Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
IRWIN v. MASCOTT
March 24, 1999
KATHLEEN R. IRWIN, ET AL., PLAINTIFFS,
OWEN T. MASCOTT, ET AL., DEFENDANTS.
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
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
Plaintiffs seek certification of all issues, including liability,
damages and injunctive relief.
Plaintiffs seek certification of the following 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.
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].
REQUIREMENTS FOR CLASS CERTIFICATION GENERALLY
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.
APPLICABILITY OF FAIR DEBT COLLECTION PRACTICES
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
[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
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
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
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 ...