United States District Court, M.D. Florida, Jacksonville Division
RANDOLPH SELLERS, individually and on behalf of a class of persons similarly situated and TABETHA SELLERS, individually and on behalf of a class of persons similarly situated, Plaintiffs,
RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Defendant.
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.
consumer credit putative class action is before the Court on:
(1) Defendant Rushmore Loan Management Services, LLC's
Motion for Reconsideration of Ruling on Summary Judgment
(Doc. 56), to which Plaintiffs Randolph and Tabetha Sellers
have responded (Doc. 57); and (2) Plaintiffs' Renewed
Motion for Class Certification (Doc. 58), to which Rushmore
has responded. (Doc. 61).
filed this lawsuit on September 11, 2015 (Doc. 1), raising
claims under the Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq. (“FDCPA”),
the Florida Consumer Collection Practices Act, Fla. Stat.
§§ 559.55-559.785 (“FCCPA”), and the
Declaratory Judgment Act, 28 U.S.C. § 2201, based on
their receipt of numerous communications from Rushmore. On
March 30, 2017, the Court held a hearing on Rushmore's
motion for summary judgment. (Docs. 33, 59). The Court
granted Rushmore's motion as to Count III, which involved
Plaintiffs' receipt of one Request for Taxpayer
Identification Number, but otherwise denied the motion. (Doc.
55). Therefore, Plaintiffs' claims that Rushmore violated
the FDCPA and the FCCPA by sending them several mortgage
statements in an attempt to collect a debt previously
discharged in bankruptcy remain.
16, 2017, Rushmore filed a motion for reconsideration, asking
that the Court review its denial of summary judgment as to
Counts I, II, and IV in light of recent Eleventh Circuit
authority. (Doc. 56). Plaintiffs filed a response in
opposition. (Doc. 57).
1, 2017, Plaintiffs renewed their motion for class
certification, requesting that the Court certify the
All Florida consumers who (1) have or had a residential
mortgage loan serviced by Rushmore Loan Management Services,
LLC, which Rushmore obtained when the loan was in default;
(2) received a Chapter 7 discharge of their personal
liability on the mortgage debt; and (3) were sent a mortgage
statement dated September 11, 2013 or later, in substantially
the same form as Mortgage Statement I and/or Mortgage
Statement II, and was mailed to the debtor's home
connection with the discharged mortgage debt.
(Doc. 58 at 6). Rushmore opposes Plaintiffs' motion for
class certification on all possible grounds, including that
the proposed class is not ascertainable; Plaintiffs fail to
meet any of the requirements of Rule 23(a), Fed. R. Civ. P.;
and they fail to satisfy the predominance and superiority
requirements of Rule 23(b), Fed.R.Civ.P. (Doc. 61).
RUSHMORE'S MOTION FOR RECONSIDERATION
requests that the Court reconsider its Order denying summary
judgment on Plaintiffs' FDCPA and FCCPA claims as to
Mortgage Statements I and II (Doc. 55) in light of a recent
Eleventh Circuit decision in Helman v. Bank of
America, No. 15-13672, 2017 WL 1350728 (11th Cir. Apr.
12, 2017) (unpublished).
Court has reviewed Helman and finds that the
disclaimer language in this case is distinguishable from
Helman, such that a jury should determine whether
Mortgage Statements I and II violate the FDCPA and FCCPA.
See Lilly v. Bayview Loan Servicing, LLC, No.
217CV345FTM99MRM, 2017 WL 4410040, at *4 (M.D. Fla. Oct. 4,
2017) (“The language in Helman expressly
stated that the debtor had no personal obligation to repay
the debt and no one could force her to do so. No language
even remotely resembling the same was used in this case.
Therefore, the Court declines to follow the result reached in
Helman.”). Moreover, Plaintiffs received ten
of their mortgage statements after foreclosure on their
home-a fact apparently not at issue in
Helman-further distinguishing the two cases.
Therefore, Rushmore's motion for reconsideration is due
to be denied.
PLAINTIFFS' RENEWED MOTION FOR CLASS
Rule 23 Class Certification Standard
concerning class certification are left to the sound
discretion of the district court.” Cooper v. S.
Co., 390 F.3d 695, 711 (11th Cir. 2004) (citing
Armstrong v. Martin Marietta Corp., 138 F.3d 1374,
1386 (11th Cir. 1998)). A class action “may only be
certified if the trial court is satisfied, after rigorous
analysis, that the prerequisites of Rule 23 are
satisfied.” Gen. Tel. Co. of SW v. Falcon, 457
U.S. 147, 161 (1982); see also Vega v. T-Mobile USA,
Inc., 564 F.3d 1256, 1266 (11th Cir. 2009). “This
analysis does not permit courts to be ‘generous or
forgiving' of failures of proof or to engage in
speculation as to [Federal Rule of Civil Procedure] 23's
requirements.” Mills v. Foremost Ins. Co., 269
F.R.D. 663, 669 (M.D. Fla. 2010) (citing Vega, 564
F.3d at 1269). “For a district court to certify a class
action, the named plaintiffs must have standing, and the
putative class must meet each of the requirements specified
in [Rule] 23(a), as well as at least one of the requirements
set forth in Rule 23(b).” Klay v. Humana, Inc., 382 F.3d
1241, 1250 (11th Cir. 2004).
threshold matter, Plaintiffs must demonstrate that the
proposed class is “adequately defined and clearly
ascertainable.” Little v. T-Mobile USA, Inc.,
691 F.3d 1302, 1304 (11th Cir. 2012). If the class is
ascertainable, Plaintiffs must then satisfy Rule 23(a) by
demonstrating: (1) the class is so numerous that joinder of
all member 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. Fed.R.Civ.P. 23(a).
all of Rule 23(a)'s requirements have been met,
Plaintiffs must also meet at least one of the class types
under Rule 23(b). Plaintiffs bear the burden of showing that
the proposed class meets every requirement of Rule 23(a) and
at least one of the Rule 23(b) acceptable class types.
Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d
1181, 1187 (11th Cir. 2003). Here, Plaintiffs seek
certification under Rule 23(b)(3), which requires the Court
to find 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.” Fed.R.Civ.P. 23(b)(3).
Rushmore challenges class certification on several grounds,
the Court limits its analysis to predominance, as failure to
satisfy Rule 23(b) is dispositive. See McCamis v. Servis
One, Inc., No. 8:16-CV-1130-T-30AEP, 2017 WL 589251, at
*5-6 (M.D. Fla. Feb. 14, 2017); Riffle v. Convergent
Outsourcing, Inc., 311 F.R.D. 677, 681-85 (M.D. Fla.
properly certified Rule 23(b)(3) class, “‘the
issues in the class action that are subject to generalized
proof, and thus applicable to the class as a whole, must
predominate over those issues that are subject only to
individualized proof.'” Jackson v. Motel 6
Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997)
(quoting Kerr v. City of West Palm Beach, 875 F.2d
1546, 1557-58 (11th Cir. 1989)). “The predominance
requirement is far more demanding than Rule 23(a)'s
commonality requirement.” McCamis, 2017 WL
589251, at *5 (internal quotation marks and citation
omitted). “Common issues of fact and law predominate if
they have a direct impact on every class member's effort
to establish liability and on every class member's
entitlement to injunctive and monetary relief.”
Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1357
(11th Cir. 2009). “Common issues will not predominate
over individual questions if, ‘as a practical matter,
the resolution of . . . [an] overarching common issue breaks
down into an unmanageable variety of individual legal and
factual issues.'” Cooper, 390 F.3d at 722,
overruled on other grounds, Ash v. Tyson Foods,
Inc., 546 U.S. 454 (2006).
is inappropriate in the event that “plaintiffs must
still introduce a great deal of individualized proof or argue
a number of individualized legal points to establish most or
all of the elements of their individual claims.”
Klay, 382 F.3d at 1254, abrogated in part on
other grounds by Bridge v. Phoenix Bond & Indem.
Co., 553 U.S. 639 (2008) (citations omitted). The
predominance inquiry requires an examination of “the
claims, defenses, relevant facts, and applicable substantive
law, . . . to assess the degree to which resolution of the
classwide issues will further each individual class
member's claim against the defendant.” Id.
(internal quotations and citation omitted).
putative class action, Plaintiffs bring claims against
Rushmore for violations of the FDCPA and the FCCPA.
Plaintiffs argue that common issues predominate over
individual questions and identify three common issues which
they argue will turn on common evidence:
(1) Whether the account statements were an attempt to collect
(2) Whether, given the relationship of the parties,
Defendant's communications violated the FDCPA; and
(3) Whether, given the relationship of the parties,
Defendant's communications violated the FCCPA.
(Doc. 58 at 9, 18-19). Plaintiffs identify only one defense
available to Rushmore: that Mortgage Statements I and II were
not attempts to collect debts but were merely for
informational purposes. (Id. at 19). They state that
Rushmore “does not point to any individual facts or
circumstances, ” and therefore, “Rushmore will be
able to make this common argument to the jury on behalf of
the statements sent to all class members
post-discharge.” (Id. at 19-20).
contrast, Rushmore argues that individualized inquiries
overwhelm the common questions. Specifically, Rushmore posits
that any of the following individual issues predominate: (1)
whether the statements were sent in connection with the
collection of a debt requires an individualized review of the
Bankruptcy Code's application to the borrower; (2)
whether the statements are deceptive or confusing according
to the least sophisticated consumer standard requires an
individualized analysis premised upon the particular
circumstances of the particular borrower; and (3) whether the
oral statements made by one or more Rushmore ...