inc. v. Fallon,
682 S.E.2d 657, 665 (Ga. Ct. App. 2009).
Plaintiffs' theory of
unjust enrichment depends on the allegation that Defendant Equity
Experts received amounts Plaintiffs did not owe.
Experts
maintains
that
governing documents.
it
charged
amounts
Defendant Equity
under
the
various
As discussed, regarding commonality, the
Court maintains some concern that individual governing documents
may impact the Court's ability to manage the class action as to
this claim.
The Eleventh Circuit has stated that ^^common questions will
rarely, if ever, predominate an unjust enrichment claim."
564
F.3d
at 1274.
The
Court
understands the
32
Vega,
Eleventh Circuit's
reasoning and proceeds with certification with caution.
Here,
however, Plaintiffs argue, with evidence that Defendant Equity
Experts's collection efforts were on "autopilot," that Defendant
Equity Experts's "business operations are the same to all members
of the putative class."
Muzuco, 297 F.R.D. at 521.
To the extent
Defendant Equity Experts engaged in a common practice of charging
and accepting amounts not permitted, predominance is satisfied.
If, however. Plaintiff fails to establish such a common practice
or Defendant Equity Experts shows that determination of excess
payment is subject to individualized proof, as noted before, the
Court
will
revisit
the
certification
issue
as
to
the
classes
impacted by such individualized determinations.
2. Superiority
Here,
a
class
action
is
adjudicating the controversy.
superior
to
other
methods
of
Defendant Equity Experts argues
that the absence of manageability and a potential recovery of $0.00
per putative class member preclude certification.
Beginning with
manageability. Defendant Equity Experts offers no authority in
support of its belief that the class action is unmanageable.
The
Court previously addressed the consumer debt issue and does not
find distinguishing putative class members owning their home for
nonconsumer purposes to be unmanageable.^
3 Defendant Equity Experts also argues, without supporting authority, that
underlying debt enforcement actions may preclude the present claims of some
putative plaintiffs. The Court is not persuaded by the argument at this stage.
33
Next, without support. Defendant Equity Experts states the
potential recovery for any class member is $0.00.
Cf. Gaalswij k-
Knetzke
8:08-cv-493-T-
v.
Receivables
Mgmt.
Servs.
Corp.,
No.
26TGW, 2008 WL 3850657, at ^4, *4 n.7 (M.D. Fla. Aug. 14, 2008)
(noting how the defendant arrived at the potential recovery amount
the defendant argued was de minimis).
Defendant Equity Experts
does not explain why the potential recovery per putative class
member is $0.00 versus $1.00 or $2.00, but Plaintiffs point out
that even assuming Defendant Equity Experts is judgment proof,
other defendants are party to this lawsuit.
As for the potential
for a small recovery, the Supreme Court has quoted:
The policy at the very core of the class action mechanism
is to overcome the problem that small recoveries do not
provide the incentive for any individual to bring a solo
action prosecuting his or her rights.
A class action
solves this problem by aggregating the relatively paltry
potential recoveries into something worth someone's
(usually an attorney's) labor.
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting
Mace V. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)).
The Eleventh Circuit has noted the benefit of class adjudication
of FDCPA claims as compared to individual adjudication, even where
the potential recovery per putative class member is very small.
Dickens v. GC Servs. Ltd. P'ship, 706 F. App'x 529, 537-38 (11th
Without deciding one way or the other, a state enforcement action does not
necessarily preclude a later FDCPA claim.
See Azar v. Hayter, 874 F. Supp.
1314, 1317 (N.D. Fla. 1995), aff'd, 66 F.3d 342 (11th Cir. 1995).
Without
additional information, the Court does not conclude that potential preclusion
issues as to some putative plaintiffs destroy predominance or superiority.
34
Cir. 2017).
The benefit of class adjudication is particularly
true when the conduct complained of implicates a defendant's common
practice.
Jones v. Advanced Bureau of Collections LLP, 317 F.R.D.
284, 291, 294 (M.D. Ga. 2016).
The Court recognizes that it is required to consider the cost
and recoveries in determining the efficiency of the litigation,
but it
does
not
Evaluating
the
connection
with
consider
the
efficiency
the
potential
of
class
recovery in
adjudication
other factors enumerated in
a
is
vacuum.
done
in
Rule 23(b)(3).
Although the potential recovery is higher for individuals, there
is no indication the putative class members are aware of their
rights under the FDCPA or under Georgia law.
Putative class
members' lack of awareness is supported by Plaintiffs' averment
that they are unaware of other lawsuits that class members are
pursuing.
Moreover, to the extent that the putative class members
did pursue the alleged claims individually, it would place a
consequential strain on the courts.
See Jones, 317 F.R.D. at 294
(quoting Kennedy v. Tallant, 710 F.2d 711, 718 (11th Cir. 1983))
("[S]eparate [FDCPA] actions by each of the class members would be
repetitive,
courts.").
wasteful,
and
an
extraordinary
burden
on
the
Overall, class adjudication is superior to other forms
of adjudication.
35
III. CONCLUSION
For
the
foregoing
reasons,
IT
IS
HEREBY
ORDERED
that
Plaintiffs' amended motion for class certification (Doc. 93) is
GRANTED.
The Court CERTIFIES the proposed class and subclasses
pursuant to Federal Rule of Civil Procedure 23(b)(3) as defined in
Plaintiffs' amended motion for class certification.
Mot. to Certify Class, at 2-3.)
notice
in
approval.
accordance
with
Pursuant to
Plaintiffs shall SUBMIT a proposed
Rule
Rule
(Third Am.
23(c)(2)(B)
23(c)(1)(B)
to
and
the
Court
23(g), the
for
Court
APPOINTS the appearing attorneys on behalf of Plaintiffs as class
counsel,
(See Hudson Aff., Doc. 79-12.)
Further, the Court APPOINTS Plaintiffs Usry and Darnell as
class representatives of the General Class, the Illegal Interest
Class, and the Excess Sums Class.
APPOINTED
class
representative
Additionally, Plaintiff Usry is
of
the
Injunction
Class,
and
Plaintiff Darnell is APPOINTED class representative of the Unjust
Enrichment Class.
Finally, the Parties are DIRECTED to submit a joint report
relating to the status of discovery and other scheduling matters.
ORDER ENTERED at Augusta, Georgia, thig—^
of March,
2020.
J. RANDAL "HALZ, UCHr^ JUDGl
UNITED STATES
DISTRICT
COURT
SOUTHEEW^ISTRICT OF GEORGIA
36
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