Glazer v. Chase Home Finance LLC et al

Filing 284

Opinion and Order. Defendants Reimer Law Co., Ronald Chernek and Darryl Gormley's Motion to Strike and Dismiss Class Allegations and Claims Contained in Third Amended Complaint (Related doc # 280 ) is granted. This case shall proceed o n Plaintiff's individual claims. Parties shall confer and submit to the Court, by 2/28/2019, a new proposed schedule to include a settlement conference and trial date to be held before the end of 2019. Judge Christopher A. Boyko on 2/15/2019. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

LAWRENCE GLAZER, ET AL.,
Plaintiff,
Vs.
REIMER LAW CO., ET AL.,
Defendant.

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CASE NO.1:09CV1262
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendants Reimer Law Co., Ronald Chernek and
Darryl Gormley’s Motion to Strike and Dismiss Class Allegations and Claims Contained in
Third Amended Complaint. (ECF # 280). For the following reasons, the Court grants the
Motion and Strike Plaintiff’s Class Allegations.
Background Facts
In 2003, Charles Klie purchased residential property near Columbus, Ohio. Klie
obtained a loan secured by a mortgage (“Loan”) from Coldwell Banker (“Coldwell”) for the
property. In September 2003, Coldwell sold and assigned the Loan to Federal National
Mortgage Corporation (“Fannie Mae”). Coldwell continued to service the Loan until October

2007, when it transferred the servicing rights to JP Morgan Chase (“Chase”). At the same
time, Coldwell assigned the servicing rights on the mortgage to JP Morgan. Chase assumed
the day-to-day servicing of the Loan on behalf of JP Morgan.
Klie maintained current payments on the Loan until his death in January 2008. His
fiduciaries, Plaintiff included, informed Chase that a probate proceeding in Franklin County,
Ohio would handle all of Klie’s debts, including the Loan. Chase did not file a creditor claim
in probate court. Around this time, Plaintiff came into possession of the property and the
Loan.
In May 2008, Chase, using a Twinsburg, Ohio law firm, Riemer, Arnovitz, Chernek &
Jeffrey Co. (“RACJ”), began foreclosure proceedings against the Loan. During the
foreclosure action, Plaintiff alleged that Chase falsely represented it was the owner and holder
of the Loan. Plaintiff filed this action alleging violations of the Fair Debt Collection Practices
Act (“FDCPA”) and state law claims against Chase and other named Defendants, including
RACJ and Cindy A. Smith. In addition, Plaintiff alleged that Defendants unlawfully entered
and damaged the property while winterizing it. Plaintiff also claimed that Defendants placed
new locks on the doors even though Plaintiff put a note on the house saying it was not
abandoned.
On March 31, 2010, the Court dismissed the federal claims against Chase, RACJ,
Smith and other Defendants. Because the Court dismissed all the federal claims, the Court
refused to exercise jurisdiction over the state law claims. On appeal, the United States Court
of Appeals for the Sixth Circuit affirmed, in part, and reversed, in part. The Sixth Circuit
found that this Court properly dismissed the claims against Chase, but that it erred in

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dismissing the claims against RACJ because a law firm conducting a mortgage foreclosure is
partaking in “debt collection” under the FDCPA. Glazer v. Chase Home Finance, LLC, 704
F.3d 453, 464 (6th Cir. 2013). In addition to reinstating the federal claims against RACJ, the
Sixth Circuit reinstated the state law claims as well. Plaintiff did not appeal the Court’s
decision to dismiss Smith. During the pendency of Plaintiff’s appeal, Plaintiff prosecuted his
state law claims in state court. Those claims were adjudicated and are no longer before this
Court.
Defendants’ Motion
According to Defendants, Plaintiff cannot proceed with a class action because he
seeks to represent the class not only as the Named Plaintiff but also as class counsel. Case
law provided by Defendants clearly demonstrates that a pro se plaintiff cannot fairly represent
a class under Federal Rule of Civil Procedure 23(a)(4). Plaintiff has either been unwilling or
unable to retain new counsel to litigate the action since the Court disqualified former counsel,
Plaintiff’s wife, as counsel in the action due, in part, to her being a witness in the case.
According to Defendants, Named Plaintiff also lacks experience in litigating class
actions of Fair Debt Collection Practices Act claims, such that even were he able to represent
a class while serving as the Named Plaintiff, his lack of experience would disqualify him from
consideration as class counsel. Furthermore, Plaintiff has expressly indicated he will not seek
to retain new counsel despite the Court giving him ample opportunity to do so. Plaintiff has
requested the Court appoint class counsel.
In addition, Defendants contend Plaintiff is an inadequate class representative because
he has an inherent conflict due to his wife’s prior representation in the case and because he

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seeks attorneys fees of over $600,000 and damages of over $1,500,000. Thus, his claims do
not share a common interest with the putative class. Given his reluctance to provide
discovery in the case and answer questions concerning his claims at deposition, Defendants
argue Plaintiff’s claims are antagonistic to the class.
Plaintiff’s Opposition
Plaintiff opposes the Motion to Strike, arguing that the Court lacks the authority to
strike class allegations. According to Plaintiff, he did not seek to proceed pro se, rather, the
Court prematurely disqualified Plaintiff’s wife from representing Plaintiff and the putative
class. Having convinced the Court to disqualify his wife, Plaintiff contends Defendants
should not benefit by their gamesmanship.
Plaintiff further contends the Court must apply Rule 23 and not Rule 12 in deciding
whether a plaintiff may proceed as a class action. Plaintiff argues that class certification is
not conditioned upon the adequacy of a class representative. That analysis occurs only after
the Court has determined whether a class may be certified under Rule 23. Finally, Plaintiff
asserts the Court should appoint class counsel if it finds a class may be certified.
Standard of Review
“If the Court determines that the Complaint does not allege facts that would satisfy the
demands of Rule 23, it may strike class action allegations prior to any motion for class
certification.” Progressive Health & Rehab Corp. v. Quinn Med., Inc., 323 F.R.D. 242, 244
(S.D. Ohio 2017) Geary v. Green Tree Servicing, LLC, No. 2:14–CV–00522, 2015 WL
1286347, at *15–16 (S.D. Ohio Mar. 20, 2015) (citing Pilgrim v. Univ. Health Card, LLC,
660 F.3d 943, 949 (6th Cir. 2011); Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935,

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941–44 (9th Cir.2009)).
Federal Rule of Civil Procedure 12(f) reads, “the court may strike from a pleading and
insufficient defense or any redundant, immaterial, impertinent or scandalous matter.”
“Motions to strike are generally disfavored, and the resolution of such motions is reserved to
the sound discretion of the trial court.” Wausau Benefits v. Progressive Ins. Co., 270
F.Supp.2d 980 (S.D. Ohio 2003). “A Rule 12(f) motion is designed ‘to avoid the expenditure
of time and money that must arise from litigating spurious issues by dispensing with those
issues prior to trial.’” Kennedy v. Cleveland, 797 F.2d 297, 305 (6th Cir.1986). “In class
actions, the Sixth Circuit has held that when discovery cannot cure the central defect in the
class claim, class allegations may be stricken from the complaint.” Pilgrim v. Universal
Health Card, LLC, 660 F.3d 943, 949 (6th Cir.2011). World, L.L.C v. Atlas Choice Corp.,
No. 1:15 CV 24, 2015 WL 2381624, at *2 (N.D. Ohio May 19, 2015).
Named Plaintiff as Class Counsel
Here, the central issue before the Court is the obvious conflict of interest presented
when a named pro se plaintiff also seeks to represent the putative class. Plaintiff argues it
was not his choice to do so, rather, the Court disqualified Plaintiff’s wife as proposed class
counsel due, in part, to her being a material witness. However, it is undisputed Plaintiff has
expressly represented he will not obtain new counsel despite the Court having provided him
with ample opportunity to do so.
While generally it would be more appropriate to address this issue on a Motion for
Class Certification under the particular facts and history of this case, the Court finds a Motion
to Strike appropriate given that class discovery would not elicit further facts that would

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potentially preserve the class claims. Instead, were the Court to deny the Motion as
procedurally improper, it would only result in the same foregone conclusion, denial of class
certification, in yet another round of motion practice and would result in needless further
delay of this already ancient case. Because Plaintiff’s status as Named Plaintiff and proposed
class counsel militates against class certification whether in a motion to strike, motion to
dismiss or class certification opposition, further delay is unnecessary.
Ultimately, it appears that no court (in any circuit) has meaningfully challenged the
proposition that class counsel himself cannot also be a named plaintiff. The few circuits
which have adopted a case-by-case analysis rather than a per se prohibition have done so in
the context of a business partner, spouse and others in the same category, and not the attorney
himself.
The Sixth Circuit has held that “the roles of class representative and of class attorney
cannot be played by the same person.” Turoff v. May Co., 531 F.2d 1357, 1360 (6th Cir.
1976). In that case, four named plaintiffs attempted to represent a class of similarly-situated
May Co. customers. Id. Of the four named plaintiffs, three were attorneys at the law firm of
counsel and one was one of the attorney’s wife. Id. The court held that it would be
impossible for the law firm in question to fairly and adequately represent the class in such a
situation because it presents an “inherent conflict of interests.” Id. The court further
expressed concern that such an arrangement would encourage “manufactured litigation” and
would “cloud” the proceedings. Id. Therefore, the Sixth Circuit upheld the district court’s
denial of class certification in that case. Id.

Likewise, a court within this district granted a

Motion to Strike Class Allegations because named plaintiff also sought to represent the

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putative class. See World, L.L.C v. Atlas Choice Corp., No. 1:15 CV 24, 2015 WL 2381624,
at *2 (N.D. Ohio May 19, 2015). While certainly not this Court’s preferred method to
address this issue, this case has languished through many fits and starts, involving unique
issues of law and procedure that have delayed resolution. It is apparent at this stage that
Plaintiff cannot or will not cure the defect presented in his status as proposed class
representative and class counsel. As Sixth Circuit caselaw is clear he cannot be both, the
Court grants Defendants’ Motion and Strikes the class allegations in Plaintiff’s Third
Amended Complaint.
The Court further declines to appoint counsel to represent the putative class. First,
because there is “no constitutional right to appointed counsel in a civil case.” See AbdurRahman v. Mich. Dep't of Corn, 65 F.3d 489, 492 (6th Cir. 1995). Second, Plaintiff’s
reluctance to seek new counsel weighs strongly in this Court’s mind that he does not have the
best interests of the class in mind. Finally, there is no proposed counsel other than Named
Plaintiff and his already disqualified wife, for the court to consider. See Howard v. Pollard,
814 F.3d 476, 479(7th Cir. Dec. 29, 2015). (Appointing class counsel would have been denied
because “the petitioners gave no indication that they had made any effort to retain counsel
themselves.”) “But the purpose of Rule 23(g) is not to enable pro se plaintiffs to obtain
recruited counsel in conjunction with class certification; the purpose of the rule is to ensure
that the proposed class counsel is adequate.” Id at 478. The Court in Howard in a footnote,
further noted that it was a sound reason to deny class certification because named plaintiffs
sought to represent the putative class pro se. Id pg. 479, fn 1.
Therefore, for the foregoing reasons, the Court grants Defendants’ Motion to Strike

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the Class Allegations. This case shall proceed on Plaintiff’s individual claims. Parties shall
confer and submit to the Court, no later than February 28, 2019, a new proposed schedule to
include a settlement conference and trial date to be held before the end of 2019.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: February 15, 2019

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