CEB Prac. Guide § 2A.53 -- Liability -- Class Actions

In Dykes v. Portfolio Recovery Associates, LLC., 2016 WL 346959, at *3-4 (E.D.Va., 2016), Judge Cacheris denied class certification in an FDCPA class action due to lack of ascertain ability. The class proposed in Plaintiff's Memorandum in Support of her Motion for Class Certification includes recipients of PRA's Spanish-language dunning letters who actually speak Spanish and indicated to PRA that… Read More

In Cox v. Sherman Capital LLC, 2016 WL 274877, at *4-6 (S.D.Ind., 2016), Judge Pratt properly found that a proposed class action was an impermissible fail-safe class.  The allegations were as follows: As a result of securitization, the Plaintiffs contend that LVNV did not own their debts based on three different, but related, arguments. First, as explained above, Plaintiffs argue… Read More

In Tripp v. Berman & Rabin, P.A., 2015 WL 5704075, at *7-10 (D.Kan. 2015), Judge Crabtree rejected the argument that the FDCPA's $500,000 cap prevents certification of an FDCPA class action. Defendants contend that plaintiff cannot carry her burden on this requirement. Defendants argue that the statutory damage cap that applies to a FDCPA class action combined with the large… Read More

In Mitchell v. LVNV Funding, LLC, 2015 WL 7016343, at *10-11 (N.D.Ind.,2015), Judge Springmann rejected an FDCPA defendant's argument that the FDCPA's $500,000 penalty cap and resulting de-minimus class recovery rendered the class action device an inferior means to adjudicate a mass-action. Despite these limits, the Defendants assert that a class action is not superior because recovery is de minimis where… Read More

In Fosnight v. LVNV Funding, LLC, 2015 WL 6394334, at *5 (S.D.Ind.,2015), Judge McKinney found that the FDCPA's $500,000 statutory cap was no impediment to class certification. Defendants' main argument as to the superiority of a class action is based on the propriety of the remedy portion of the FDCPA, which provides for a maximum recovery of $1,000.00 for the class… Read More

In Rhodes v. Olson Associates, P.C., --- F.Supp.3d ----, 2015 WL 1136176 (D.Colo. 2015), Judge Arguello recognized that the FDCPA’s $500,000 liability cap in class actions would reduce the per-classmember’s potential recovery to less than $1,000 in an individual case. But, Judge Arguello found that this fact did not make the class action devise not the superior way of adjudicating… Read More

In Roundtree v. Bush Ross, P.A., --- F.R.D. ----, 2014 WL 6969570 (M.D.Fla. 2015), Judge Whittemore found that an FDCPA class action could still be certified despite questions of whether the obligation was consumer or commercial merely by excluding commercial debts from the class definition.  The case arose from a purported “overshadowing” collection letter sent to collect delinquent condominium association… Read More

In Blandina v. Midland Funding, here, Judge Quinones Alejandro held that the $500,000 statutory class action penalty under the FDCPA applies "per lawsuit" and not "per defendant". While the Third Circuit has not addressed directly whether the FDCPA statutory limit for class actions provides a maximum amount of recovery per action as opposed to per defendant, the Third Circuit, along… Read More

In Zarichny v. Complete Payment Recovery Services, Inc., --- F.Supp.3d ----, 2015 WL 249853 (E.D.Pa. 2014), Judge Dalzell struck an FDCPA/TCPA class at the pleadings stage because it was an impermissible "fail-safe" class. Because plaintiff's class definitions create impermissible fail-safe classes, we need not consider defendants' second ground for striking her class allegations—that plaintiff is not an adequate class representative because… Read More

In Powers v. Credit Management Services, Inc., --- F.3d ----, 2015 WL 160285 (8th Cir. 2015), the Court of Appeals for the 8th Circuit reversed certification of an FDCPA class action because it was not the superior means of adjudicating the claims.   The Court of Appeals, Loken, Circuit Judge, held that: (1) consumers' claim that debt collector's standard collection complaints improperly… Read More

In Kalkstein v. Collecto, Inc., --- F.R.D. ----, 2015 WL 59246 (E.D.N.Y. 2015), Judge Spatt found that the fact that a putative class member would receive less in a class settlement than if the class member sued individually did not defeat class certification. The superiority element of Rule 23(b)(3) requires the court to examine whether a class action is superior… Read More

In Gold v. Midland Credit Management, Inc., --- F.Supp.3d ----, 2014 WL 5026270 (N.D.Cal. 2014), Judge Freeman rejected the argument that factual questions regarding whether financial transactions were primarily for consumer or business purposes could defeat class certification in an FDCPA case. Plaintiff owes a financial obligation, “namely a consumer credit account issued by HSBC Bank Nevada, N.A,” that was… Read More

In Jacobson v. Persolve, LLC, 2014 WL 4090809 (N.D.Cal. 2014), Judge Koh found an FDCPA class-action defendant’s Rule 68 offer to the class representative did not moot either the Action or the represenative’s ability to bring class claims. The Court agrees with Persolve that Plaintiff's Motion to Strike Persolve's Offer of Judgment is procedurally improper. Persolve's Offer of Judgment was… Read More

In O'Connor v. Diversified Consultants, Inc., 2013 WL 2319342 (E.D.Mo. 2013), Judge Sippel denied class certification in an FDCPA/TCPA case.  Judge Sippel declined to certify an FDCPA ‘overshadowing’ class, finding that individual inquires predominated. However, a debt collector cannot use collection tactics that lead a debtor to believe he does not have any right to challenge the debt. Such a… Read More

In Felix v. Northstar Location Services, LLC, --- F.R.D. ----, 2013 WL 2319326 (W.D.N.Y. 2013), Judge McCarthy rejected a settlement class under the FDCPA and Rosenthal Act arising from allegedly inadequate and deceptive voicemail messages left on debtors’ answering machines.  The facts alleged were as follows: By Text Order dated June 15, 2011[24], I granted the parties' motions to consolidate… Read More

In LaRocque ex rel. Spang v. TRS Recovery Services, Inc. 2013 WL 30055 (D.Me. 2013), Judge Hornby declined to expand a state-wide class action into a federal one to protect the FDCPA defendant against multiple $500,000 penalties under the Act. The defendants' central premise is that the Maine-limited scope of Class One “circumvent[s] the statutory cap on damages set forth in the… Read More

  In Tourgeman v. Collins Financial Services, Inc., 2012 WL 1327824 (S.D.Cal. 2012), Judge Bencivengo held that a Plaintiff lacked standing in a class action to pursue a UCL claim based on a violation of the FDCPA/Rosenthal Act. Upon consideration of the briefing before the Court, and argument of counsel, the Court finds that Plaintiff has not met his burden… Read More

In Rose v. Asset Acceptance, 2012 WL 603263 (2012), the California First District Court of Appeal affirmed in an unpublished decision a denial of class certification of a claim filed under the Rosenthal Act.  The facts arose from a debt collector’s suit against a debtor arising from her telephone bill purportedly beyond the statute of limitations.  The trial court rejected… Read More

In Makreas v. Moore Law Group, A.P.C., 2012 WL 359710 (N.D.Cal. 2012), Judge Chesney found that the Plaintiff stated certain claims against a debt collection attorney, but not against the creditor whose debt the attorney was collecting.  In the context of evaluating a previous Rule 68 offer, the District Court confirmed that the Rosenthal Act and FDCPA penalties are “per… Read More

In Aho v. Americredit Financial Services, Inc., --- F.R.D. ----, 2011 WL 5401799 (S.D.Cal. 2011), Judge Sabraw certified an NOI class under the UCL and ASFA for allegedly faulty post-repossession letters ("NOIs") pursuant to FRCP 23(b)(2), but refused to do so under the Rosenthal Act.  Judge Sabraw found the ‘damages’ sought under the Rosenthal Act were not incidental to the… Read More