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March 24, 1999


The opinion of the court was delivered by: Larson, United States Magistrate Judge.



Plaintiffs filed their Motion for Class Certification, Defendants filed their Opposition, Plaintiffs filed a Reply, and the matter was submitted without oral argument on November 4, 1998. Supplemental pleadings were also submitted.


Plaintiffs Kathleen R. Irwin, Nancy Heth, and Lorraine L. Castaneda have moved for class certification in this action against defendants Owen T. Mascott, Commonwealth Equity Adjustments, Inc. ("CEA"), and Eric W. Browning, for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. [FDCPA], and the California Unfair Business Practices Act, Cal. Business & Professions Code §§ 7200, et seq. [CUBPA.].

Plaintiffs seek certification of all issues, including liability, damages and injunctive relief.

A. The Class Definition

Plaintiffs seek certification of the following class:

Umbrella Class

  1. (i) all persons with addresses in California; (ii)
     to whom any defendant has sent or will send or has
     caused or will cause to be sent a letter containing
     demands or representation which are identical or
     similar to the demands or representations contained
     in any of the letters attached as Exhibits 1-10 to
     the Complaint; (iii) in connection with attempts to
     collect debts arising from dishonored checks (iv)
     which checks were not returned as undeliverable by
     the Post Office.

B. Sub-Classes

Sub-class A: Those members of the umbrella class whose checks were written for personal, family or household purposes at any time on or after January 1, 1997 [the FDCPA class]; Sub-class B: Those members of the umbrella class whose checks were written for any purpose at any time on or after January 1, 1994 [the CUBPA class].


Pursuant to Fed.R.Civ.Proc., Rule 23, plaintiff's burden of establishing a factual basis for class certification is not a heavy one. It is generally accepted that Rule 23 should be liberally construed.*fn1

Except where underlying class facts and circumstance& ate sheer speculation, the initial burden on the party invoking the class action to show class facts is light. A well-pleaded complaint usually constitutes a prima facie showing of these facts sufficient to shift immediately the burden of disproving them to the party opposing the class. Ibid.

The prerequisites to a class action are that (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.


Congressional intent allowing for FDPCA class actions is expressed in 15 U.S.C. § 1692k. Definitions are provided in prior sections, e.g.,

15 U.S.C. § 1692a(3) provides:

    The term "consumer" means any natural person
  obligated or allegedly obligated to pay any debt.

15 U.S.C. § 1692a(5) provides:

   The term "debt" means 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,
  whether or not such obligation has been reduced to

In the complaint, Plaintiffs have alleged a class of FDCPA consumers. Complaint, Section VII. For purposes of class certification, the plaintiffs' allegations must be accepted as true, except where contradicted by the evidence.*fn2 Each of the three named plaintiffs incurred consumer debts. The defendants collect on checks written to major retail outlets, such as Wal-Mart, K-Mart and J.C. Penney, where the typical customer makes purchases for personal, family or household purposes. The defendants have not proffered any evidence that non-consumers constitute any part of the class.

A dishonored check written on a personal checking account is prima facie evidence that the check was written for personal purposes*fn3 In another case involving a volume check collector, Ditty v. CheckRite, Ltd., Civ. No. 2:95-CV-430C (D. Utah, 8/13/98 Order)*fn4 the court held that:

  [T]he use of a personal check, as identified on the
  defendant's computer system, creates a rebuttable
  presumption that the debt was consumer in nature and
  is sufficient to make out plaintiffs' prima face
  case: Id., citing Berrios v. Sprint Corp., 1998 WL
  199842 at 10 (E.D.N.Y. 1998). Ditty v. Checkrite,
  Ltd., 1998 WL 663357, *3.

See also, Wells v. McDonough, 1998 WL 160876, *5 (N.D.Ill. 1998),*fn5 which also involved check collection, in which class certification was granted because the personal nature of the transaction could be determined by looking at either the check or at defendant's records. Similarly in TILA (Truth in Lending Act, 15 U.S.C. § 1601 et seq.) cases, arguments such as the defendants' here have been rejected.*fn6 The fact that defendants do not maintain information that allows a precise determination of the nature of each purchase should not be a bar to proceeding under the FDCPA. See, e.g., Gladstone v. The Master Collectors, Inc. (N.D.Ga. Civ. No. 1:94-cv-0143-FMH), 2/1/95 Order Certifying Class, pp. 15-17.*fn7

It would be possible to identify checks written for commercial purchases and distinguish them from those written for consumer purchases. In the context of a proposed class under 15 U.S.C. § 1601 et seq. ("TILA"), the Seventh Circuit stated: "Such commercial purchases would frequently be readily identified by the listing of the name of the business as the purchaser in the contract."*fn8 It is likely that a commercial purchase by check would be on the business's checking account. Thus, all that may be required to identify consumers as members of the FDCPA class is to separate personal checks from business checks, or to look at the predominant customer base of the merchant.


The parties agree that the class consists of between 191,000 and 300,000 California residents, so numerosity is not at issue.


There must be "questions of law or fact common to the class." Fed.R.Civ.P. 23(a)(2). "The fact that there is some factual variation among the class grievances will not defeat a class action. . . . A common nucleus of operative fact is usually enough to satisfy the commonality requirement of Rule 23(a)(2)."*fn9

Preemption Claims

Some of the putative class members have state law claims which fall outside the one year statute of limitations for FDCPA claims. This would affect the temporal scope of the class, not whether a class should be certified.

Defendants argue that the FDCPA preempts state action.

There are three circumstances in which state law is preempted under the Supremacy Clause, U.S. Const. Art. VI, cl. 2, by federal law: (1) express preemption, where Congress explicitly defines the extent to which its enactments preempt state law; (2) field preemption, where state law attempts to regulate conduct in a field that Congress intended the federal law exclusively to occupy; and (3) conflict preemption, where it is impossible to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress.*fn10 The overriding consideration is whether Congress intended to preempt state law.*fn11

Congressional intent to preempt state law must be clear and manifest. *fn12 The mere existence of a detailed regulatory scheme does not by itself imply preemption of state remedies.*fn13 Moreover, "preemption of state law by federal statute or regulation is not favored in the absence of persuasive reasons either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained."*fn14

Express or Implied Preemption

In the present case, defendants rely upon the doctrine of implied preemption. Citing cases that hold that the FDCPA does not provide for a private right of injunctive relief, defendants argue that the FDCPA preempts injunctive relief under state law. Defendants briefly refer to 15 U.S.C. § 1692n, but omit any reference to its last sentence. That provision of the FDCPA provides, in its entirety:

  This title does not annul, alter, or affect, or exempt
  any person subject to the provisions of this title
  from complying with the laws of any State with respect
  to debt collection practices, except to the extent
  that those laws are inconsistent with any provision of
  this title, and then only to the extent of the
  inconsistency. For purposes of this section, a State
  law is not inconsistent with this title ...

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