Usry v. Equityexperts.org, LLC
Filing
78
ORDER denying without prejudice 77 Motion to Amend/Correct. Plaintiff is granted leave to file a new motion for class certification within 30 days of the date of this order. 61 Motion to Certify Class terminated. Signed by Chief Judge J. Randal Hall on 2/16/2018. (pts)
IN THE UNITED
STATES DISTRICT
SOUTHERN DISTRICT
COURT
FOR THE
OF GEORGIA
AUGUSTA DIVISION
*
SARAH USRY and DANIEL DARNELL,
on behalf
of
themselves
and
all others similarly situated,
*
l:16-cv-010
Plaintiffs,
v.
EQUITY EXPERTS.ORG,
LLC d/b/a
*
EQUITY EXPERTS,
*
Defendant.
*
*
*
ORDER
Before
the
Certification
Plaintiffs
Plaintiffs'
Memorandum
that
Defendant
Act
("FDCPA"),
Practices
usury
is
Supporting
allege
Collection
Georgia
and
Court
statute,
O.C.G.A.
§
Motion
of
for
Class
Law.
(Doc.
77.)
violated
15
U.S.C.
7-4-2,
the
§
when
Fair
1692,
it
Debt
and
the
sought
to
collect delinquent assessments on behalf of Georgia homeowners'
associations.
class
is
a
Because the Court finds that Plaintiffs'
fail-safe
class,
the
proposed
Court DENIES WITHOUT PREJUDICE
1 Plaintiffs' original Motion for Class Certification was filed
as Document 61.
The Court subsequently requested that Plaintiffs
refile the motion to clarify conflicting record citations.
Plaintiffs
complied with the Court's request by refiling their motion as Document
77. Accordingly, the Clerk of Court SHALL TERMINATE Document 61. The
Court will now treat Document 77 as Plaintiffs'
Certification and Supporting Memorandum of Law.
Motion
for
Class
Plaintiffs'
motion
date
motion
for
of
class
this
and
grants
Plaintiffs
leave
certification within THIRTY
to
(30)
file
DAYS
a
new
from the
Order.
I. Background
The
named
the Ashbrooke
77,
at
Plaintiffs
Georgia
homeowners
Property Owners Association
6-9.)
members
are
From the
years
time
period,
more
of their
failures,
Plaintiffs
annual
Defendant
Ashbrooke's
Usry
and
behalf.
(Id.
(Id.
collection
These
Ashbrooke
Darnell
assessments.
began
("Ashbrooke").
2012-2015,
an annual assessment of $115.
belonging
at
failed
at
collection
its
During this
to
9-11.)
efforts
(Doc.
charged
9.)
to
pay
Due
against
efforts
one
or
to these
them
sparked
on
the
present lawsuit.
The
covenant
which
governs
the
authorizes
Ashbrooke
to
impose
homeowners
who
fail
to
pay
5.)
Ashbrooke may:
(Doc.
77-1,
assessment
at
"at the
rate of
an
a
number
annual
(3)
of
or
(1)
(2)
subdivision
penalties
special
charge
eighteen percent
the highest rate permitted by law";
late charge";
Ashbrooke
against
assessment.
interest on the
(18%)
per annum or
impose "a reasonable
add interest and late charges to "the annual
assessment to which [each]
[l]ot is subject";
(4)
"foreclose the
lien of the delinquent assessment against the [l]ot";
(5) "bring
an action at law against the [o]wner personally obligated to pay
the delinquent assessments";
(6)
and assess the homeowner for
"all
costs
and
attorney's
fees
which
[Ashbrooke]
pursuing any foreclosure or action at law.
Consistent
contracted
with
with
assessments.
Limited
assessments
of
Defendant
(Doc.
Defendant was
to
its
77-3,
June
at
of
from the
collection
[Defendant's]
Attorney,
standard
by
fee
collect
contract
to
collect
plus
and
distributed
semi-annually."
the
record does
not
fee
the
as
The
that
and pursuant
delinquent
costs
outlined
addendum which
(Id.)
include the
delinquent
any and all
[Defendant],
structure
Ashbrook
states
[Ashbrooke],
responsible party,
charged
to
The
"authorized on behalf of
Powers
abilities,
2013
1.)
incur"
(Id. at 8.)
enforcement
in
shall
is
in
updated
contract
cited in
structure used at
the time
of signing.
Ms.
Usry failed to timely pay her 2013 annual assessment.
On June 28, 2013, she received her first letter from Defendant.
(Doc.
77-4,
Defendant
at
was
599.)
seeking
behalf of Ashbrooke.
her
current
balance
days
The
letter
informed
Ms.
to collect her delinquent
(Id.)
Usry
that
assessment
on
The letter then informed her that
was
$443.65,
her
balance
but
that
if
she
did
pay
within
thirty
(Id. )
Over the next six months Defendant assessed the following
fees against Ms.
would be "at least
not
$838.65."
Usry:
Account Setup Fee
Intent to Record Lien Package
Lien Recording and Discharge Package
$175.00
$95.00
$395.00
Constant Contact Service Package
Pre-Foreclosure Package
$750.00
$1,4 95.00
By December 2013, Ms. Usry "owed" Defendant a sum of $3,083.65.
(Id.
at
letter
she
618.)
In
stating
her
December
current
2014,
balance
did not pay within ten days,
$6,644.60."
Mr.
Defendant
was
sent
$3,199.60,
her balance
Ms.
but
"may be
Usry
that
at
a
if
least
(Id^_ at 600. )
Darnell
suffered
a
similar
experience.
Mr.
Darnell
also failed to timely pay the 2013 annual assessment of $115.00.
(Doc.
35,
at
5.)
He
settled
November 2013 for $1,351.00.
Plaintiffs
filed this
his
(Doc.
class
account
77,
with
Defendant
in
at 11.)
action alleging that
Defendant
engaged in a standardized debt collection scheme that violated
the FDCPA and Georgia usury laws.
the
allegation
that
Defendant
Plaintiffs'
charged
claim rests upon
the
following
fees
directly to delinquent homeowners:
Account Setup Fee:
$175.00
Intent to Record a Lien Notice:
$95.00
Recording of the Lien Notice:
$395.00
Constant Contact Communication Package:
Intent to Foreclose Notice:
Post Intent to Foreclose Notice:
$750.00
$1,495.00
$100.00 (monthly)
Managing the Foreclosure Litigation Fee:
$3,445.00
(Doc.
77,
at
"exorbitant,
6-7.)
Plaintiffs
unsubstantiated,
argue
that
and bogus."
these
(Id.
fees
at 4.)
are
They
complain that because the fees are not listed in "any of the
covenants
of
any
Georgia
neighborhood
for
which
Defendant
provides collection services" (id. at 6), Defendant violates the
FDCPA when
it
charges
these fees directly
to
the
homeowner,
rather
than the
Plaintiffs,
"false,
relevant
this
homeowners'
practice
violates
[and]
association.
misleading
deceptive,
the
FDCPA
According to
because
representation"
it
to
uses
collect
the delinquent debt and is an "unfair or unconscionable means to
collect
claim
the
or
attempt
that
fees
to
collect
Defendant's
"are
actually
fees
debt."
violate
interest,
charged under Georgia law."
(Id.
Georgia
far
in
at
4.)
usury
excess
of
They
also
law
because
what
can be
(Id. at 17.)
Plaintiffs ask this Court to certify a general class and three
subclasses.
(Id.)
Plaintiffs define their general class as:
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").
(Id.)
Plaintiffs define their three subclasses as:
All natural persons in Georgia to whom Equity
sent collection communication seeking to collect
interest
or other
sums not owed
(hereinafter the
Experts
illegal
"Illegal
Interest Class Members).
All
natural
persons
in
Georgia
against
whom
Equity
Experts has filed a lien and/or lawsuit asserting claims
for delinquent assessments,
interest,
and fees while
residing in the State of Georgia and against whom the
lawsuit or lien remains pending
the "Injunction Class Members").
and
unpaid
(hereinafter
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 3-4.)
II.
Discussion
Defendant challenges Plaintiffs'
on
the
(Doc.
basis
68,
that
at 4.)
they
are
proposed class definitions
impermissible
"fail-safe"
classes.
The Court agrees.
"A fail-safe class
is
a class whose membership can only be
ascertained by a determination of the merits of the case because
the
class
is
liability."
2012) .
A
putative
defined
In
re
terms
Rodriguez,
fail-safe
class
in
class
members
of
695
is
in
the
class
Randleman
v.
(6th Cir.
2011) .
certified
because
adverse
and,
from
is
369-70
an
bound
by
Ins.
Co.,
646
to
"shields
the
because
known
a
after
the members
determination
of
judgment."
F.3d
it
The
Court
finds
definitions
that
are
all
class
liability."
Store, 288 F.R.D. 45, 55 (S.D.N.Y. 2012)
but
"fail-safe"
one
whether
352
an
and it
is
could
Mazell
only be
v.
Money
(citations omitted).
of
because
Plaintiffs'
proposed
"eligibility
Commonwealth Land Title. Ins. Co., 264 F.R.D.
Pa. 2010).
347,
prevents
class member" is "dependent upon a legal conclusion."
v.
they are
class should not be
defendants,
of the
the
judgment.
losing,
not
'fail-safe'
unfair
it
of
(5th Cir.
adverse
by virtue of
Title
question
judgment being entered against plaintiffs,
unmanageable
class
360,
receiving
"A proposed
it
F.3d
therefore,
Fidelity Nat.
ultimate
improper because
Either the class members win or,
not
the
as
a
Alberton
203, 207
(E.D.
Membership in Plaintiffs' General Class depends upon
Defendant
asserted
claims
for
delinquent
assessments,
interest,
or
fees
usury statute."
in
Plaintiffs'
"in
violation
of
(Doc. 77, at 3
Illegal
the
FDCPA
and
the
(emphasis added).)
Interest
Class
depends
Georgia
Membership
upon
whether
Defendant sought "to collect illegal interest or other sums not
owed."
(Id.
(emphasis added).)
And membership in Plaintiffs'
Unjust Enrichment Class depends upon whether Defendant "received
any
payment
[from
the
class
member]
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."
therefore,
cannot
class definitions.2
The
Court
(Id. at 4 (emphasis added).)
certify Plaintiffs'
class
The Court,
using the proposed
See Randleman, 646 F.3d at 352.
recognizes
that
it may
use
its
discretion
to
"revise a proposed class definition to avoid the problem of a
fail-safe
F.R.D.
class."
68,
exercise
Campbell
74 (E.D. Me.
this
v.
2010).
discretion
and
First
Am.
Title
Ins.
Co.,
269
The Court, however, declines to
instead
grants
Plaintiffs
the
opportunity to propose class definition(s) that avoid the fail
safe problem.
Plaintiffs'
ConAgra
motion
Foods,
2 Because
class,
Accordingly,
to
Inc.,
the Court DENIES WITHOUT PREJUDICE
certify
302
Plaintiffs'
the
F.R.D.
umbrella
proposed
537,
581
General
class.
See
(CD.
Cal.
Class
is
a
In
re
2014)
fail-safe
the Court will not certify the lone subclass which was not
fail-safe - the Injunction Class.
(denying motion to certify class without prejudice and granting
plaintiffs
thirty
days
to
"address
the
decencies
noted"
in
the
court's order).
III.
Conclusion
The Court cannot certify Plaintiffs'
it
is
a
fail-safe
should have
the
class.
But,
opportunity to
the
fix
the Court DENIES WITHOUT PREJUDICE
and
grants
Plaintiffs
certification
within
leave
THIRTY
to
(30)
proposed class because
Court
the
believes
proposed
Plaintiffs'
file
DAYS
a
new
from
Plaintiffs
class.
Thus,
motion
(doc.
motion
for
the
date
of
77),
class
this
Order.
ORDER ENTERED at Augusta,
February,
Georgia,
this
/^^day of
2018.
J. VRAOT5AL HALL; CHIEF JUDGE
UNITEEy STATES DISTRICT COURT
^HERN DISTRICT OF GEORGIA
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?