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

In Weiner v. Ocwen Fin. Corp., No. 2:14-cv-02597-TLN-DB, 2023 U.S. Dist. LEXIS 33107, at *7 (E.D. Cal. Feb. 27, 2023), Judge Nunley reconsidered Judge Englund's previous decertification order, finding that Judge Englund erred in his evaluation of whether the class representative must establish class-wide Art. III standing. In the Court's order granting Ocwen's motion for class decertification, the Court stated,… Read More

In Bassett v. Credit Bureau Servs., Inc., Nos. 21-2864, 22-1206, 2023 U.S. App. LEXIS 4428, at *7 (8th Cir. Feb. 24, 2023), the Court of Appeals for the 8th Circuit reversed the district court's judgment for the class, finding that the Plaintiff had no Art. III Standing. The procedural background was as follows: The collectors sent Bassett (and her deceased… Read More

In Church v. Collection Bureau of the Hudson Valley, Inc., Civil Action No. 20-3172 (SDW)(LDW), 2022 U.S. Dist. LEXIS 201523, at *9 (D.N.J. Nov. 4, 2022), Judge Wigenton allowed an FDPCA class representative to limit the class to a single zip code. In this case, Plaintiffs seek to certify the following classes: (1) all New Jersey residents who received a… Read More

In Lawrence v. First Fin. Inv. Fund V, No. 2:19-cv-00174-RJS-CMR, 2020 U.S. Dist. LEXIS 149122 (D. Utah Aug. 17, 2020), Judge Shelby certified an FDCPA class after the class representative abandoned any claim for emotional distress because such damage claim could not be pursued on a representative basis. Next, First Financial argues Lawrence's claims are atypical of the proposed classes… Read More

In Molinari v. Fin. Asset Mgmt. Sys., No. 18 C 1526, 2020 U.S. Dist. LEXIS 134045 (N.D. Ill. July 29, 2020), Judge Ellis denied class certification in a TCPA/FDCPA class action Under Rule 23(a)(2), a party seeking class certification must show commonality by identifying "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). "The key… Read More

In Matthias v. Tate & Kirlin Assocs., No. 19-cv-182-slc, 2020 U.S. Dist. LEXIS 63894, at *8-9 (W.D. Wis. Apr. 13, 2020), Judge Crocker was unpersuaded that individual questions of commercial versus consumer debt could defeat class certification in an FDCPA dunning letter class action. Similarly, there is no authority supporting defendants' contention that Matthias must show that each putative class… Read More

In Flecha v. Medicredit, Inc., No. 18-50551, 2020 U.S. App. LEXIS 481 (5th Cir. Jan. 8, 2020, the Court of Appeals for the Fifth Circuit reversed class certification in an FDCPA case. This class fails for similar reasons. Every member of the putative class received the same allegedly threatening letter from Medicredit. But the FDCPA penalizes empty threats, not all… Read More

In Nagan v. Optio Sols. Llc, No. 19-C-170, 2019 U.S. Dist. LEXIS 173286, at *7 (E.D. Wis. Oct. 4, 2019), the District Court held that an FDCPA class could be certified despite the fact that the classmember would receive almost nothing. Optio asserts that a class action is not the superior method of litigating the issues here because any amount… Read More

In Bitzko v. Weltman, No. 1:17-CV-00458 (BKS/DJS), 2019 U.S. Dist. LEXIS 161495 (N.D.N.Y. Sep. 23, 2019), the District Court held that having to inquire about the consumer nature of a debt from putative class members in an FDCPA class action did not defeat class certification. Defendant asserts that using its records to identify potential class members, and then asking those… Read More

In Timlick v. Nat'l Enter. Sys., No. A154235, 2019 Cal. App. Unpub. LEXIS 3198 (May 7, 2019), the California Court of Appeal found that a type-size error was able to be cured under the Rosenthal Act’s safe harbor. While, strictly speaking, the legislative history of the Consumer Collection Notice law has no bearing in discerning the legislative intent of section… Read More

In Boucher v. Fin. Sys. of Green Bay, No. 17-C-132, 2019 U.S. Dist. LEXIS 61026 (E.D. Wis. Apr. 9, 2019), Judge Griesbach denied class certification in FDCPA dunning letter case because of de minimum recovery that the putative class members would receive.  The settlement would have resulted in about $1 per class member. Still, the Seventh Circuit has never said… Read More

In Gomes v. Portfolio Recovery Assocs., LLC, No. 18-21872-CIV, 2019 U.S. Dist. LEXIS 32116 (S.D. Fla. Feb. 28, 2019), Judge Altonaga denied class certification in an FDCPA class action. Defendant asserts the damages component of the case will require examination of individualized issues. According to Defendant, Plaintiff and each class member will necessarily have the burden of proving Defendant's collection… Read More

In Solberg v. Victim Services, Inc, dba Corrective Solutions, 2018 WL 6567072 (N.D.Cal., 2018), Judge Chhabria certified an FDCPA class, but declined to award injunctive relief under the UCL because the putative class was unlikely to be the subject of further collection activity. The plaintiffs also seek restitutionary and injunctive relief under the UCL. As an initial matter, the plaintiffs… Read More

In Ocampo v. GC Services Ltd. Partnership, Case No. 16-CV-9388, 2018 WL 6198464 (N.D.Ill. Nov. 28, 2018), Judge Dow found a class representative to be improper.  But, in the class certification analysis, Judge Dow found that the type of debt involved did not involve individual inquiries sufficient to defeat class certification. With respect to the first argument, even though some… Read More

In Gibbons v. Weltman, Weinberg, & Reis, Co., LPA, 2018 WL 5720749 (E.D. Pa. 2018), Judge Slomsky certified an FDCPA class over objections that the class size compared to the FDCPA’s class action cap could reduce the class members’ individual recovery to such an extent that class certification was not the superior method of adjudicating the mass action. Based on… Read More

In Taylor v. Alltran Financial, LP, 2018 WL 4403335, at *3–4 (S.D.Ind., 2018), the District Court certified an FDCPA class over the Defendant's objection that some of the debts might be commercial debts. Here, Defendants’ argument that the proposed class could contain individuals who received commercial or business loans, and who would therefore be ineligible under the FDCPA, makes no… Read More

In Tourgeman v. Nelson & Kennard, here, the Court of Appeals for the Ninth Circuit held that the Plaintiff bore the burden of proving the defendant's net worth under the FDCPA's penalty provision. Here, Tourgeman had every opportunity to acquire evidence of Nelson & Kennard's net worth. A protective order was entered to give Tourgeman access to Defendant's financial information,… Read More

In Macy v. GC Services, Ltd., 2018 WL 3614580, at *9–10 (C.A.6 (Ky.), 2018), the Court of Appeals for the Sixth Circuit found that FDPCA Plaintiffs, and their class, had Spokeo standing. Thus, Lyshe is distinguishable. Here, the harm Plaintiffs allege—being misled by a debt collector about the rights the FDCPA gives to debtors—is precisely the type of harm—abusive debt-collection… Read More

In Johnson v. Enhanced Recovery Company, LLC., 2018 WL 2057798, at *2–3 (N.D.Ind., 2018), Judge Simon certified an FDCPA class action over the defendant's objection. ERC also argues that the FDCPA claim here depends on a material misrepresentation, and that “[w]hether any statements resulted in a material misstatement that actually affected the recipient’s decision-making is an issue that cannot be… Read More

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.… Read More