QURESHI v. OPS 9, LLC et al

Filing 70

OPINION. Signed by Judge Madeline C. Arleo on 10/28/16. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARYAM QURESHI, on behalf of
herself and others similarly situated,
Civil Action No. 14-1806
Plaintiffs,
OPINION
v.
OPS 9, LLC, et al.,
Defendants.

ARLEO, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on OPS 9, LLC (“OPS 9”) and Anurag Sett’s
(“Sett”) (collectively, “Defendants” or “Third Party Plaintiffs”) Motion for Summary Judgment
against Faloni & Associates (“Faloni” or “Third Party Defendant”) on the issues of indemnification
and defense, Dkt. No. 51; and Plaintiff Maryam Qureshi’s (“Plaintiff”) motion for class
certification, Dkt. No. 54. On October 25, 2016, the Court held oral argument on both motions.
This Opinion further supplements the Court’s oral decision in connection with Plaintiff’s motion
for class certification.
I.

Ascertainability of Whether Each Debt is a Consumer Debt
Defendants’ and Third Party Defendant’s sole argument against certification is that the

nature of each debt (i.e., whether it is a consumer debt or a business debt) is not ascertainable. The
Court disagrees.
“A party seeking class certification must affirmatively demonstrate his compliance with”
Fed. R. Civ. P. 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). However, prior to

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assessing the requirements of Rule 23, the Court must first determine whether the plaintiff has
shown “by a preponderance of the evidence, that the class is ‘currently and readily ascertainable
based on objective criteria.’” Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013) (quoting
Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 593 (3d Cir. 2012)). “If class members are
impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a
class action is inappropriate.” Marcus, 687 F.3d at 593.
The Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”) applies only
to the collection of consumer debt, which is defined as “any obligation or alleged obligation of a
consumer to pay money arising out of a transaction in which the money, property, insurance, or
services which are the subject of the transaction are primarily for personal, family, or household
purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5).
Defendants and Third Party Defendant argue that Plaintiff has provided no means to readily
identify whether each default judgment concerned a consumer debt or a business debt. In support
of this position, Defendants cite to Riffle v. Convergent Outsourcing, Inc., 311 F.R.D. 677 (M.D.
Fla. 2015). In Riffle, the Court held that a putative class under the FDCPA was not ascertainable
because the plaintiff failed to present any evidence showing that the nature of each putative class
member’s debt could be identified. Id. at 680-81.
The need to determine whether each debt is a consumer debt does not automatically
preclude class certification under the FDCPA; instead, courts “examine the general nature of the
debts and the ease of separating consumer from business debts.” Butto v. Collecto Inc., 290 F.R.D.
372, 382 (E.D.N.Y. 2013) (quotation omitted); see also Luther v. Convergent Outsourcing, Inc.,
No. 15-10902, 2016 WL 1698396, at *3–4 (E.D. Mich. Apr. 28, 2016); Jenkins v. Pech, No. 1441, 2015 WL 3658261, at *8 (D. Neb. June 12, 2015); Roundtree v. Bush Ross, P.A., 304 F.R.D.

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644, 653–54 (M.D. Fla. 2015); Gold v. Midland Credit Mgmt., Inc., 306 F.R.D. 623, 628–30 (N.D.
Cal. 2014). Numerous courts have observed that because “the need to show that the transactions
involved in a particular case are consumer transactions is inherent in every FDCPA class action[,]
. . . [i]f that need alone precluded certification, there would be no class actions under the FDCPA.”
Wilkerson v. Bowman, 200 F.R.D. 605, 609 (N.D. Ill. 2001).
In this case, determining whether a debt is a consumer debt, rather than a business debt, is
“relatively straightforward.” Butto, 290 F.R.D. at 382. Plaintiff argues that the information
contained in each default judgment application can be used to identify whether the debt was
incurred by an individual or business. In particular, the dishonored checks attached to the
applications feature information including the name and address of the person or entity that wrote
the check, the identity of the person or entity to whom the check was written, and in some cases,
drivers’ license information. Sett Aff. ¶ 6, Dkt. No. 60-1. Plaintiff asserts that the name of the
account holder, nature of the check (i.e., personal or business), and identity of the entity receiving
the check (i.e., whether the entity transacts consumer business) provide enough evidence to
determine which debts represent consumer debts.1
The Court is satisfied that these details provide “objective criteria” from which class
members can be ascertained, and create at least a rebuttable presumption that each prospective
class member’s debt was consumer in nature. See Gradisher v. Check Enf’t Unit, Inc., 203 F.R.D.
271, 277 (W.D. Mich. 2001); Yazzie v. Gurley Motor Co., No. 14-555, 2015 WL 10818834, at *5

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The evidence Plaintiff provides distinguishes this case from Riffle. In Riffle, the Court held that
the class was not ascertainable because the plaintiff had “simply intimated that the records of
Defendants or the original creditor will be useful in identifying potential class members.” Riffle,
311 F.R.D. at 681. Here, by pointing to the specific records that will be used and explaining how
such records will be utilized to identify consumer debts, Plaintiff has done significantly more than
the plaintiff in Riffle. See Luther, 2016 WL 1698396, at *3–4 (similarly distinguishing Riffle).
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(D.N.M. Oct. 30, 2015). In fact, numerous other courts have authorized similar methods of
identifying class members under the FDCPA. See, e.g., Gold, 306 F.R.D. at 629; Roundtree, 304
F.R.D. at 653; Jenkins, 2015 WL 3658261, at *13. Accordingly, ascertainability of the consumer
nature of the debt is not a bar to class certification.2
II.

CONCLUSION
For the reasons set forth above and expressed at oral argument, Plaintiff’s motion for

certification of the class is GRANTED, pending the Court’s approval of Plaintiff’s amended class
definition. An appropriate Order accompanies this Opinion.
Dated: October 28, 2016
/s Madeline Cox Arleo
MADELINE COX ARLEO
United States District Judge

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After the class is certified, if Defendants or Third Party Defendant wish to challenge the consumer
nature of any of the debts, they may do so in individual cases. Gradisher, 203 F.R.D. at 277.
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