Readers know that we’ve complained about this before — that Courts apply different standards in individual and class actions when it comes to determining whether a debt was incurred primarily for consumer or business purposes.  (Hyman & Walser-Jolly, The Effect of the FDCPA’s “Consumer Limitation on Class Certification: Do Courts Apply Different Standards in Individual and Class Actions? 70 Conf. on Cons. Fin. L. Q. pp. 172-179 (Fall 2017).  Here we go again — Judge Houston found that a consumer could simply check a box saying “yes” or “no” during class administration, and that was enough.  The issue came up in a ‘bad-dunning-letter’ class action filed under the FDCPA and Rosenthal Act.  In Magallon v. Vital Recovery Services, LLC., 2018 WL 1336291, at *5–6 (S.D.Cal., 2018), Judge Houston found that the factual inquiry did not destroy predominance for purposes of class certification.
Plaintiff contends the primary and predominating question here is whether the undisputed content of the collection letter sent by Defendant, objectively, violates the FDCPA and the Rosenthal FDCPA. He further contends, if he prevails, the remaining individual issues will be ministerial.   Defendant argues Plaintiff cannot establish predominance because there is no evidence that the debt was incurred for a personal, family or household purpose. Defendant maintains each plaintiff must satisfy the threshold issue that the money being collected is a “debt” as defined by the FDCPA to prevail, by showing the debt was incurred for a personal, family or household purpose. Defendant argues Plaintiff presents no evidence that the debt of other class members was incurred for a personal, family or household purpose. As such, he argues, Plaintiff fails to meet his burden and class certification is improper.  Plaintiff contends he provided evidence that the debt was for personal, family or household purposes and argues Defendant fails to provide any evidence to the contrary. He further argues it is Defendant’s burden to provide evidence showing certain class members are not subject to the FDCPA because their debts are non-consumer debts. Plaintiff maintains he is bringing the case on behalf of putative class members whose debts are subject to the FDCPA and Defendant identified the class members. As such, it is up to Defendant to identify which class members would not be subject to this case.    At issue in this case is whether the collection letter sent to the class members violated the FDCPA and the Rosenthal FDCPA. In light of Defendant’s records identifying those who they sent the letters in question, and the class definition describing members as those whom received the letter “in connection with the collection of a consumer debt”, the Court finds identifying class members by determining whether the debt was a consumer debt is ministerial in nature easily determined by a single yes or no question. This determination does not predominate over the primary question of whether the letter violated the FDCPA and the Rosenthal FDCPA. As such, the Court finds common issues predominate over individual issues.