In Shular v. LVNV Funding LLC, 2016 WL 685177, at *9-10 (S.D.Tex., 2016), Judge Lake denied class certification for almost all reasons applicable to FRCP Rule 23, but one of which was the inability to determine commonality or who was in the class because of questions whether the debts were “personal” in nature. The class action arose from Plaintiff’s contention that the debt on which the defendant sued was not actually purchased by the defendant.
In this putative class action plaintiff alleges that defendants violated the FDCPA and the TDCA, two statutes that require plaintiff to establish that the debt at issue is consumer debt, meaning an obligation arising out of a transaction in which the money, property, insurance or services are primarily for personal, family, or household purposes. See 15 U.S.C. § 1692a(5) (defining “debt” to mean “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes;” Tex. Fin.Code § 392.001(2) (defining “consumer debt” to mean “an obligation, or an alleged obligation, primarily for personal, family, or household purposes and arising from a transaction or alleged transaction”). Plaintiff’s attachment of records obtained in discovery to the memorandum submitted in support of his motion for class certification suggests that identification of putative class members can be ascertained through review of these records which are said to document LVNV’s purchase of 33,943 Conn accounts on November 8, 2012. Defendants argue that class certification should be denied because plaintiff fails to demonstrate that any of these records contain information from which the court could determine the primary purpose of each class member’s debt. Plaintiff has not replied to defendants’ arguments against class certification by filing a reply either to Defendants’ Response in Opposition to his motion for class certification filed on October 1, 2015, or to Defendants’ Supplement to Their Response in Opposition to his motion for class certification filed on November 16, 2015. The court has reviewed the records of LVNV’s November 8, 2012, purchase attached to Plaintiff’s Memorandum in support of his motion for class certification, and has found no information useful for determining the nature of the debt attributed either to plaintiff or to any of the putative class members. Accordingly, the court concludes that plaintiff has failed to present any evidence showing that an identifiable class can be ascertained by reference to objective criteria, or that an identifiable class even exists. Conrad, 283 F.R.D. at 328. Nor has plaintiff presented any evidence that other individuals sued by Scott executed the same form contract that plaintiff executed, or had a lawsuit filed against them by defendants in an attempt to collect debt that LVNV did not own and was not entitled to collect. The facts of this case and the facts at issue in Castro are therefore distinguishable. In Castro the court concluded that plaintiff had satisfied the commonality requirement because the plaintiff’s evidence showed that the defendants had sent the same letter attempting to collect cellular telephone debt to more than 500 individuals, and that the issue of whether the letter violated the FDCPA was an issue common to all potential class members. Because plaintiff in this case has not presented any evidence that defendants subjected any other individuals to the same debt collection practices to which he was subjected precludes the court from concluding that plaintiff has satisfied Rule 23(a)’s commonality requirement.