Desrosiers v. Asset Acceptance, LLC

Filing 34

ORDER granting in part and denying in part 21 plaintiff's Motion to Amend Complaint. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANDRE DESROSIERS,
Plaintiff,

Case No. 14-CV-13704

vs.

HON. GEORGE CARAM STEEH

ASSET ACCEPTANCE, LLC,
Defendant.
____________________________/
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND COMPLAINT [DOC. 21)
This case arises from plaintiff Andre Desrosiers’ failure to pay his Chase Heritage
credit card and defendant Asset Acceptance’s attempt to collect the account. Plaintiff
filed his initial complaint under the Fair Debt Collection Practices Act (“FDCPA”) on
September 24, 2014. The complaint alleges defendant violated the FDCPA by
attempting to collect a time-barred debt without disclosing the time-barred nature of the
account (and that defendant therefore could not pursue litigation to collect the account).
The one count in the complaint is referred to as the statute of limitations count. To date
there has been written discovery, plaintiff’s deposition and the deposition of an Asset
witness. Plaintiff has now filed a motion to amend his proposed class action complaint
under Fed. R. Civ. P. 15(a) seeking leave to limit the class to only persons in Michigan
who received the 95% Settlement Offer letter regarding loans purchased by Asset from
Chase Bank. Additionally, plaintiff seeks to “clarify” that he is also claiming a FDCPA
violation arising from defendant’s attempt to collect interest added after the debt was
-1-

charged off by Chase Bank. Plaintiff acknowledges that the violation of law asserted
with regard to the interest issue is related to that alleged in another class action lawsuit,
McDonald v. Asset Acceptance, LLC, 296 F.R.D. 513 (E.D. Mich. 2013). This court
heard oral argument on plaintiff’s motion to amend, and for the reasons set forth herein
grants the motion in part and denies the motion in part.
STANDARD
The standard for granting leave to amend is set forth at Fed. R. Civ. P. 15(a),
which provides that “leave shall be freely granted when justice so requires.” The
Supreme Court has explained that courts may deny leave to amend where there is
“undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, [and/or] futility of amendment.” Foman
v. Davis, 371 U.S. 178, 182 (1962).
ANALYSIS
I. Amendment to Statute of Limitations Class Definition
Plaintiff seeks to narrow the putative class definition regarding the 95%
Settlement Offer form letter to include only those persons in Michigan, as opposed to
the originally pled nationwide class. Defendant does not have an objection to this
specific amendment to the complaint. The court GRANTS plaintiff’s motion to amend
his complaint to limit the statute of limitations class to include all individuals with a
Michigan address who were sent a 95% Settlement Offer letter, as stated in paragraph
41 of the proposed amended complaint.

-2-

II. Post Charge-Off Interest That Accrued While Chase Bank Held Debt
In paragraph 38 of the proposed amended complaint, plaintiff describes his new
improper interest claim:
Asset Acceptance was attempting to collect an amount within the
“Current Balance” listed in Exhibit A, that was comprised of an amount of
interest to which it was not entitled to collect as the account had been
charged off and the original creditor stopped sending Plaintiff monthly
billing statements. The violation of law here is related to that alleged in
McDonald v. Asset Acceptance, LLC . . . which granted summary
judgment in the plaintiffs’ favor.
(Proposed Amended Complaint, ¶ 38). In describing the “Improper Interest Class”
makeup, the proposed amended complaint states that it consists of:
All individuals with a Michigan address, where Asset Acceptance
purchased their credit card debt from Chase Bank USA, N.A., where Asset
Acceptance had added an amount of interest that was not added by the
original creditor of the debt prior to purchase by Asset Acceptance, and
sought to collect that added interest at any time from September 24, 2013
to October 14, 2014.
(Proposed Amended Complaint, ¶ 42). Finally, in paragraph 47, plaintiff describes the
predominant common question to the Improper Interest Class as being “whether Asset
Acceptance violated the FDCPA when it attempt [sic] to collect an improper amount of
interest on a Chase credit card that was charged off.” (Proposed Amended Complaint,
¶ 47).
This claim, based on interest added by Asset which accrued during a period of
time when the original creditor Chase owned the account but did not charge interest and
in fact charged off the debt, is not only the subject of the McDonald class action lawsuit,
but apparently is not a claim that plaintiff is making on his own behalf. At oral argument,
plaintiff clarified that he was not complaining that Asset had committed this particular
-3-

violation of the FDCPA as to him. Indeed, plaintiff admitted that Asset did not attempt to
add interest to his account that accrued while Chase owned his debt. Rather, plaintiff
explained that he was lumping that claim, which he suspected is held by others he
seeks to represent, together with his claim (described below) under a single claim
referred to as “improper interest.”
In order to be a class representative, plaintiff “must be part of the class and
possess the same interest and suffer the same injury as the class members.” Young v.
Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012). Clearly this is not the case
with this plaintiff. The “improper interest” claim described in the proposed amended
complaint is clear in alleging an attempt to collect charged off interest that accrued
before Asset acquired the debt. After oral argument, it is also clear that the alleged
claim is not held by plaintiff and proposed class representative Andre Desrosiers.
It is not necessary for the court to address the stay that was entered by Judge
Battani in the McDonald case, since the court concludes that it would be futile to permit
plaintiff to amend his complaint, as proposed, to add the improper interest claim.
Plaintiff would not survive a motion to dismiss such a claim, nor could he be certified as
an adequate class representative as to a claim he does not hold in his own right.
Plaintiff’s motion to amend complaint to add an improper interest claim is DENIED.
III. Post Charge-Off Interest That Accrued After Asset Acquired Debt
At oral argument, plaintiff’s counsel explained that he is also seeking to add a
claim for interest incurred after Chase sold the debt to Asset. This subset of the
“improper interest” claim is based on daily interest accrued from the time Asset acquired
the debt from Chase until the debt is satisfied. A fair reading of plaintiff’s proposed
-4-

amended complaint does not back up counsel’s verbal explanation to the court. After
engaging counsel in a colloquy regarding the scope of his claim, the court understands
that the post-acquisition accrued interest claim is one that plaintiff asserts personally, as
well as on behalf of the class he seeks to represent. However, in each of the
paragraphs of the proposed amended complaint cited above, plaintiff is clear in
describing the improper interest as interest accrued when Chase held the debt, but
which was charged off by Chase before it sold the debt to Asset. Interest that accrued
after Chase sold the debt to Asset would not have anything to do with interest charged
off by Chase, which plaintiff describes as the “predominant common question to the
Improper Interest Class”. (Proposed Amended Complaint, ¶ 47).
This claim, or aspect of a claim, hesitantly described by plaintiff’s counsel at oral
argument, is not evident from the face of the proposed amended complaint. For this
additional reason, the court DENIES the motion to amend to add an improper interest
claim.
CONCLUSION
For the reasons stated above, plaintiff’s motion to amend the complaint is
GRANTED to allow the statute of limitations class to be modified from nationwide to
Michigan members only. The motion to amend is DENIED to the extent it seeks to add
a second claim for improper interest as set forth in plaintiff’s proposed amended
complaint.
IT IS SO ORDERED.
Dated: May 28, 2015
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
-5-

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 28, 2015, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

-6-