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Durham v. Continental Central Credit

July 14, 2010

SALLIE A. DURHAM, AN INDIVIDUAL ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
CONTINENTAL CENTRAL CREDIT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER GRANTING MOTION FOR CLASS CERTIFICATION

Plaintiff has filed a second motion for class certification. For the reasons discussed below, Plaintiff's motion is GRANTED.

I. BACKGROUND

This action arises out of attempts by Continental Central Credit, Inc. ("CCC") to collect amounts assessed against Plaintiff by San Clemente Cove Vacation Owners Association ("Association").

In her First Amended Complaint ("FAC"), Plaintiff sues on behalf of herself and a purported class of similarly situated individuals, claiming that CCC violated the Fair Debt Collection Practices Act ("FDCPA"), specifically 15 U.S.C. §§ 1692e(1), 1692e(2)(A), 1692e(2)(B), 1692f(1), and 1692g. Plaintiff also claims that Defendants violated California's Robbins-Rosenthal Fair Debt Collect Practices Act ("Rosenthal Act"), Cal. Civil Code §§ 1788.17, 1788.13(e).

In an order filed on October 20, 2009, the Court granted summary judgment in favor of Defendants on Plaintiff's claims based on CCC's attempt to collect a collection fee equal to 40% of the outstanding principal. The Court held that Plaintiff had failed to establish that such collection fee was prohibited by law. The Court also granted summary judgment in favor of Defendants on Plaintiff's Rosenthal Act claim because the underlying debt was not owed in connection with a "consumer credit transaction," as required by Cal. Civil Code § 1788.2(f).

The Court denied Defendants' motion for summary judgment with respect to Plaintiff's claim that CCC violated the FDCPA by sending Plaintiff a letter in the form of Exhibit B to the FAC ("Exhibit B letter") within 30 days of sending Plaintiff a letter in the form of Exhibit A to the FAC ("Exhibit A letter"). The Court held that the Exhibit B letter, which demanded immediate payment, overshadowed the Exhibit A letter's notice to Plaintiff of her right to dispute the debt within 30 days after receipt of the letter. The Court further held that the CCC was not entitled to summary judgment based on its bona fide error defense under 15 U.S.C. § 1692k(c).

The Court also denied without prejudice Plaintiff's motion for class certification on the ground that Plaintiff had failed to satisfy her burden of establishing that the class is so numerous that joinder of all members is impracticable.

II. DISCUSSION

Plaintiff moves for certification of the "Overshadowing or Contradicting Class," consisting of (i) all natural persons with California addresses to whom (ii) Defendant CCC sent a letter in the form of Exhibit B to the FAC (iii) within 30 days of sending a letter in the form of Exhibit A to the FAC, as shown by the records of CCC (iv) on or after September 7, 2006 (v) in an attempt to collect a debt incurred for personal, family, or household purposes allegedly due on a nonprofit home owners or vacation owners association fees (vi) which was not returned by the U.S. Postal Service. As discussed below, the Court finds that Plaintiff has satisfied her burden of establishing that certification of the proposed class is appropriate.

A. Requirements for Class Certification

The party seeking class certification bears the burden of establishing that each of the four requirements of Fed. R. Civ. P. 23(a) and at least one requirement of Rule 23(b) have been met. Dukes v.Wal-Mart, Inc., 509 F.3d 1168, 1176 (9th Cir. 2007). The requirements of Rule 23(a) 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. Plaintiff seeks certification under Rule 23(b)(3), which requires that "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Plaintiff also seeks certification under Rule 23(b)(2), which applies when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole."

B. Rule 23(a) Requirements

1. Numerosity

The numerosity requirement "requires examination of the specific facts of each case and imposes no absolute limitations." General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330 (1980). Some courts have held that numerosity is presumed where the plaintiff class contains forty or more members. See, e.g., Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).

According to CCC, there are 103 accounts (with California addresses and for debts arising from homeowner or vacation owner association fees) that were sent Exhibit B letters within 30 days of Exhibit A letters having been sent. In the context of this case, the Court finds that 103 members is sufficient to satisfy the numerosity requirement.

CCC argues that Plaintiff can only speculate about how many people actually qualify as members of the defined class because CCC's records designate a letter as being "sent" on the day that the letter is generated. According to CCC, if a letter is printed in the afternoon, it will not be mailed until the next day, and if a letter is printed on a Friday afternoon, it will not be mailed until the following Monday. Even if this is so, it seems to the Court that only a handful of the 103 accounts would fall into the category of cases where the Exhibit B letter may have been mailed more than 30 days after the Exhibit A letter was sent. Although CCC has the information that would allow it to identify these borderline cases, CCC does not do so. CCC cannot hide the ball and then complain that Plaintiff's numbers are speculative. Furthermore, the Court notes that despite the class definition, the 30-day period referenced in 15 U.S.C. ยง 1692g commences upon receipt, not sending, ...


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