Collection company who acquired debt sent “template” collection letters which failed to advise that the applicable statute of limitations period had expired, as well as the fact that if the debtor were to make a partial payment it would renew the statute of limitations on the entirety of the debt owed.
Certifying the proposed class, the Court rejected the defendant’s argument individualized inquiries would have to be made into what state’s statute of limitations governed based on the card agreement between each class member and the issuing bank, when the statute of limitations began to accrue on each class member’s debt, and whether each class member’s debt was actually time-barred at the time the template collection letter was sent to the class member. “Plaintiff has presented Defendants’ own records which indicate Defendants had the following information about Plaintiff’s debt: the date he last made a payment, the delinquent date of the debt, the charge-off date of the debt, and an ‘OOS’ date, meaning the out of statute date of the debt.” The Court noted that the defendant submitted no evidence to contradict this, but relied solely on legal arguments. “The record evidence indicates that the defendants knew, or, at a minimum, believed, that the debts were time-barred when the dunning letters were sent. The Court also notes that Defendants do not explicitly contest that they believed that the debt was, and were treating it as, time-barred. All of this is sufficient for purposes of finding predominance. If, at a later date, evidence to the contrary arises, Defendants may always move for appropriate relief, such as decertification.”
The defendant also unsuccessfully tried to defeat class certification on the basis of Ascertainability: “Defendants argue that the class is not ascertainable because Plaintiff has provided no mechanism for determining which of the potential class members’ debt was consumer in nature, as required by the FDCPA and FCCPA…. Although the burden is on Plaintiff to establish that the class members are ascertainable, it is notable that Defendants have not presented any evidence that the nature of the debts at issue were not consumer debts owed by individuals…. The Plaintiff, on the other hand, has presented some evidence that the letters sent were related to consumer debts owed by individuals…. Plaintiff also argues that common evidence regarding the nature of the debt portfolios LVNV purchases and assigns to MG&A for collection will establish that the Template sent to the class members concerned a ‘debt’ as defined by the statutes. Moreover, Plaintiff maintains that the ascertainability requirement pertains to the class definition and whether a subsequent court would be able to objectively determine whether a particular person is bound by the class judgment. Here, the definition of the class is not overly broad, amorphous, or vague. The class is easily discernable from Defendants’ records, which contain the names and addresses of the debtors who received the Template and which contain the dates the debtors last made a payment, the delinquent date of each debt, the charge-off date of the debt, and the date that Defendants believed that the debt was ‘OOS,’ meaning ‘out of statute.’ All of this information is easily identifiable from known records. Further, Plaintiff has presented some evidence that the debts at issue are consumer debts as defined by the statute.”
Holzman v. Malcolm S. Gerald & Associates, No.16-80643, 2020 WL 408243 (S.D.Fla. Jan. 23, 2020).
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