Diaz v. Residential Credit Solutions, Inc.
MEMORANDUM OF DECISION AND ORDER - It is hereby: ORDERED that the Plaintiffs 16 motion to certify a class is denied without prejudice with leave to renew upon the submission of evidence with respect to the Plaintiffs ability to adequately represent the class as required by Fed. R. Civ. P. 23(a)(4); and it is further ORDERED that any renewed motion by the Plaintiff for class certification should be in accordance with this Order, including the Courts finding that an appropriate class definition is as follows: (a) all individuals in New York (b) who were sent a letter in the form of the form letter attached to the Plaintiffs motion papers as Exhibit A, which was not returned as undeliverable, (c) on or after July 31, 2011, and on or before August 20, 2012; (d) concerning a loan that the Defendant acquired after it was in default. So Ordered by Judge Arthur D. Spatt on 1/23/2014. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ALTAGRACIA DIAZ, on behalf of herself and
all others similarly situated,
DECISION AND ORDER
12-CV-3781 (ADS) (ETB)
RESIDENTIAL CREDIT SOLUTIONS, INC.,
Attorneys for the Plaintiff
626 RXR Plaza
Uniondale, NY 11556-0626
By: Abraham Kleinman, Esq., Of Counsel
Edelman, Combs, Latturner & Goodwin, LLC
Attorneys for the Plaintiff
120 South LaSalle Street
Chicago, IL 60603
By: Cathleen M. Combs, Esq., & Tiffany N. Hardy, Esq., of Counsel
Lowenstein Sandler PC
Attorneys for the Defendant
1251 Avenue of the Americas
New York, NY 10020
By: Jason E. Halper, Esq., of Counsel
SPATT, District Judge.
On July 31, 2012, the Plaintiff Altagracia Diaz (“the Plaintiff”), on behalf of herself and
all others similarly situated, commenced this action against the Defendant Residential Credit
Solutions, Inc. (“the Defendant” or “RCS”) for alleged unlawful credit and collection practices
engaged in by the Defendant in violation of the Fair Debt Collection Practices Act, 15 U.S.C.
§ 1692 et seq. (“FDCPA”). Presently before the Court is the Plaintiff’s motion for class
certification pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 23. In this regard,
the Plaintiff seeks to certify a class defined as (a) all individuals in New York (b) who were sent
a letter in the form of the form letter attached to the Plaintiff’s motion papers as Exhibit A, which
was not returned as undeliverable, (c) on or after July 31, 2011, and on or before August 20,
For the reasons set forth below, the Court denies the Plaintiff’s motion without prejudice
with leave to renew upon the submission of evidence concerning the Plaintiff’s adequacy as the
class representative in this action.
The Defendant is a servicing company that manages performing and nonperforming
residential mortgage loans. According to the Plaintiff, the Defendant is a “special servicer,”
which means that it services distressed mortgages and attempts to collect on consumer mortgages
that are in default when the Defendant first becomes involved. (Amend. Compl., ¶ 6.)
On or about May 5, 2012, the Defendant sent a validation notice to the Plaintiff, an
individual, seeking to collect an alleged consumer debt. In this regard, the validation notice
claimed that the Plaintiff owed a sum to JP Morgan Mortgage Acquisition Corporation (“JP
Morgan”) in connection with a mortgage loan. The total debt was for $370,430.91.
According to the Plaintiff, the validation notice “is a form letter (designated OL0315)
which [the] [D]efendant uses for the purpose of attempting to comply with 15 U.S.C. § 1692g.”
(Amend. Compl., ¶ 9.) In addition, it is alleged that the “Plaintiff did not receive any other
document from [the] [D]efendant purporting to contain the initial disclosures required by 15
U.S.C. § 1692g.” (Amend. Compl., ¶ 10.)
The Defendant’s May 5, 2012 letter advised the Plaintiff as follows:
You may notify RCS in writing within thirty days of receipt
of this letter that the debt or any portion of the debt is disputed. If
no notice is received by RCS within the 30 day period, it will be
assumed that the above information is accurate and the debt is
valid. If/once written notice is received within the 30 day period,
RCS will obtain verification of the debt or a copy of a judgment
against you, the consumer. A copy of the verification of debt or
judgment will be mailed to the mailing address on record for you
along, with, if requested in writing, a statement that provides the
name and address of the original creditor.
(Amend. Compl., Exh. A.)
The Plaintiff asserts that this passage violates the FCPA, specifically 15 U.S.C.
§§ 1692g(a), 1692e, 1692e(2) and 1692e(10). In this regard, the Plaintiff alleges that the letter
(1) “[s]tates that any dispute that the debtor elects to send is to be in writing, when a writing is
only necessary to obtain verification of the debt or the identification of the original creditor”;
(2) indicates that the Defendant needs to receive notice that the debt is being disputed within the
30 day period, when the Plaintiff is only required to send her notice within that period and is not
required to guarantee receipt; (3) “[s]tates that ‘[i]f no notice is received by RCS within the 30
day period, it will be assumed that . . . the debt it is valid,” without limitation, when only RCS
and its principal may assume that it is valid”; (4) “[s]tates that all information set forth in the
letter concerning the debt will be assumed to be valid, including information which the debtor
knows nothing about and can know nothing about, such as whether RCS is holding any
‘unapplied funds’ and whether there is a negative ‘escrow balance,’” even though there is no
authorization for this found in 15 U.S.C. § 1692g; and (5) fails to notify the debtor that he has the
right to dispute a portion of the debt. (Amend. Compl, ¶ 12; Pl. Mem., pg. 2–4.)
A. Legal Standard for Class Certification
Before certifying a putative class, the Court must determine (1) whether the class meets
the four Rule 23(a) requirements of numerosity, commonality, typicality and adequacy; and if so,
(2) whether the class satisfies one of the three categories listed in Rule 23(b). See Brown v.
Kelly, 609 F.3d 467, 476 (2d Cir. 2010); Teamsters Local 445 Freight Div. Pension Fund v.
Bombardier, Inc., 546 F.3d 196, 202 (2d Cir. 2008); City of Livonia Employees' Ret. Sys. v.
Wyeth, 284 F.R.D. 17, 176–77 (S.D.N.Y. 2012). “The party seeking class certification bears the
burden of establishing by a preponderance of the evidence that each of Rule 23’s requirements
has been met.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010).
As the Supreme Court recently observed:
Rule 23 does not set forth a mere pleading standard. A party
seeking class certification must affirmatively demonstrate his
compliance with the Rule--that is, he must be prepared to prove
that there are in fact sufficiently numerous parties, common
questions of law or fact, etc . . . [S]ometimes it may be necessary
for the court to probe behind the pleadings before coming to rest
on the certification question, and  certification is proper only if
the trial court is satisfied, after a rigorous analysis, that the
prerequisites of Rule 23(a) have been satisfied. Frequently that
rigorous analysis will entail some overlap with the merits of the
plaintiff's underlying claim. That cannot be helped.
Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, __, 131 S. Ct. 2541, 2551, 180 L. Ed. 2d 374, 390
(2011) (citations and internal quotation marks omitted); see also Secs. Litig. v. Gen. Reinsurance
Corp. (In re Am. Int'l Group Inc.), 689 F.3d 229, 237 (2d Cir. 2012); Oakley v. Verizon
Comm’ns., Inc., No. 09 Civ. 9175(CM), 2012 WL 335657, at *12 (S.D.N.Y. Feb. 1, 2012)
(holding that while “[t]he certifying court should not make any factual findings or merits
determinations that are not necessary to the Rule 23 analysis, . . . where merits issues cannot be
avoided they must be addressed”). Thus, “the United States Supreme Court has made it clear
that courts cannot certify classes where Rule 23 requirements are not met, and should not contort
the requirements in order to certify.” Oakley, 2012 WL 335657, at *12.
However, in deciding certification, courts must still take a liberal rather than a restrictive
approach in determining whether the plaintiff satisfies Rule 23’s requirements and may exercise
broad discretion when determining whether to certify a class. See Flores v. Anjost Corp., 284
F.R.D. 112, 122 (S.D.N.Y. 2012); Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66,
69 (E.D.N.Y. 2000). Further, “[t]he dispositive question is not whether the plaintiff has stated a
cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are
met.” Kowalski v. YellowPages.com, LLC, 10 Civ. 7318 (PGG), 2012 WL 1097350, at *12
(S.D.N.Y. Mar. 31, 2012) (quoting Lewis Tree Service, Inc. v. Lucent Technologies, 211 F.R.D.
228, 231 (S.D.N.Y. 2002).
B. Legal Standard Under the FDCPA
“The FDCPA creates a general prohibition against the use of ‘false, deceptive, or
misleading representation or means in connection with the collection of any debt.’” Miller v.
Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003) (citing 15 U.S.C. § 1692e). In
this regard, 15 U.S.C. § 1692e(2), in relevant part, prohibits a debt collector from falsely
representing “the character, amount, or legal status of any debt[.]” 15 U.S.C. § 1692e(2)(A).
Also, § 1692e(10) proscribes a debt collector from “[t]he use of any false representation or
deceptive means to collect or attempt to collect any debt or to obtain information concerning a
In addition, pursuant to 15 U.S.C. § 1692g, debt collectors must “include a ‘validation
notice’ either in the initial communication with a consumer in connection with the collection of a
debt or within five days of that initial communication, which must inform the consumer that he
or she has certain rights, including the rights to make a written request for verification of the debt
and to dispute the validity of debt.” Miller, 321 F.3d at 309 (citing 15 U.S.C. § 1692g(a)). In
particular, § 1692g(a) requires that the validation notice include:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after
receipt of the notice, disputes the validity of the debt, or any
portion thereof, the debt will be assumed to be valid by the debt
(4) a statement that if the consumer notifies the debt collector in
writing within the thirty-day period that the debt, or any portion
thereof, is disputed, the debt collector will obtain verification of
the debt or a copy of a judgment against the consumer and a copy
of such verification of judgment will be mailed to the consumer by
the debt collector; and
(5) a statement that, upon the consumer’s written request within
the thirty-day period, the debt collector will provide the consumer
with the name and address of the original creditor, if different from
the current creditor.
See Nero v. Law Office of Sam Streeter, P.L.L.C., 655 F. Supp. 2d 200, 205 (E.D.N.Y. 2009).
“[U]nless a debt collector conveys this statutorily-required information, it violates the
[FDCPA].” Hecht v. Green Tree Servicing, LLC, Civil No. 3:12cv498(JBA), 2013 WL 164514,
at *2 (D. Conn. Jan. 15, 2013). Also, of relevance in the instant case, § 1692g(c) states that “the
failure of a consumer to dispute the validity of a debt under this section may not be construed by
any court as an admission of liability by the consumer.”
The Second Circuit has provided the following guidance for analyzing alleged violations
of § 1692(g):
“When determining whether § 1692g has been violated, an
objective standard, measured by how the ‘least sophisticated
consumer’ would interpret the notice received from the debt
collector, is applied.” Russell v. Equifax A.R.S., 74 F.3d 30, 34
(2d Cir. 1996) (citing Clomon [v. Jackson], 988 F.2d [1314, 1318
(2d Cir. 1993)] (holding that the least sophisticated consumer
standard applies to whether § 1692e has been violated)). “When a
notice contains language that ‘overshadows or contradicts’ other
language informing a consumer of her rights, it violates the
[FDCPA].” Id. (citing Graziano v. Harrison, 950 F.2d 107, 111 (3d
Cir. 1991)). “A debt collection notice is overshadowing or
contradictory if it fails to convey the validation information clearly
and effectively and thereby makes the least sophisticated consumer
uncertain as to her rights.” Savino v. Computer Credit, Inc., 164
F.3d 81, 85 (2d Cir. 1998).
Miller, 321 F.3d at 300. See also, Hecht, 2013 WL 164514, at *2 (“‘[E]ven if a debt collector
conveys the required information, the collector nonetheless violates the [FDCPA] if it conveys
that information in a confusing or contradictory fashion so as to cloud the required message with
uncertainty.’”) (citing DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001)).
Of importance, “the plaintiff’s actions in response to [a] collection letter are not
determinative of the question of whether there has been a violation of the FDCPA. Rather, the
issue is an objective one: namely, whether the language of the letter would mislead the least
sophisticated consumer.” Wyler v. Computer Credit, Inc., No. 04CV2762 CLP, 2006 WL
2299413, at *11 (E.D.N.Y. Mar. 3, 2006).
In addition, courts have found that “the FDCPA is a strict liability statute and, therefore,
does not require a showing of intentional conduct on the part of a debt collector.” Fasten v.
Zager, 49 F. Supp. 2d 144, 148 (E.D.N.Y. 1999); see also Moore v. Diversified Collection
Services, Inc., 843 F. Supp. 2d 280, 284 (E.D.N.Y. 2012). Instead, the court need only find
proof of a single violation of the FDCPA to establish civil liability against the debt collector.
See Bentley v. Great Lakes Collection Bureau, 6 F.3d 60 (2d Cir. 1993); Fasten, 49 F. Supp. 2d
at 148; Mateer v. Ross, Suchoff, Egert, Hankin, Maidenbaum & Mazel, P.C., No. 96 CIV.
1756(LAP), 1997 WL 171011, at *4 (S.D.N.Y. Apr. 10, 1997); Woolfolk v. Van Ru Credit
Corp., 783 F. Supp. 724 (D. Conn. 1990). However, “[a] debt collector may not be held liable . .
. if the debt collector shows by a preponderance of evidence that the violation was not intentional
and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably
adapted to avoid any such error.” 15 U.S.C § 1692k(c). A debt collector who is found to have
violated the FDCPA is liable for (1) actual damages; (2) statutory damages, not to exceed
$1,000; and (3) the costs of the action, including reasonable attorneys’ fees. 15 U.S.C.
§ 1692k(a); see also Nero, 655 F. Supp. at 209–10.
As a final matter, the Court notes that under the FDCPA, a “debt collector” is defined as
“any person who uses any instrumentality of interstate commerce or the mails in any business the
principal purpose of which is the collection of any debts, or who regularly collects or attempts to
collect, directly or indirectly debts owed or due or asserted to be owed or due another.” 15
U.S.C. § 1692a(6). The FDCPA excludes from the definition of “debt collector” “any person
collecting or attempting to collect any debt owed or due or asserted to be owed or due another to
the extent such activity . . . concerns a debt which was originated by such person [or] concerns a
debt which was not in default at the time it was obtained by such person[.]” Id.
As such, the actions of a mortgage servicer, like the Defendant, would only be covered
under the FDCPA if the debt at issue was acquired after the customer or debtor defaulted on the
loan in question. See Muniz v. Bank of America, N.A., No. 11 Civ. 8296(PAE), 2012 WL
2878120, at *5 (S.D.N.Y. July 13, 2012) (“[B]ecause plaintiffs fail to adequately allege that the
loan was in default [when it was obtained], they fail to allege that [the Defendant] is a “debt
collector” under the FDCPA.”); Costigan v. CitiMortgage, Inc., No. 10 Civ. 8776(SAS), 2011
WL 3370397, at *9 (S.D.N.Y. Aug. 2, 2011) (“The Amended Complaint does not allege that [the
plaintiff’s] loan was in default at the time [the defendant] ‘obtained’ that loan. As a result, [the
defendant] is excluded from the definition of ‘debt collector’ under the statute.”); Thomas v.
JPMorgan Chase & Co., 811 F. Supp. 2d 781, 801–02 (S.D.N.Y. 2011) (“[T]he [amended
complaint] does not allege that the loans of the named plaintiffs were in default at the time [the
defendant] ‘obtained’ those loans. As a result, [the defendant] is excluded from the definition of
‘debt collector’ under the statute.”); Zirogiannis v. Dreambuilder Investments LLC, 782 F. Supp.
2d 14, 19 (E.D.N.Y. 2011) (Spatt, J.) (“[W]hile the defendants implicitly admit that [one of the
defendants] acquired the plaintiff’s mortgage loan after it was in default, this fact is nowhere
alleged in the complaint. Without this allegation, the plaintiff has not stated a basis for treating
[that defendant] as a debt collector under the FDCPA.”).
C. As to Whether the Plaintiff Meets Rule 23(a) Requirements
To qualify for class certification, the Plaintiff must first prove that the putative class
meets the four threshold requirements of Rule 23(a):
(1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to the
class, (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a)(1)–(4); see also Salim Shahriar v. Smith & Wollensky Rest. Group, Inc.,
659 F.3d 234, 251 (2d Cir. 2011). As set forth below, the Court finds that the Plaintiff has met
three of the four Rule 23(a) requirements and, therefore, denies the Plaintiff’s motion for class
certification without prejudice with leave to renew.
Rule 23(a)(1), known as the numerosity requirement, requires that the class be “so
numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1).
“Impracticable,” in this context, does not mean impossible; instead Rule 23(a)(1) only requires
that, in the absence of a class action, joinder would be “simply difficult or inconvenient.” Russo
v. CVS Pharm., Inc., 201 F.R.D. 291, 294 (D. Conn. 2001); see also Robidoux v. Celani, 987
F.2d 931, 935 (2d Cir. 1993).
“There is no magic minimum number that will breathe life into a class, but generally,
courts will find a class sufficiently numerous when it comprises forty or more members.” Russo,
201 F.R.D. at 294 (citations and internal quotation marks omitted). “As plaintiff bears the
burden of demonstrating numerosity, he must show some evidence of or reasonably estimate the
number of class members.” Id. at 295. Therefore, while “evidence of exact size or identity of
class members is not required,” a plaintiff cannot rely on “pure speculation or bare allegations”
in order to demonstrate numerosity. Flores, 284 F.R.D. at 123 (citations and internal quotation
However, “in assessing numerosity[,] a court may [also] make common sense
assumptions without the need for precise quantification of the class.” Russo, 201 F.R.D. at 294;
see also Flores, 284 F.R.D. at 123. In addition, particularly when a class is not obviously
numerous, the Court should consider the following factors: “judicial economy arising from the
avoidance of a multiplicity of actions, geographic dispersion of class members, financial
resources of class members, the ability of claimants to institute individual suits, and requests for
prospective injunctive relief which would involve future class members.” Robidoux, 987 F.2d at
936; see also Pecere, 194 F.R.D. at 70; Martin v. Shell Oil Co., 198 F.R.D. 589, 590 (D. Conn.
In this case, the Plaintiff asserts that numerosity has been met, because the Defendant is a
mortgage company and therefore acquires portfolios of debts as opposed to individual debts. As
a result, according to the Plaintiff, it is reasonable to presume that the Defendant has sent a
similar form letter like the one the Plaintiff received to other alleged debtors. Further, the
Plaintiff points out that in 2010, the Defendant brought more than eighty mortgage foreclosure
suits in the state of New York and suggests that the defendants in these foreclosure actions
received a nearly identical form letter as the Plaintiff did.
Although the Defendant contests numerosity on the basis that the Plaintiff has not
presented the Court with significant proof that the requirement has been satisfied, it nevertheless
concedes that it sent a similar form letter to 720 individuals in New York during the period of
July 31, 2011 through August 20, 2012 and that 342 of those individuals who received the form
letter were not in default at the time that the Defendant began servicing their loans. (Curzan
Decl., ¶¶ 7–9.) Thus, the Court is able to reasonably estimate the size of the class as being 378
individuals, as that would have been the number of consumers who (1) received the form letter at
issue and (2) were in default at the time the Defendant began servicing their loans, so that the
Defendant was a debt collector subject to the requirements under the FDCPA. See Muniz, 2012
WL 2878120, at *5; Costigan, 2011 WL 3370397, at *9; Thomas, 811 F. Supp. 2d at 801–02;
Zirogiannis, 782 F. Supp. 2d at 19.
Therefore, while the Defendant raises concerns that the Plaintiff’s proposed class may be
over-inclusive, the Court finds that, with respect to numerosity, the Plaintiff has satisfied her
burden and that the class is sufficiently numerous based on the 378 figure provided by the
Defendant’s admissions. As stated above, the Court does not need evidence of exact class size or
identity of class, see Robidoux, 987 F.2d at 935, and may “make common sense assumptions
without the need for precise quantification of the class,” Russo, 201 F.R.D. at 294. Accordingly,
as the Court may reasonably infer that the 378 consumers are similarly situated, the Court finds
that Fed. R. Civ. P. 23(a)(1)’s numerosity requirement has been met.
“To satisfy the commonality requirement of Rule 23(a)(2), there must be ‘a showing that
common issues of fact or law exist and that they affect all class members.’” Kowalski, 2012 WL
1097350, at *13 (quoting Leone v. Ashwood Fin., Inc., 257 F.R.D. 343, 351 (E.D.N.Y. 2009)).
However, the individual circumstances of the class members can differ without precluding class
certification, so long as “the common questions are at the core of the cause of action alleged.”
Vengurlekar v. Silverline Techs., Ltd., 220 F.R.D. 222, 227 (S.D.N.Y. 2003); see also Kowalski,
2012 WL 1097350, at *13 (holding that “[t]he commonality standard does not mandate that the
claims of the lead plaintiff be identical to those of all other plaintiffs” but does “require[ ] that
plaintiffs identify some unifying thread among the members’ claims that warrants class
treatment”) (citations and internal quotation marks omitted).
In its 2011 decision in Wal-Mart Stores Inc. v. Dukes, the Supreme Court held that
“[c]ommonality requires the plaintiff to demonstrate that the class members have suffered the
same injury,” as opposed to simply “suffer[ing] a violation of the same provision of law.”
Dukes, 131 S. Ct. at 2551. In other words, “[t]heir claims must depend upon a common
contention . . . that it is capable of classwide resolution – which means that determination of its
truth or falsity will resolve an issue that is central to the validity of each one of the claims in one
stroke.” Id. at 2551. Thus, “[w]hat really matters to class certification . . . is not the raising of
common questions – even in droves – but, rather the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation.” Id. at 2551 (citations and
internal question marks omitted) (emphasis in original); see also Flores, 284 F.R.D. at 125.
Here, in opposition to the Plaintiff’s motion for class certification, the Defendant
contends that the commonality requirement of Fed. R. Civ. P. 23(a)(2) has not been met because
the Court will be required to make individual determinations as to whether each class member
was already in default at the time the Defendant began servicing the loan at issue. This is
because, as indicated above, the Defendant would only be considered a debt collector and thus
accountable under the FDCPA in those cases where it sent the form letter to consumers whose
loans were acquired by the Defendant after they were in default. See 15 U.S.C. § 1692a(6).
However, “[c]ommonality may be met even though individual circumstances differ, so
long as class members’ injuries derive from a unitary course of conduct.” Ramos v.
SimplexGrinnell LP, 796 F. Supp. 2d 346, 354 (E.D.N.Y. 2011) (quoting Noble v. 93 Univ.
Place Corp., 224 F.R.D. 330, 338 (S.D.N.Y. 2004) (in turn, quoting Marisol A. v. Giuliani, 126
F.3d 372, 377 (2d Cir. 1997))) (internal quotation marks omitted). Thus, in the Court’s view, the
Plaintiff has established commonality because the resolution of this action will rest on whether
the Defendant’s alleged conduct in sending the form letters violated numerous provisions of the
FDCPA. The only individual determination for the Court to make is the identity of the class
members, which can be simply resolved by reviewing the Defendant’s records. As explained
below, while the Court finds that some of the Defendant’s concerns are suitable considerations
with respect to the appropriateness of the Plaintiff’s proposed class definition, the Court does not
believe these concerns prevent a finding that the commonality requirement has been met.
Rule 23(a)(3) requires that “each class member’s claim arises from the same course of
events and each class member makes similar legal arguments to prove the defendant’s liability.”
Robidoux, 987 F.2d at 936. Known as the typicality requirement, this provision is meant to
ensure that the class representative is not subject to a unique defense which could potentially
become the focus of the litigation. Vengurlekar, 220 F.R.D. at 227. However, “[w]hen it is
alleged that the same unlawful conduct was directed at or affected both the named plaintiff and
the class sought to be represented, the typicality requirement is usually met irrespective of minor
variations in the fact patterns underlying individual claims.” Robidoux, 987 F.2d at 936–937;
see also Vengurlekar, 220 F.R.D. at 227 (holding that “the mere existence of individualized
factual questions with respect to the class representative’s claim will not bar class certification”)
(citations and internal quotation marks omitted).
In this case, the Defendant suggests more discovery is needed to determine if the
Plaintiff’s claims are typical of the putative class members. However, the Plaintiff’s claims are
straightforward so that the Court finds that additional discovery is unnecessary. Indeed, the
Plaintiff claims that she received a form letter from the Defendant that violated the FDCPA and
that the Defendant also sent similar form letters to the proposed class members. Thus, in
litigating this case, the Plaintiff and the potential class members will set forth the same claims
based on the alleged FDCPA violations in the form letters. As such, the Court finds that the
typicality requirement is met.
4. Adequacy of Representation
Rule 23(a)(4)’s adequacy of representation requirement requires that a plaintiff “also
show that the proposed action will fairly and adequately protect the interests of the class,”
Vengurlekar, 220 F.R.D. at 227, and “serves to uncover conflicts of interest between names
parties and the class they seek to represent,” Wyeth, 284 F.R.D. at 179. See Vengurlekar, 220
F.R.D. at 227 (“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest
between named parties and the class they seek to represent.”) (citation omitted).
In order to satisfy Rule 23(a)(4), a “plaintiff[ ] first must demonstrate that class counsel is
qualified, experienced, and generally able to conduct the litigation.” Id. (citations and internal
quotation marks omitted). Second, a plaintiff must “show that [he has] no interests that are
antagonistic to the proposed class members.” Id.
The Court finds that the Plaintiff has satisfied the first element under Rule 23(a)(4). The
Plaintiff’s counsel have extensive experience in litigating matters under the FDCPA both in class
actions and in individual suits. However, with respect to the second element of Rule 23(a)(4),
the Court agrees with the Defendant that the Plaintiff has presented no evidence concerning
whether the Plaintiff is an adequate representative of the class. Although it is likely, because she
shares identical claims with the proposed class members, that the Plaintiff does not have any
conflicts of interest, the Court still finds this fourth requirement of 23(a) to not be satisfied as the
Plaintiff fails to proffer any proof suggesting she will be able to adequately represent the
proposed class without any antagonistic interests.
In this regard, in Harrison v. Great Springwaters of America, Inc., No. 96-CV-5110, 1997
WL 469996 (E.D.N.Y. June 18, 1997), the court suggested that “courts generally certify
proposed representatives ‘as long as the plaintiff has some basic knowledge of the lawsuit and is
capable of making intelligent decisions based upon his lawyers’ advice.’” Id. at *7 (quoting
Kaplan v. Pomerantz, 131 F.R.D. 118, 122 (N.D. Ill. 1990)). Here, the Court has been provided
with no evidence concerning the Plaintiff’s basic knowledge of this lawsuit or whether she is
able to make intelligent decisions based on advice from her counsel.
Thus, in the Court’s view, the Plaintiff has not satisfied her burden of demonstrating she
is an adequate representative of the putative class. Absent any evidence, such as an affidavit or
declaration from the Plaintiff, the Court must find that the Plaintiff has not met the requirement
of Fed. R. Civ. P. 23(a). See, e.g., Leone v. Ashwood Financial, Inc., 257 F.R.D. 343, 352
(E.D.N.Y. 2009) (finding that the plaintiff has satisfied the requirements of Fed. R. Civ. P.
23(a)(4) where she “submitted an affidavit stating that she understands the responsibilities of a
class representative and has knowledge of this action.”) As a consequence, the Court denies the
Plaintiff’s motion for class certification without prejudice with leave to renew upon the
submission of proof that the Plaintiff (1) understands her role as a class representative; (2) is
knowledgeable about this action; and (3) has no known conflicts of interest with any of the
potential class members.
D. As to Whether the Plaintiff Meets the Rule 23(b)(3) Requirements
If on a renewed motion, the Plaintiff satisfies the adequacy of representation requirement
of Fed. R. Civ. P. 23(a)(4), the Court will then be required to consider whether the Plaintiff has
met the requirements of Fed. R. Civ. P. 23(b)(3). Therefore, in the interest of judicial economy
and because both parties have had the opportunity to present their arguments, the Court shall
now consider this issue.
As indicated above, once a plaintiff satisfies the four Rule 23(a) requirements, she must
also prove that the putative class is maintainable under at least one of the three categories
enumerated in Rule 23(b). See In re Visa Check, 280 F.3d at 133. In this case, the Plaintiff
seeks class certification under Rule 23(b)(3). A putative class is maintainable under Rule
23(b)(3) when “the court finds that questions of law or fact common to the members of the class
predominate over any questions affecting only individual members and that a class action is
superior to other available methods for the fair and efficient adjudication of the controversy.”
Fed. R. Civ. P. 23(b)(3). See In re Am. Int'l Group Inc., 689 F.3d at 239. As set forth below, the
Court finds that the Plaintiff has met the Rule 23(b)(3) requirements.
Rule 23(b)(3)’s predominance requirement “tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation” in order to “ensure that the class
will be certified only when it would achieve economies of time, effort, and expense, and promote
uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or
bringing about other undesirable results.” Myers, 624 F.3d at 547 (citations and internal
quotation marks and alterations omitted). Thus, while the commonality requirement of Rule
23(a)(2) mandates that common questions of law or fact exist among the putative class members,
the predominance requirement of Rule 23(b)(3) is more stringent and requires that such common
questions be the focus of the litigation. See Continental Orthopedic Appliances, Inc. v. Health
Insurance Plan of Greater New York, Inc., 198 F.R.D. 41, 44 (E.D.N.Y. 2000). Accordingly,
“the requirement is satisfied if resolution of some of the legal or factual questions that qualify
each class member’s case as a genuine controversy can be achieved through generalized proof,
and if these particular issues are more substantial than the issues subject only to individualized
proof.” Myers, 624 F.3d at 547 (citations and internal quotation marks omitted).
In this case, the common question presented is whether the form letter sent by the
Defendant to consumers violated numerous provisions of the FDCPA. In the Court’s view, the
non-common questions, such as a determination of the identity of the putative class members, are
not more substantial than the common question of whether the form letter was illegal. Indeed, as
discussed below, the question of the identity of the class members can be easily resolved by
modifying the Plaintiff’s proposed class definition. As such, predominance has been satisfied.
“The second prong of Rule 23(b)(3), commonly referred to as the superiority element,
requires the court to examine whether a class action is superior to other methods of
adjudication.” See Vengurlekar, 220 F.R.D. at 228. Four factors the Court should consider in
determining whether a class action is the superior method of adjudicating a putative class’ claim
are provided in Rule 23(b)(3):
(A) the interest of the members of the class in individually
controlling the prosecution or defense of separate actions; (B) the
extent and nature of any litigation concerning the controversy
already commenced by or against members of the class; (C) the
desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and (D) the difficulties likely to be
encountered in the management of a class action.
Fed. R. Civ. P. 23(b)(3). See also Oakley, 2012 WL 335657, at *18.
Here, “it appears the prosecution of this case as a class action would uphold the Court’s
interest in a fair and efficient adjudication better than a joint action among the putative class
would.” Nieves v. Cmty. Choice Health Plan of Westchester, Inc., 08 CV 321 (VB)(PED), 2012
WL 857891, at *3 (S.D.N.Y. Feb. 24, 2012). First, the amount of each class members individual
claims is very small so it is not likely that any of them would have a specific interest in
individually controlling the prosecution of the action. Further, even though the size of the class
reaches 378 members, because the Plaintiff’s attorneys have extensive experience with this type
of litigation, the Court finds it would be manageable.
Nevertheless, the Defendant argues that the superiority requirement has not been met
because (1) the Plaintiff offers no explanation as to why the putative class period should be
extended beyond one year, to August 20, 2012; and (2) the class definition only includes
consumers from New York as opposed to consumers nationwide, which could result in
piecemeal litigation. In reply, the Plaintiff asserts that (1) the FDCPA does not entitle to the
Defendant to the broadest possible class and (2) a statewide class is appropriate because a
number of states, not including New York, have state collection practice laws which give
consumers residing there additional rights and the Plaintiff does not have standing to represent
such claims. The Plaintiff further asserts that the August 20, 2012 cutoff date permitted the
Defendant twenty days after the July 31, 2012 filing of this lawsuit to correct its practices while,
at the same time, preventing the Defendant from paying one-percent of its net worth and
obtaining a legal license to continue its allegedly unlawful conduct.
The Court agrees with the Plaintiff. “[T]he language of [the] FDCPA does not support
the conclusion that the statute requires nationwide class certification,” especially because
“several problems aris[e] from requiring nationwide class certification in FDCPA cases,
including ‘a short, one-year statute of limitations making multiple lawsuits more difficult’ and
the problem of de minimis recovery.” Mailloux v. Arrow Financial Services, LLC, 204 F.R.D.
38, 43 (E.D.N.Y. 2001) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 343–44 (7th Cir
1997)); see also D’Alauro, 168 F.R.D. 451, 455 (E.D.N.Y. 1996) (“[T]he plain meaning of the
FDCPA does not require that the largest potential class be certified . . . . [A]n FDCPA class need
not include all potential plaintiffs and may be limited geographically consistent with the
legislative intent of the FDCPA.”). Rather, in FDCPA cases, courts have approved statewide
class actions as opposed to nationwide class actions, finding that “[s]uch a class will be more
easily managed by [the] [c]ourt” and would also assist class members “who might otherwise be
unwilling to travel to distant fora [to testify during the damages phase] for a relatively small
sum.” Macarz v. Transworld Systems, Inc. 193 F.R.D. 46, 57 (D. Conn. 2000); see also
Mailloux, 204 F.R.D. at 43 (approving a class of New York State consumers in an FDCPA Case
even though a similar action based on an identical collection letter was previously filed in
The Court is also satisfied with the Plaintiff’s explanation concerning why it seeks to
certify a class encompassing the period of July 31, 2011 until August 20, 2012. In the Court’s
view, it is sensible for the putative class period to be extended by twenty days so as to include
other consumers who may have received the allegedly illegal form letter from the Defendant
during that time. Accordingly, the Plaintiff has satisfied the superiority requirement.
E. As to the Plaintiff’s Proposed Class Definition
Once a court determines that class certification is appropriate, “[t]he next question is
whether the definition of the class proposed by [the] plaintiff[ ] . . . is an appropriate one.”
Brooklyn Ctr. for Independence of the Disabled v. Bloomberg, 287 F.R.D. 240, 250 (S.D.N.Y.
2012). In this regard, “[u]nder rule 23, district courts have the power to amend class definitions
or decertify classes as necessary . . . . ‘In fact, the court has a duty to ensure that the class is
properly constituted and has broad discretion to modify the class definition as appropriate to
provide the necessary precision.’” Id. (quoting Morangelli v. Chemed Corp., 275 F.R.D. 99, 114
In this case, the Court has denied the Plaintiff’s motion for class certification without
prejudice, finding that the Plaintiff has satisfied all but one of the requirements of class
certification under Fed. R. Civ. P. 23. Nevertheless, as the Court has provided the Plaintiff an
opportunity to renew her motion upon submission of evidence concerning the adequacy of
representation requirement, the Court shall address the Plaintiff’s proposed class definition.
Here, the Plaintiff seeks to certify a class of 378 consumers in the state of New York who
received substantially similar form letters and who claim that by sending these letters, the
Defendant violated the FDCPA. To that end, the Plaintiff proposes the following class
(a) all individuals in New York (b) who were sent a letter in the
form of the form letter attached to the Plaintiff’s motion papers as
Exhibit A, which was not returned as undeliverable, (c) on or after
July 31, 2011, and on or before August 20, 2012.
(Pl. Motion, Opening ¶.)
However, in the Court’s view, the Plaintiff’s proposed class definition is problematic
insofar as it is over inclusive. In this regard, the proposed class definition may include
individuals whose debts were acquired by the Defendant before they were in default, so that the
Defendant would not have been a debt collector subject to the provisions of the FDCPA when
acting to collect these debts. While the Defendant raised these concerns while challenging the
Plaintiff’s motion for class certification, the Court finds that these concerns can be adequately
addressed by modifying the Plaintiff’s proposed class definition, so as to clearly exclude those
individuals that fall outside the class.
As such, the Court finds the following to be an appropriate class definition in this case:
(a) all individuals in New York (b) who were sent a letter in the
form of the form letter attached to the Plaintiff’s motion papers as
Exhibit A, which was not returned as undeliverable, (c) on or after
July 31, 2011, and on or before August 20, 2012; (d) concerning a
loan that the Defendant acquired after it was in default.
For the foregoing reasons, it is hereby:
ORDERED that the Plaintiff’s motion to certify a class is denied without prejudice with
leave to renew upon the submission of evidence with respect to the Plaintiff’s ability to
adequately represent the class as required by Fed. R. Civ. P. 23(a)(4); and it is further
ORDERED that any renewed motion by the Plaintiff for class certification should be in
accordance with this Order, including the Court’s finding that an appropriate class definition is
as follows: (a) all individuals in New York (b) who were sent a letter in the form of the form
letter attached to the Plaintiff’s motion papers as Exhibit A, which was not returned as
undeliverable, (c) on or after July 31, 2011, and on or before August 20, 2012; (d) concerning a
loan that the Defendant acquired after it was in default.
Dated: January 23, 2014
____/s/ Arthur D. Spatt______
ARTHUR D. SPATT
United States District Judge
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