United States District Court, M.D. Florida, Tampa Division
KELLY BORG, on behalf of herself and all other similarly situated individuals, Plaintiff,
PHELAN, HALLINAN, DIAMOND & JONES, PLLC, Defendant.
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
matter comes before the Court pursuant to Plaintiff Kelly
Borg's Motion for Class Certification (Doc. # 52), filed
on May 1, 2017. Defendant Phelan, Hallinan, Diamond &
Jones, PLLC filed its response on May 15, 2017. (Doc. # 58).
Because the Court determines Borg lacks standing, the Motion
2005, Borg took out a mortgage to purchase a primary
residence. (Doc. # 1 at ¶ 10). U.S. Bank National
Association, which is the client of the law firm Phelan,
later obtained ownership of Borg's mortgage obligation.
(Id. at ¶ 11). Wells Fargo Bank, N.A. services
the loan. (Id.).
February 8, 2016, after Borg allegedly defaulted on the
mortgage, Phelan, on behalf of U.S. Bank, filed a foreclosure
action in the Thirteenth Judicial Circuit in and for
Hillsborough County, Florida, against Borg and “Unknown
Tenants.” (Id. at ¶¶ 12-14; Doc. #
52-1). That case is the second foreclosure action filed
against Borg. (Doc. # 1 at ¶ 12). However, Borg
prevailed in the first foreclosure action. (Id.).
The second foreclosure action is ongoing and no judgment has
been entered. (Borg Dep. Doc. # 54 at 18:10-13).
19, 2016, Borg filed her class action Complaint in this Court
against Phelan, alleging Phelan violated the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et seq.
(FDCPA), during its representation of U.S. Bank in the
ongoing foreclosure action. (Doc. # 1 at ¶ 14). Neither
U.S. Bank nor Wells Fargo are parties in this case. Rather,
Borg alleges only that Phelan violated the FDCPA during the
foreclosure action in four ways: (1) “attempting to
collect monthly installment payments due beyond Florida's
five year statute of limitations”; (2)
“assess[ing] charges against borrowers for serving
process on ‘unknown tenants'”; (3)
“falsely claim[ing] that [Phelan's] client, U.S.
Bank, is the ‘holder' of the note at issue and,
thus, entitled to sue [Borg] . . .”; and (4)
“omitting the fact that [Borg's] home was
previously subject to a prior foreclosure lawsuit” and
“fail[ing] to [file a second ‘Notice of Intent to
Foreclosure' letter] prior to instituting the second
state court foreclosure.” (Id. at ¶¶
15-18). The Complaint alleges Phelan commits similar
violations in the many other foreclosure actions it
initiates. (Id. at 4-6). Then, on August 16, 2016,
Phelan filed a motion to dismiss the Complaint, which the
Court denied. (Doc. ## 6, 27). Thereafter, Borg voluntarily
dismissed two of the four class allegations in the Complaint.
(Doc. # 43).
1, 2017, Borg filed her Motion for Class Certification. (Doc.
# 52). Although there are two remaining class allegations in
the Complaint, Borg is only pursuing class certification as
to the fees charged by Phelan for service on unknown tenants.
(Id. at 1). Borg defines the class as: “All
persons in Florida during the 12 months preceding the filing
of this lawsuit in which [Phelan] filed a foreclosure action
seeking to collect on charges against borrowers for serving
process against ‘unknown tenants.'”
(Id.). Borg argues it violates Florida law for
Phelan to charge her and the other class members for such
unknown tenant fees. (Doc. # 52 at 2-3). According to Borg,
“service of process on an unknown tenant is as a matter
of law a nullity, making these charges improper and,
therefore, a violation of the FDCPA.” (Id. at
filed its response on May 15, 2017, arguing that Borg lacks
standing to bring her claim and thus cannot represent the
class. (Doc. # 58). Alternatively, Phelan argues the proposed
class lacks commonality and typicality, and Borg would not be
an adequate representative of the class.
certify a class action, the moving party must satisfy a
number of prerequisites. First, the named plaintiff must
demonstrate standing. Vega v. T-Mobile USA, Inc., 564 F.3d
1256, 1265 (11th Cir. 2009). Second, the putative class must
meet all four requirements enumerated in Federal Rule of
Civil Procedure 23(a). Id. Those four requirements
are “numerosity, commonality, typicality, and adequacy
of representation.” Id. (quoting Valley Drug
Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1188 (11th Cir.
2003)). Third, the putative class must fit into at least one
of the three class types defined by Rule 23(b). Id.
Relevant to this case, Rule 23(b)(3) permits certification of
a class where (1) common questions of law or fact predominate
over questions affecting class members individually, and (2)
a class action is the superior method for resolving these
common questions. Id. A party moving for
certification of a Rule 23(b)(3) class in this Court also
faces the added hurdle of proposing a cost-effective means of
providing notice to putative class members. M.D. Fla. R.
4.04(b). The party moving to certify any class or subclass
ultimately bears the burden of proving that all prerequisites
are met. See Brown v. Electrolux Home Prods., Inc., 817 F.3d
1225, 1233- 34 (11th Cir. 2015).
plaintiff's standing to bring and maintain her lawsuit is
a fundamental component of a federal court's subject
matter jurisdiction.” Baez v. LTD Fin. Servs., L.P.,
No. 6:15-cv-1043-Orl-40TBS, 2016 WL 3189133, at *2 (M.D. Fla.
June 8, 2016)(citing Clapper v. Amnesty Int'l USA, 133
S.Ct. 1138, 1146 (2013)). The doctrine of standing
“limits the category of litigants empowered to maintain
a lawsuit in federal court to seek redress for a legal
wrong.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547
(2016), as revised (May 24, 2016). To establish standing,
“[t]he plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Id.
“‘The party invoking federal jurisdiction bears
the burden of establishing' standing.” Clapper, 133
S.Ct. at 1148 (quoting Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992)).
injury in fact requirement is the most important element.
Spokeo, 136 S.Ct. at 1547. An injury in fact is
“‘an invasion of a legally protected
interest' that is ‘concrete and particularized'
and ‘actual or imminent, not conjectural or
hypothetical.'” Id. at 1548 (quoting
Lujan, 504 U.S. at 560). The injury must be
“particularized, ” meaning it “must affect
the plaintiff in a personal and individual way.”
Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560
n.1). Additionally, the injury must be “concrete,
” meaning “it must actually exist.” Spokeo,
136 S.Ct. at 1548. The Supreme Court in Spokeo emphasized
that a plaintiff cannot “allege a bare procedural
violation, divorced from any concrete harm, and satisfy the
injury-in-fact requirement of Article III.”
Id. at 1549.
insists the $45 service fee that will be added to any
judgment entered against her in the foreclosure case is an
injury in fact that establishes standing for her and the