TRUNZO et al vs CITI MORTGAGE et al
OPINION. Signed by Judge Mark R. Hornak on 2/7/18. (bdb)
IN THE UNITED ST ATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALEXANDRA R. TRUNZO and ANTHONY )
Civil Action No. 2:11-cv-01124
Judge Mark R. Hornak
CITI MORTGAGE, et al.,
Mark R. Hornak, United States District Judge
Before the Court is the latest motion to dismiss filed in the now eight-year litigation of
this case: Defendant Phelan Hallinan & Schmieg, LLP's ("PHS's") Motion Pursuant to Rule
l 2(b )( 6) to Dismiss the Class Allegations of the Third Amended Complaint, ECF No. 313
("Motion"). For the reasons that follow, PHS's Motion is denied.
This case has a long and complex procedural history. 1 The Court's Opinion in Trunzo III,
issued on August 29, 2014, boiled Plaintiffs Alexandra Trunzo and Anthony Hlista's
(collectively "Plaintiffs") case down to the following claims: (1) as against CitiMortgage
("Citi"), one individual claim under the Unfair Trade Practice and Consumer Protection Law
("UTPCPL"); (2) as against PHS, one claim under the federal Fair Debt Collection Practices Act
("FDCPA") and one claim under the UTPCPL; and (3) as against Seterus, Inc. ("Seterus"), one
This Court explained the facts giving rise to this case in Trunzo v. Citi Mortgage, 876 F. Supp. 2d 521 (W.D. Pa.
2012) ) ("Trunzo !"), also available at ECF No. 74, reconsideration denied (July 23, 2012); Trunzo v. Citi
Mortgage, 2014 WL 1317577 (W.D. Pa. Mar. 31, 2014) ("Trunzo fl"), also available at ECF No. 171; and Trunzo
v. Citi Mortgage, 43 F. Supp. 3d 517 (W.D. Pa. 2014) ("Trunzo Ill"), also available at ECF No. 207. The Court
writes primarily for the benefit of the parties, so it need not reiterate the facts here. This Opinion becomes Trunzo
claim under the FDCP A, one claim under the UTPCPL, and one claim for unjust enrichment.
(Trunzo III, ECF No. 207, at 29, also available at 43 F. Supp. 3d at 537.) The Court stayed this
case on February 26, 2015, pending the decision in Kaymark v. Bank of America, 783 F.3d 168
(3d Cir. 2015). (Order Granting Stay, ECF No. 233.) In February 2016, the Court ordered the
parties to file an updated ADR Stipulation. (ECF No. 252.)
Ci ti and Plaintiffs reached a settlement agreement prior to the scheduled mediation set for
July 22, 2016. (ECF Nos. 258, 264.) Seterus and Plaintiffs reached a settlement as a result of that
mediation. (ECF No. 264.) Stipulations of settlement were filed on September 30, 2016, (ECF
Nos. 276, 277) and approved by the Court on October 3, 2016, without hearings. 2 (ECF Nos.
Plaintiffs then filed their Third Amended Class Action Complaint ("T ACAC") on March
8, 2017. (ECF No. 312.) PHS is now the last remaining Defendant in this case. Only one class
claim remains-alleged violation of the FDCPA, 15 U.S.C. § 1692. 3 The class description has
also evolved throughout the pleading phase, but the operative T ACAC pleads a purported class
[A]ll former or current homeowners (sometimes referred to as "Homeowners") who
obtained financing secured by a first mortgage on property located within the
Commonwealth of Pennsylvania, wherein (i) [PHS]'s records show that a demand for
alleged foreclosure fees and costs was made in standardized communications (i.e.,
letters or complaints) and (ii) those foreclosure fees/costs had not been incurred at the
time the communication was made. These "foreclosure fees and costs" include some
or all of the following: Prothonotary I Court Costs, Additional Foreclosure Costs, and
Despite argument back and forth in the briefs, PHS acknowledged at Oral Argument on October 3, 2017, that a
fairness hearing following the settlements was not required by the Federal Rules of Civil Procedure or any statute at
that procedural juncture. ECF No. 359, 14:9-12. But PHS maintains that the lack of transparency of the terms of the
settlement, the lack of notice to purported class members, and the absence of a hearing are indicators that Plaintiffs
do not have the best interests of the purported class in mind. Def.'s Reply Mero., ECF No. 328, at 7 (Plaintiffs
"were not required to seek court approval of their settlement. However, the [previously cited] cases show that it is
strongly advisable to do so because it eventually and inevitably will be an issue in terms of the adequacy of
representation and the fairness to the class. Here, there can be little question that Plaintiffs, in the words of their own
counsel "sold out the class" .... ) (emphases in original).
Plaintiffs did not re-plead any claims under the UTPCPL against PHS in the T ACAC. See ECF No. 312; ECF No.
325, at 4 ("Plaintiffs agreed to dismiss the UTPCPL claim").
Attorney Fees. Only communications made within one year of the date the original
Complaint in this case was filed are included within the class.
(TACAC, ECF No. 312, iJ 33.)
PHS argues that the settlements with Citi and Seterus has created a "sea change" in the
landscape of this case. In its Motion, PHS seeks to dismiss the sole class claim against it
pursuant to Rule 12(b)(6). Given that PHS seeks to attack the class allegations on the basis that
the purported class lacks ascertainability, typicality, and adequacy of representation, the Court
will treat the Motion as one to strike the FDCP A class claim. In the alternative, PHS asks this
Court to narrow the class definition. In the course of the extensive briefings by the parties, PHS
also raised a mootness argument with regard to the entire case. 4 The Court will address the
mootness issue first.
"Mootness asks 'whether changes in circumstances that prevailed at the beginning of the
litigation have forestalled any occasion for meaningful relief."' Ehrheart v. Verizon Wireless,
609 F.3d 590, 596 (3d Cir. 2010) (quoting Artway v. Att'y Gen. of NJ, 81F.3d1235, 1246 (3d
Cir. 1996)). The mootness doctrine demands that a "requisite personal interest that must exist at
the commencement of the litigation (standing) must continue throughout its existence
(mootness)." U.S. Parole Comm 'n v. Geraghty, 445 U.S. 388, 397 (1980).
A case becomes moot when the issues presented before the Court are no longer "live" or
"the parties lack a legally cognizable interest in the outcome." Ehrheart, 609 F.3d at 596
(quoting Donovan ex. rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 216 (3d Cir.
PHS directly put the mootness issue before the Court in its Reply Brief. (ECF No. 328.) The Court authorized
Plaintiffs to respond in their Sur-Reply in Opposition. (ECF No. 336.) Then, the Court authorized another round of
briefings on the issues. (See ECF Nos. 341, 348.) After all of the briefing concluded, the Court heard Oral Argument
on October 3, 2017. (ECF No. 357.) The Court allowed the parties to file supplemental summaries of the arguments,
which both PHS and Plaintiffs did. (See ECF Nos. 360, 361.)
2003)). "If developments occur during the course of adjudication that eliminate a plaintiffs
personal stake in the outcome of a suit or prevent a court from being able to grant the requested
relief, the case must be dismissed as moot." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690,
698-99 (3d Cir. 1996).
Article III mootness has often been considered a more "flexible" requirement than the
other justiciability requirements, especially in class action litigation. Richardson v. Dir. Fed.
Bureau of Prisons, 829 F.3d 273, 278 (3d Cir. 2016). The Third Circuit has "recognized that 'in
the class action context, special mootness rules apply' for determining at what point in time a
named plaintiff must still have a personal stake in the litigation to continue seeking to represent a
putative class action." Id. at 278-79 (quoting Brown v. Phi/a. Haus. Auth., 350 F.3d 338, 343 (3d
b. Dismissal or Limitation of Class Allegations
"The class action is an exception to the usual rule that litigation is conducted by and on
behalf of the individual named parties only." Wal-Mart Stores v. Dukes, 564 U.S. 338, 348
(2011) (quotation marks omitted). "To invoke this exception, every putative class action must
satisfy the four requirements of Rule 23(a) and the requirements of either Rule 23(b)(l), (2), or
(3)." Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 591 (3d Cir. 2012) (citing Fed. R. Civ. P.
23(a)-(b)). To satisfy Rule 23(a),
( 1) the class must be "so numerous that j oinder of all members is impracticable"
(numerosity); (2) there must be "questions of law or fact common to the class"
(commonality); (3) "the claims or defenses of the representative parties" must be
"typical of the claims or defenses of the class" (typicality); and (4) the named
plaintiffs must "fairly and adequately protect the interests of the class" (adequacy
of representation, or simply, adequacy).
Jn re Cmty. Bank of N. Va., 622 F.3d 275, 291 (3d Cir. 2010) (quoting Fed. R. Civ. P. 23). Rule
23(b)(2) provides that "[a] class action may be maintained if Rule 23(a) is satisfied and if ... (2)
the party opposing the class has acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting
the class as a whole." Fed. R. Civ. P. 23(b)(2). Rule 23(b)(3) provides that "[a] class action may
be maintained if Rule 23(a) is satisfied and if ... the court finds that the questions of law or fact
common to class members predominate [predominance] over any questions affecting only
individual members, and that a class action is superior [superiority] to other available methods
for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).
Under Rule 23(d)(l)(D), a court may "require that the pleadings be amended to eliminate
allegations about representation of absent persons and that the action proceed accordingly." Fed.
R. Civ. P. 23(d)(l)(D). However, courts grant motions to strike under Rule 23(d)(l)(D) before
class discovery only in "the rare few [cases] where the complaint itself demonstrates that the
requirements for maintaining a class action cannot be met," Goode v. LexisNexis Risk & Info.
Analytics Grp., Inc., 284 F.R.D. 238, 246 (E.D. Pa. 2012) (quoting Landsman & Funk P.C. v.
Skinder-Strauss Assocs., 640 F.3d 72, 93 n.30 (3d Cir. 2011 )), and "no amount of discovery will
demonstrate that the class can be maintained." Id. at 245; see also Woodard v. FedEx Freight E.,
Inc., 250 F.R.D. 178, 182 (M.D. Pa. 2008) (noting that a "district court will strike class
allegations without permitting discovery or waiting for a certification motion where the
complaint and any affidavits clearly demonstrate that the plaintiff cannot meet the requirements
for a class action"). As the Supreme Court has noted:
Sometimes the issues are plain enough from the pleadings to determine whether
the interests of the absent parties are fairly encompassed within the named
plaintiffs claims, and sometimes it may be necessary for the court to probe
behind the pleadings before coming to rest on the certification question.
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982).
"The plaintiff bears the burden of advancing a prima facie showing that the class action
requirements of Fed. R. Civ. P. 23 are satisfied or that discovery is likely to produce
substantiation of the class allegations." Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir.
1985). Absent such a showing, a trial court's refusal to allow class discovery is not an abuse of
In general, "[s]ettlement of a plaintiffs claims moots an action." Lusardi v. Xerox Corp.,
975 F.2d 964, 974 (3d Cir. 1992). And, "when claims of the named plaintiffs become moot
before class certification, dismissal of the action is required." Id. PHS argues that Plaintiffs'
settlement with Seterus, resulting in the dismissal of the FDCP A claim against Seterus, moots
Plaintiffs' own FDCPA claim against PHS. PHS alleges that FDCPA, pursuant to 15 U.S.C.
§1692k(a), authorizes a maximum of $1,000 in statutory damages for each plaintiff per action
regardless of the number of defendants or the number FDCPA violations. 5 Def.'s Supp. Mem.,
ECF No. 360, at 2-5. In this case, since there are two named Plaintiffs, 6 PHS contends that the
total statutory FDCPA recovery available to these two individuals would be a firm $2,000, even
though Plaintiffs pled FDCP A violations against both Seterus and PHS based on separate and
independent conduct. PHS further alleges that the settlement with Seterus was in excess of
$2,000, so Plaintiffs are not necessarily entitled to any additional award for any FDCPA
Section l 692k(a) provides the amount of damages available for civil liability in both individual actions and class
actions. Subparagraph 1692k(a)(2)(A) authorizes up to $1,000 in statutory damages "in the case of any action by an
individual." Subparagraph 1692k(a)(2)(B) authorizes "such amount for each named plaintiff as could be recovered
under subparagraph (A)" in class action cases. In other words, under either subparagraph (A) or (B), in an individual
or class action, each of the named Plaintiffs in this case could recover no more than $1,000 in statutory damages
against PHS. Combined, Plaintiffs themselves could recover no more than $2,000 in statutory damages regardless of
whether the Court looks at this issue from the individual action or class action lens. Subparagraph 1692k(a)(2)(8)
goes on to provide a statutory damages cap for the other class members in a class action: "the lesser of $500,000 or 1
per centum of the net worth of the debt collector."
Named Plaintiffs Alexandra Trunzo and Anthony Hlista are a married couple, and both were on the mortgage that
eventually led to these claims. See T ACAC,, 3.
violations pled against PHS. In other words, by Seterus settling its own FDCPA claim with
Plaintiffs in excess of the statutory damages cap, PHS says that it need no longer answer for its
own alleged FDCP A violations. After all, says PHS, Plaintiff chose to bring all their FDCP A
claims in this one action, and there is a "per action" damages cap, so litigation of all FDCP A
claims is over.
Plaintiffs on the other hand advocate that § 1692k authorizes a maximum of $1,000 in
statutory damages for each plaintiff per action per defendant. Pls.' Resp. to Def. 's Sur-Reply,
ECF No. 348, at 2-7. While Plaintiffs acknowledge that the number of the violations is irrelevant
for purposes of statutory damages, Plaintiffs argue the number of defendants is not irrelevant,
especially when those defendants allegedly committed independent and distinct FDCP A
violations. Therefore, Plaintiffs assert that they are still entitled to up to $2,000 in statutory
damages from PHS for all FDCP A violations by PHS, regardless of their settlement with Seterus.
With these contentions, the parties have hit upon a major split among United States
District Courts, and this split has not been resolved by our Court of Appeals. 7 This Court need
not pick sides today. Built into PHS's logic (that the remaining FDCPA claim is moot because
the Seterus settlement gave Plaintiffs full individual FDCP A relief) are its necessary assumptions
that the settlement with Seterus, whatever the number was, (1) can be allocated among claims
Compare Jones v. Inv. Retrievers, LLC, No. 10-cv-1714, 2011 U.S. Dist. LEXIS 44138 (M.D. Pa. Apr. 25, 2011 ),
Green v. Monarch Recovery Mgmt., 997 F. Supp. 2d 932 (S.D. Ind. 2014), Wilson v. NACM-Or Serv. Co., No. 1201515, 2013 U.S. Dist. LEXIS 178234, at *33 (D. Or. Dec. 19, 2013), Ganske v. Checkrite, Ltd., No. 96-cv-0541,
96-cv-0743, 1997 U.S. Dist. LEXIS 4345, at *12 (W.D. Wis. Jan. 6, 1997), Gamboa v. Carruthers, No. IO-cv-1473,
20 I 0 U.S. Dist. LEXIS 127840, at *3 (M.D. Fla. Nov. 19, 20 I 0), and Overcash v. United Abstract Grp., 549 F.
Supp. 2d 193 (N.D.N.Y. 2008), with Goodmann v. People's Bank, 209 F. App'x 111, 113 (3d Cir. 2006), Weiss v.
Regal Collections, 385 F.3d 337, 340 (3d Cir. 2004), as amended (Oct. 22, 2004), abrogated on other grounds by
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), Blandina v. Midland Funding, LLC, No. l 3-cv-1179, 2015
U.S. Dist. LEXIS 12621, at *4-6 (E.D. Pa. Feb. 2, 2015), Lowe v. Elite Recovery Sols. L.P., No. 07-cv-0627, 2008
U.S. Dist. LEXIS 8353, at *6 (E.D. Cal. Feb. 4, 2008), Dowling v. Kueker Kraus & Bruh, LLP, No. 99-cv-11958,
2005 U.S. Dist. LEXIS 11000, at *10 (S.D.N.Y. June 6, 2005), and Martinez v. Scott, No. 10-cv-1619, 2011 U.S.
Dist. LEXIS 90630, at *12 (S.D. Tex. Aug. 12, 2011).
(here, to moot the claim, full FDCP A relief for both Plaintiffs would require a minimum FDCP A
allocation of $2,000, notwithstanding that there were two other settled claims against Seterus:
unjust enrichment and UTPCPL), and (2) settlement necessarily constitutes an admission of
liability or an offer of judgment under the FDCP A. Without the first assumption, there is still
some room under "the cap" for FDCPA statutory damages as to PHS. Without the second
assumption, any money received by Plaintiffs cannot be definitely "categorized" as FDCP A
damages. To the point, as to the second assumption, PHS is essentially seeking to use FDCPAallocated settlement funds to off-set one hundred percent (100%) of its own potential liability
under the FDCP A. Unless the Court can conclude both assumptions are true, at least some
statutory damages could remain available to Plaintiffs, and their individual claims would not
have been mooted.
PHS cites to FDCP A cases involving offers of judgment to support its position. However,
a settlement is not synonymous with an offer of judgment. Wolff v. Royal Am. Mgmt., 545 F.
App 'x 791, 794 (11th Cir. 2013) ("[E]ven if the plaintiff accepted the offer, without an offer of
judgment, full relief had not been offered."); Cohen v. Am. Credit Bureau, Inc., No. 10-cv-5112,
2012 WL 847429, 2012 U.S. Dist. LEXIS 33687, at *9 n.5 (D.N.J. Mar. 13, 2012) ("Settlement
offers are not offers of judgment pursuant to Federal Rule of Civil Procedure 68. Thus,
Defendant exposed itself to increased fees and costs by not offering judgment.").
PHS asserts that the mere fact of settlement implies something was allocated to the
FDCP A claim in the Seterus settlement, and it asks this Court to essentially credit PHS with the
full impact of Seterus's settlement funds that maybe were (or maybe were not) allocated to that
specific FDCPA claim. The Court cannot accept that request. Here's why:
Determining after the fact how parties to a general settlement valued various
claims in arriving at their settlement is inherently difficult. Consequently, such
valuations would be unlikely to represent precisely what factors each party
weighed and how it valued them in reaching the settlement. To add to the
uncertainty, the settling defendants would ordinarily have no interest in how the
proceeds were allocated among the various claims. On the other hand, the plaintiff
would have a real interest in aggrandizing by hindsight the amounts attributable to
the claims now known to have been decided in favor of the defendant.
Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 425, 436 (3d Cir. 1993)
(recognizing that while a plaintiff is entitled to only one full recovery, amounts received in
settlement based on different theories of liability should not set-off a jury award against a nonsettling defendant).
Gulfstream addressed set-offs among jointly and severally liable
codefendants. While this is not a case of jointly and severally liable codefendants, this Court
finds support in this analysis for its conclusion that it should not allocate any of the settlement
funds from the settlement with Seterus to the live FDCP A claim against PHS absent
demonstratively clear record that such must be the case.
Beyond the reality that such an allocation would require a combination of mind-reading
and peering behind the confidentiality curtain that exists in mediation, the fact remains that
Plaintiffs originally brought FDCP A claims against PHS and Seterus for independent and distinct
conduct. 8 PHS and Seterus each sent letters that allegedly distinctly violated the FDCP A.
Plaintiff has thus shown that its "settlement or part thereof did not represent damages arising
under the same theory of liability as those forming" the theory of liability against PHS. Id. at 445
n.3. Under the Gulfstream rational, the Court should treat the settlement proceeds from Seterus
and the available damages as against PHS as distinct from one another for purposes of
PHS disputes that the FDCPA claim differs between PHS and Seterus because PHS was alleged to be a defendant
as to the November 9th and December 6th correspondence in both the original and First Amended Complaints. See
ECF No. 328, at 9. This was briefly addressed at Oral Argument on October 3, 2017, where Plaintiffs pointed out
that there are four letters at issue in this case, two sent by Seterus and two sent by PHS. The Court analyzed these
letters in Trunzo I, providing a chart showing which Defendant sent which letter and showing completely different
quoted costs in just about every letter. See ECF No. 74, at 6. Given this lack of record support for PHS's theory, the
Court rejects PHS's argument that different letters sent by different Defendants citing contradictory costs and fees
could not give rise to separate theories of FDCPA liability as a matter of law.
calculating available statutory damages, even if Congress did intend for independent FDCP A
claims brought in the same cause of action to be assessed under one sole damages cap. In this
case, absent any offers of judgment or other docket activity demonstrating that the full $2,000
FDCP A damages cap was in fact met, and in light of the fact that the theories of FDCP A liability
against PHS and Seterus differed, the settlement proceeds from Seterus cannot be considered to
be in full satisfaction of the FDCP A claims against PHS.
Therefore, there may well still be statutory damages on the table as to Plaintiffs' claim of
FDCPA liability against PHS, and the case is not moot. 9 Furthermore, since there is only one
defendant left in the case, the Court need not decide in this case the "per defendant" question.
Concluding there is still a live case or controversy, the Court now turns to the essential
elements of Plaintiffs' class claim. PHS challenges the asserted ascertainability, commonality,
typicality, and adequacy of the class. Each is discussed below in tum.
As explained above, "sometimes the issues are plain enough from the pleadings to
determine whether the interests of the absent parties are fairly encompassed within the named
plaintiff's claims." Falcon, 457 U.S. at 160. "The plaintiff bears the burden of advancing a
prima facie showing that the class action requirements of Fed. R. Civ. P. 23 are satisfied or that
discovery is likely to produce substantiation of the class allegations." Mantolete, 767 F.2d at
1424. PHS has only challenged the Rule 23(a) factors, so this Court need not discuss the Rule
23(b)(2) or (b)(3) factors.
The Court need not delve into the "special mootness rules" that can save a class action when a plaintiffs individual
claim is mooted by actions of the defendant(s). Richardson, 829 F.3d at 278.
"The ascertainability requirement as to a Rule 23(b)(3) class is consistent with the
general understanding that the class-action device deviates from the normal course of litigation
in large part to achieve judicial economy." Byrd v. Aaron's Inc., 784 F.3d 154, 162 (3d Cir.
2015). It is a distinct requirement, a "prerequisite" or "implicit requirement" to the Rule 23
factors, that requires its own analysis. Id. "The ascertainability inquiry is two-fold, requiring a
plaintiff to show that: (1) the class is 'defined with reference to objective criteria'; and (2) there
is 'a reliable and administratively feasible mechanism for determining whether putative class
members fall within the class definition."' Id. at 163 (quoting Hayes v. Wal-Mart, 725 F .3d 349,
355 (3d Cir. 2015)).
In Marcus, our Court of Appeals concluded that the proposed class was not ascertainable
because the plaintiffs could not identify cars with the allegedly defective "run-flat" tires. 687
F.3d at 593. The defendants did not have sufficient records that would demonstrate whether a
putative class member's run-flat tires met the class definition, and the plaintiffs failed to offer "a
reliable, administratively feasible alternative" to identify class members. Id. at 595.
In Byrd, our Court of Appeals concluded that the proposed class was ascertainable
because objective records in the defendant's possession could readily identify the computers
upon which the spyware function had been activated and those records could also identify the
customer who leased or purchased those specific computers. 784 F.3d at 169. That Court
dismissed the district court's concern that the proposed class was "overly broad" as a concern
outside the scope of the Third Circuit's ascertainability test.
Here, Plaintiffs point to similarities in their proposed methods of ascertaining class
members and the proposed methods applied in Byrd. PHS allegedly has business records and
billing records that can alone identify who fits within the class description, and Plaintiffs say that
sifting through these records to determine which of those individuals meet the class description is
"administratively feasible." PHS asserts that a determination of whether fees had been incurred
at the time a communication was made cannot be determined on the face of a reinstatement letter
or other communication, and it cannot be determined by standardized information in PHS' s
databases. Instead, such an inquiry would require painstaking mini-trials that would qualify such
a process as "administratively infeasible." PHS also argues that Plaintiffs approach is overly
broad and would capture every letter PHS had ever sent.
First, as stated above, our Circuit has rejected the opportunity to include concerns of
"overly broad" or "under-inclusive" class descriptions in the ascertainability analysis.
"[A]scertainability only requires the plaintiff to show that class members can be identified."
Carrera v. Bayer Corp., 727 F.3d 300, 308 n.2 (3d Cir. 2013). Second, this is not yet at the class
certification stage. Plaintiffs have had no opportunity to test this viable theory, and PHS has no
concrete examples that the process proposed will be nearly as disastrous as it claims. In all other
regards, it appears to the Court that the proposed method of ascertaining class members is quite
similar to that in Byrd. At this point, the Court cannot conclude that the ascertainability standard
cannot be met as a matter of law. Plaintiffs have met their burden of advancing a prima facie
showing that discovery is likely to produce substantiation of the class allegations with respect to
This Court briefly but succinctly explained the commonality issue in Trunzo II, 2014 WL
1317577, at *8. Here, the TACAC pleads a sufficient factual and legal claim common to the
entire class: PHS allegedly demanded the payment of foreclosure fees and costs in standardized
communications before such fees or costs had been incurred. See Johnston v. HBO Film Mgmt.,
Inc., 265 F.3d 178, 184 (3d Cir. 2001); Lester v. Percudani, 217 F.R.D. 345, 349-50 (M.D. Pa.
2003). This is enough to survive a motion to strike. See Landsman & Funk, 640 F.3d at 93 n.30
(stating that, ultimately, "this case is not among the rare few where the complaint itself
demonstrates that the requirements for maintaining a class action cannot be met").
PHS first avers that Plaintiffs' class allegations are deficient because Plaintiffs' own
claim is not typical of those of the putative class. This Court thoroughly explained the test for
typicality in Trunzo II. See 2014 WL 1317577, at *8-13. In sum, the Court centers its typicality
inquiry on whether ( 1) Plaintiffs' claims are generally the same as those of the purported class
with regards to the legal theory advanced and factual circumstances underlying that theory; (2)
the Plaintiffs' claims are subject to a defense that is inapplicable to numerous members of the
class and would likely become a major focus of the case; and (3) the interests and incentives of
the representative are sufficiently aligned with those of the class. Id. at *9. The focus of the
Court's analysis is whether "the legal or factual position of the representatives is markedly
different from that of other purported members of the class even though common issues of law or
fact are present." Marcus, 687 F.3d at 598 (quoting 7A Charles Alan Wright et al., Federal
Practice and Procedure § 1764 (3d ed. 2005)). Typicality exists when the injuries of the class
members can be traced to a common wrong. Id. (citing Baby Neal ex rel. Kanter v. Casey, 43
F.3d 48, 58 (3d Cir. 1994).
PHS challenged typicality with respect to the FDCP A claim in Trunzo II, and this Court
rejected PHS's arguments as insufficient to defeat the typicality requirement at the motion to
dismiss phase. PHS now argues that, prior to the TACAC, the FDCP A claim has always been
based on an underlying Pennsylvania Loan Interest and Protection Act (also known as "Act 6")
or UPTCPL violation, and now that those claims are gone, there is no more common thread or
common wrong in the case.
Plaintiffs' FDCPA claims have always rested on the general principle that PHS (1)
"charge[d] and/or collect[ed] legally and contractually unauthorized charges or fees that were
misrepresented to Homeowners in violation of the FDCPA." Pls.' Am. Compl., ECF No. 34,
36(3). In the Court's estimation, the FDCPA claims may and do stand alone. The FDCPA is
distinct from state laws and does not require a state law violation to support a FDCP A claim. Just
because the Act 6 and UPTCPL claims are no longer in the picture does not mean a class cannot
exist based on FDCPA violations alone. See Kaymark, 783 F.3d 168 (concluding that the
representation of not-yet-incurred fees as due and owing when they have yet to be incurred is a
violation of the FDCPA).
PHS also points to this Court's Opinion in Trunzo II in which this Court concluded there
was a lack of typicality in Plaintiffs' class claims against Citi. There, "[t]he essence of Citi's
whole argument is that the named Plaintiffs' allegations give rise to defenses possessed by Citi
that are unique to the named Plaintiffs' specific circumstances - in particular, defenses
concerning the elements of causation and deceptive conduct." 2014 WL 1317577, at *7. PHS
does not allege analogous specific defenses unique to Plaintiffs' specific circumstance here. PHS
did so in Trunzo II, and the Court rejected each of those arguments as insufficient to defeat
typicality at the motion to dismiss phase.
Finally, PHS argues that the purported class description is over-inclusive because it will
capture "thousands of homeowners who never received a request for payment of filing fees for a
complaint that had not yet been filed," 10 presumably because the class description would capture
those who received a demand for just about any foreclosure-related, but not yet incurred, fees or
Def.'s Br. in Supp., ECF No. 31( at 15.
costs. The class could theoretically include those who received demand letters that did not
include prothonotary fees but did include something that could be labeled "additional foreclosure
costs." PHS essentially argues that the variety of demanded fees and costs that may have been
made and the variety of circumstances in which they were made (e.g., was a complaint later filed
or was a complaint never actually filed?) constitute different fish that will be improperly caught
by the same net.
Plaintiffs, on the other hand, claim their class description satisfies the typicality
requirement because the purported class appropriately captures those to whom PHS
misrepresented prothonotary fees, attorney fees, and "additional foreclosure costs" because such
costs had not in fact been incurred. Here, the alleged common thread is the receipt of
standardized communication from PHS that contained a demand for payment of not-yet-incurred
fees and costs in connection with collection of a debt. Whether that occurred during an actual
foreclosure proceeding or not, there is alleged common wrong and a common harm.
Plaintiffs' legal theory as advanced appears to be that PHS sent standardized
communications seeking to collect on fees and costs that had yet to be incurred, which is an
alleged violation of the FDCP A. However, the factual circumstances underlying that legal theory
may be very different among class members. The specific amounts demanded will vary, the
specific type of costs or fees may be different, the relationship between the demand letter and the
procedural posture of the foreclosure action may vary, and the extent to which the fee was not
later incurred may change. 11
But varying factual circumstances among class members will not always preclude
typicality, Newton v. Merrill Lynch, 259 F.3d 154, 184 (3d Cir. 2001), but variances can be
PHS argues there is a material difference between demanding a prothonotary fee that had yet to be incurred at the
time of demand but later was incurred (because a foreclosure complaint was actually filed) and demanding a
prothonotary fee that would never be incurred.
significant enough to make the class vehicle an inappropriate mechanism for relief. See Trunzo
II, 2014 WL 1317577, at *13. In Haynes v. Wells Fargo Bank, NA., class certification of an
FDCP A claim was denied because, in part, "the reasonableness and propriety of individual fees
and costs [allegedly improperly assessed in violation of the statute] is a fact-specific inquiry
which precludes certification." No. 08-cv-183, 2017 WL 5895160, at *5 (E.D. Tex. Oct. 30,
2017), adopted by 2017 WL 5890050 (E.D. Tex. Nov. 29, 2017). In Haynes, the circumstances
of each debtor in the purported class would determine whether individual fees were reasonable,
and this would demand a "fact-specific inquiry rather than a class-oriented decision." ld. 12
In Good v. Nationwide Credit, Inc., a class settlement approval case, typicality was
satisfied because "all members of the proposed class received collection letters containing nearly
identical language." 314 F.R.D. 141, 152 (E.D. Pa. 2016). There, the named plaintiffs' injuries
were identical to all class members' injuries because all injuries derived from the verbatim
allegedly illegal language in defendant's collection letter. Id.
Unlike Good, this is not a case where one sentence or clause in a letter will appear
verbatim in all proposed class members' letter, giving rise to an identical injury. Here, the timing
of the demand must be cross-referenced with other actions taken in the collection action, and
corresponding actions by PHS will differ among the purported class. Was a complaint filed? If
so, when? What were the demanded attorney's fees? What other fees were assessed and were
those later incurred or never incurred? The answer to these questions, and more like this, will
vary among the class members and likely vary as between the named Plaintiffs and other
represented class members.
The Magistrate Judge in Haynes addressed the fact-specific inquiry under the "commonality" element, but under
our Circuit's framework and the circumstances in this case, the varying factual circumstances problem is best
addressed under the typicality heading.
Varying fact patterns do not necessarily defeat typicality. "[C]ases challenging the same
unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy
the typicality requirement irrespective of the varying fact patterns underlying the individual
claims." Baby Neal, 43 F.3d at 58. "Where an action challenges a policy or practice, the named
plaintiffs suffering one specific injury from the practice can represent a class suffering other
injuries, so long as all the injuries are shown to result from the practice." Id.
Rational discovery may tum up individual circumstances that prove the class action
vehicle is inappropriate here, but that is an issue for the class certification phase, as demonstrated
in Haynes. The TACAC sufficiently pleads a specific injury and a class that captures others who
suffered from the same alleged practice. This is consistent with this Court's ruling in Trunzo II,
where the Court denied PHS' s Motion to Strike Class Allegations because the operative pleading
sufficiently pled that PHS "has allegedly committed a 'common wrong' applicable to all class
members," including the FDCPA class claim. Trunzo II, ECF No. 171, at 30. Once again, "[t]his
Court concludes that PHS has not advanced an argument sufficient to demonstrate that class
discovery will necessarily fail to illuminate any further evidence of a relation between the class
claim and those of the named Plaintiffs sufficient to satisfy the typicality requirement of Rule
23(a)." Id. at 30-31. The TACAC adequately pleads typicality to survive a motion to strike the
PHS challenges the adequacy of representation of both the representative Plaintiffs and
their counsel. Rule 23(a) requires the named plaintiff to "fairly and adequately protect the
interests of the class." Fed. R. Civ. P. 23(a)(4). Inquiry into the adequacy of the representative
class members focuses on two inquiries: the qualifications of counsel to represent the class, and
any conflict of interest between named parties and the class they seek to represent. Jn re
Warfarin Sodium Antitrust Litig., 391F.3d516, 532 (3d Cir. 2004). PHS focuses on the latter. In
essence, PHS argues that Plaintiffs and Plaintiffs' counsel sold out their purported class with
respect to claims brought against the deeper-pocket-Defendant Seterus, so Plaintiffs cannot be
trusted to reliably champion the remaining class claim against PHS.
The Court is concerned as to whether the decision to abandon two out of three 13 class
claims in exchange for an individual settlement creates an inherent conflict of interest between
named parties and the class they still seek to represent with respect to the third, still present, class
claim. On the other hand, the Plaintiffs have not settled any claims against PHS, and there is
nothing in the record to suggest the class claim against PHS was brought to leverage a better
individual settlement. The Court must decide what effect settlement with other defendants has on
the adequacy of representation as against a remaining defendant. After all, there are many
reasons to settle a lawsuit, and doing so does not by definition equate to impropriety.
'"The hard question concerning intraclass conflicts asks which conflicts should matter ...
what divisions should render the class representation so defective in structure as to rise to the
level of a constitutional dereliction,' or violation of Rule 23( a)( 4 ). " Dewey v. Volkswagen
Aktiengesellschaft, 681 F .3d 170, 184 (3d Cir. 2012) (citing Samuel Issacharoff & Richard A.
Nagareda, Class Settlements Under Attack, 156 U. Pa. L. Rev. 1649, 1678 (2008)). In Dewey,
our Court of Appeals stated, "A conflict concerning the allocation of remedies amongst class
members with competing interests can be fundamental and can thus render a representative
plaintiff inadequate. A conflict that is unduly speculative, however, is generally not
fundamental." 681 F .3d at 184 (3d Cir. 2012) (citations omitted). Here, Plaintiffs arguably
13 Two class claims pied against Seterus (FDCPA and unjust enrichment) were dismissed following the settlement,
leaving the one class claim against PHS still alive. With respect to Citi, class claims were stricken by the Court
(prior to the mediation) in Trunzo II. See Tel. Status Conference Tr. 7:23-24, ECF No. 256 ("[T]he Court has
already ruled that no class can be certified vis-a-vis Citi."). Thus, the settlement between the Plaintiffs and Citi is
irrelevant to the question of adequacy of representation because it only dealt with individual claims.
created a conflict concerning remedies by turning one out of two FDCP A class claims into a
personal gain, but whether the class is at risk that Plaintiffs will do so again-and to the
detriment of the purported class-is guesswork. However, the Court concludes the decision to
settle class claims with another Defendant is relevant to its analysis of Plaintiffs' adequacy to
represent that class against the remaining Defendant in the same case. 14
Plaintiffs chose to bring all the claims against all of the Defendants in one lawsuit. That
decision shows that the claims are not so independent that Plaintiffs decision-making with
respect to other claims against co-Defendants should be considered irrelevant. While the
distinctiveness of the claims and parties may have helped save Plaintiffs from a mootness
problem, those decisions are not immunized from the Rule 23(a) analysis. 15
Settlement for the benefit of the individual can be indicative of inadequate representation.
See, e.g., Hauff v. Petterson, No. 09-cv-0639, 2009 WL 4782732 (D.N.M. Dec. 11, 2009);
Quadrel v. GNC Franchising, LLC, No. 06-cv-0643, 2008 WL 474260, at *1 (W.D. Pa. 2008)
("Because [Plaintiff] settled his personal and representative claims he is now not an adequate
representative as required by Fed. R. Civ. P. 23(a)."). In Hauff, the Court concluded on plaintiffs
motion for class certification that the plaintiffs counsel was not a constitutionally adequate
representative of the purported class. Hauff, 2009 WL 4782732. The plaintiff made "continued
efforts to settle his individual claim" and "suggest[ed] he has asserted allegations as leverage for
Courts regularly "take into account other litigation between the parties, especially where the plaintiff has initiated
the suits, that render it likely that the representative plaintiff may disregard the interests of other class members."
Recchion on Behalf of Westinghouse E/ec. Corp. v. Kirby, 637 F. Supp. 1309, 1314 (W.D. Pa. 1986); Blum v.
Morgan Guar. Tr. Co., 539 F.2d 1388, 1390 (5th Cir. 1976) ("[T]he court may take into account outside
entanglements that render it likely that the representative (plaintiff) may disregard the interests of the other class
Adequacy of representation goes beyond the inquiry of justiciability. The question here has evolved from a
threshold justiciability issue whether Plaintiffs can bring their claims to a more permeating issue of whether
Plaintiffs should be the ones bringing claims on behalf of others. The chief concern "of the adequacy n:quirement is
the alignment of interests and incentives between the representative plaintiffs and the rest of the class."
Dewey, 681 F.3d at 183.
his individual claims rather than in the interests of the putative class." Id. at *10. To be clear,
Plaintiffs never suggested (and PHS has not overtly alleged as much) that any pied class claims
were asserted for individual settlement leverage, but the facts show the purported class pied
against PHS could be at a higher risk of being treated as such leverage.
Neither party has pointed to any cases with facts similar to this case, but parallels can be
drawn to the conflict that arises when a plaintiff suing a company is also a stock holder and that
same plaintiff brings a derivative action as leverage to obtain a favorable settlement against the
company in the direct action. In those cases, courts weigh the likelihood that the derivative
action will be used as a weapon in the plaintiff shareholder's arsenal or whether the suit seeks to
protect all shareholders. See, e.g., Recchion, 63 7 F. Supp. at 1315. In Recchion, the court noted
that when the representative stake as a shareholder "paled in comparison" with the shareholder's
outside interests such as in the direct suit, there was substantial likelihood of abuse of the process
and the derivative claim should not be allowed to proceed. Id.
Applying this concept to this case, Plaintiffs' stake as named Plaintiffs in a successful
class litigation against PHS would result in a recovery of $2,000 at most. 16 Plaintiffs' stake in a
successful individual action against PHS would also result in $2,000 at most. 17 The difference is
PHS's exposure: a defendant's exposure in an FDCPA class action case is $2,000 plus one
percent of its net worth or $500,000, whichever is less. 18 Plaintiffs, by holding the class claim
card, in theory have significant bargaining power for a settlement substantially in excess of
In a successful class action, 15 U .S.C § l 692k authorizes statutory damages for each named plaintiff of up to
$1,000. 15 U.S.C § 1692k(a)(2)(B).
"[l]n the case of any action by an individual, such additional damages as the court may allow, but not exceeding
$1,000." 15 U.S.C § 1692k(a)(2)(A).
In a successful class action, 15 U.S.C § l 692k authorizes statutory damages for each named plaintiff ofup to
$1,000 and for the rest of the class, "without regard to a minimum individual recovery, not to exceed the lesser of
$500,000 or 1 per centum of the net worth of the debt collector." 15 U.S.C § 1692k(a)(2)(B).
It is true that the value of Plaintiffs' individual claims appears to "pale" in comparison to
the value of the individual claim and the purported class claim. Therefore, the Court can surmise
that the class claim could be "a particularly effective weapon for purposes of obtaining a
favorable settlement." Recchion, 63 7 F. Supp. at 1315. But are the Plaintiffs so likely to use this
weapon at the expense of the class that the Court must strike the class action allegations? 19
The ironic part of PHS' s allegation of inadequate representation is that their concern (that
Plaintiffs will "sell out" the class) only materializes if PHS itself decides to settle with Plaintiffs
prior to class certification. Plaintiffs cannot "sell out" the class if Defendant does not buy it. PHS
opted not to settle at the Court-ordered mediation and continues to vigorously defend its case
before the Court. PHS's concern of another "sell out" depends solely on PHS doing something
they have, in this eight-year long litigation, yet to do. Of course, PHS could change its mind, but
the contentious relationship between the parties (or at least some of their counsel) demonstrates
that this concern may remain hypothetical. "Purely hypothetical, potential or remote conflicts of
interest do not disable plaintiff from being an adequate representative." Recchion, 637 F. Supp.
at 1314; Nat'l Veterans Legal Servs. Program v. United States, 235 F. Supp. 3d 32, 41 (D.D.C.
2017) ("[C]onflicts will not defeat the adequacy requirement if they are speculative or
hypothetical.") (citing Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 430 (4th Cir. 2003));
Brieger v. Tellabs, Inc., 245 F.R.D. 345, 355 (N.D. Ill. 2007) ("Courts do not deny class
certification on speculative or hypothetical conflicts.").
While this hypothetical finds support in the history of the case, the Court's concerns do
not rise to the level necessary to defeat adequate representation at the motion to dismiss phase.
PHS has suggested that because Plaintiffs no longer have a mortgage on their home that they do not suffer the
kind of harm that the class may be suffering. This is a case for statutory damages. The FDCPA does not delineate
the right to recovery based on one's indebtedness (or lack thereof). PHS points to no case law that the financial
health of a party affects his or her ability to be an adequate representative for a class of individuals who may or may
not still have a mortgage.
This, like the typicality requirement, may be an issue that materializes in consideration of class
certification. For example, events between now and a certification motion may create more
parallels to Hauff, where the plaintiff repeatedly attempted to use class claims for leverage in
proposed individual settlement offers. 2009 WL 4782732 (D.N.M. Dec. 11, 2009). Or, discovery
may demonstrate Plaintiffs' and Plaintiffs' counsel's sufficiently (or insufficiently) zealous
advocacy for the class. Or, the parties may nonetheless settle their differences in a permissible
and mutually agreeable fashion. In any event, the Court cannot conclude at this juncture that
Plaintiffs are inadequate representatives as a matter of law.
For the foregoing reasons, Defendant's Motion to Dismiss the Class Allegations of the
TCAC, ECF No. 313, is denied without prejudice.
An appropriate Order will follow.
Mark R. Hornak
United States District Judge
Dated: February 7, 2018
cc: All counsel of record
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