Taylor v. Ocwen Loan Servicing, LLC

Filing 29

MEMORANDUM AND ORDER entered GRANTING 23 MOTION to Consolidate Lead Case No. 4:12-cv-02929 and Member Case No. 4:13-cv-01719.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SHERYL D. TAYLOR,
Plaintiff,
VS.
OCWEN LOAN SERVICING, LLC,
Defendant.

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CIVIL ACTION NO. H-12-2929
H-13-1719

MEMORANDUM AND ORDER
Sheryl D. Taylor sued Ocwen Loan Servicing, LLC in separate suits over Ocwen’s attempts
to collect mortgage payments. Ocwen moves to consolidate the present suit with Taylor v. Ocwen
Loan Servicing, 4:13-1719 (S.D. Tex. filed June 13, 2013). (Docket Entry No. 23). Taylor opposes
consolidation. Based on the pleadings; the motion and response; and the relevant law, Ocwen’s
motion to transfer the case for coordinated handling by the judge having the earlier-filed related case
is granted.
Under Federal Rule of Civil Procedure 42(a), “actions involving a common question of law
or fact” may be consolidated. A court may: (1) “join for hearing or trial any or all matters at issue
in the actions”; (2) “consolidate the actions”; or (3) “issue any other orders to avoid unnecessary cost
or delay.” FED. R. CIV. P. 42(a)(1)–(3). “[C]onsolidation is permitted as a matter of convenience
and economy in administration, but does not merge suits into a single cause or change the rights of
the parties.” Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496–97 (1933); see also McKenzie v.
United States, 678 F.2d 571, 574 (5th Cir. 1982) (“[C]onsolidation does not cause one civil action
to emerge from two.”). Instead, courts have emphasized that after consolidation, “the two suits

retain their separate identities” even to the point that each requires “the entry of a separate
judgment.” Miller v. United States Postal Serv., 729 F.2d 1033, 1036 (5th Cir. 1984). Such
separation prevents consolidation from “depriv[ing] a party of any substantial rights that he may
have had if the actions had proceeded separately.” Id.
District courts have broad discretion in determining whether two or more actions have
common questions of law and fact and whether to consolidate. Mills v. Beech Aircraft Corp., 886
F.2d 758, 761–62 (5th Cir. 1989). In weighing consolidation, courts consider whether: the actions
are pending before the same court; the actions involve a common party; any risk of prejudice or
confusion will result from consolidation; any risk of inconsistent adjudications of common factual
or legal questions will result if the matters are tried separately; consolidation will reduce the time
and cost of trying the cases separately; and the cases are at the same stage of preparation for trial.
Arnold & Co., LLC v. David K. Young Consulting, LLC, 2013 WL 1411773, at *1–2 (W.D. Tex.
Apr. 8, 2013).
The factors strongly favor transfer and consolidation under the rule. Both suits are pending
in the Southern District of Texas and involve identical parties. The suits involve common questions
of law and fact. In each suit, Taylor has accused Ocwen of taking illegal actions in an attempt to
collect on the same mortgage loan account. Taylor has asserted similar claims in each suit under
the Federal Debt Collection Practices Act; the Texas Debt Collection Act; and the Texas Deceptive
Trade Practices Act. Consolidation will not cause delay because both cases are still at an early stage
and likely will reduce the time and cost of resolving pretrial motions and trying the cases.
Taylor opposes consolidation on the ground that the suits involve separate collection
conduct. Taylor notes that the first suit involves collection activity that occurred between February

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3, 2012 and August 22, 2012, while the second suit involves collection activity that took place on
August 23, 2012. That some facts and legal issues may differ between the suits, which otherwise
involve common facts and claims, is not a sufficient reason to deny the consolidation request.
Taylor also contends that consolidating the cases would prejudice her because it would
deprive her of the right to obtain separate statutory damages and attorney’s fees for each action. She
argues that “without separate actions for each violation, creditors such as [Ocwen] are allowed to
make collection calls ad infinitum and only have to worry about paying a maximum $1000 in
statutory damages.” (Docket Entry No. 26 at 3). There is no basis for Taylor’s concern. Courts in
the Fifth Circuit have “adhered to [the Supreme Court’s] instruction” in Johnson, 289 U.S. at
496–97, that consolidation “does not merge suits into a single cause, or change the rights of the
parties, or make those who are parties in one suit parties in another.” In re Excel Corp., 106 F.3d
1197, 1201 (5th Cir. 1997).
Ocwen’s motion to transfer the case for coordinated handling by the judge having the earlierfiled related case is granted.
SIGNED on July 3, 2013, at Houston, Texas.

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Lee H. Rosenthal
United States District Judge

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