Agan v. Katzman & Korr, P.A.

222 F.R.D. 692, 2004 U.S. Dist. LEXIS 13703, 2004 WL 1663823
District Court, S.D. Florida·Decided July 16, 2004·No. No. 03-62145-CIV·Published·Cited by 30 cases

Opinion

ORDER GRANTING MOTION FOR CLASS CERTIFICATION

DIMITROULEAS, District Judge.

THIS CAUSE is before the Court upon Plaintiffs’ Motion for Class Certification [DE-38]. The Court has carefully considered the Motion, Plaintiffs’ Memorandum in Support of their Motion [DE-39], Defendants’ Memorandum in Opposition to Plaintiffs’ Motion [DE-60], Plaintiffs’ Reply [DE-65] and is otherwise fully advised.

I. BACKGROUND

Plaintiffs are the owners of condominiums in Broward County, Florida. Plaintiffs Ramsey and Grace Agan jointly own a unit in Plaza East Condominiums, and Plaintiff Sherry Spies owns a unit in Karanda Village II. (Compl. Ex. B, F.) The Condominium Associations of Plaintiffs’ respective units sought to obtain assessments from Plaintiffs. (Compl. ¶12.) When Plaintiffs allegedly did not pay the assessments, Defendants, on behalf of the Condominium Associations, recorded claims of lien against Plaintiffs’ units. (Compl. Ex. B, G.) Defendants notified Plaintiffs of the claims of lien via letter and requested payment of the debts and related attorneys’ costs and fees. (Compl. ¶ Ex. A, B, E, F.) Defendants refer to these form letters as intent to foreclose letters.

Plaintiffs allege that Defendants overcharged consumers for attorneys’ fees and costs, in violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Specifically, Plaintiffs allege that Defendants, by inflating their attorneys’ fees and costs, violated the FDCPA by falsely representing “the character, amount or legal status” of debts, threatening to take an action that “cannot legally be taken or that is not intended to be taken” and using “false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a customer.” See 15 U.S.C. §§ 1692e(2)(A), 1692e(5), 1692e(10). Plaintiffs also allege that Defendants attempted to collect attorneys’ fees and costs that are not authorized by the agreements creating the debt and that are not permitted by law. See 15 U.S.C. § 1692f(l). Finally, Plaintiffs allege that Defendants violated the Florida Consumer Collection Practices Act (“FCCPA”) by failing to include due dates on the claims of lien and by attempting to collect debts that are not legitimate. See Fla. Stat. §§ 718.116(5)(b), 559.72(9).

Plaintiffs now request that this Court certify their case as a class action on behalf of (i) all persons to whom letters were sent (ii) in an attempt to collect a debt incurred for residential property assessment (iii) which were not returned undelivered by the U.S. Post Office. Plaintiffs request that the Court certify two subclasses: Subclass A, the Fair Debt Collection Practices Act Class, consisting of all persons to whom Defendants sent letters or claims of lien, similar to the ones received by Plaintiffs, during the one year period prior to December 2, 2003, and Subclass B, the Florida Consumer Collec[696] tions Practices Act Class, consisting of all persons to whom Defendants sent letters or claims of lien, similar to the ones received by Plaintiffs, during the two year period prior to December 2, 2003.

II. DISCUSSION

Parties seeking class action certification must satisfy the four requirements stated in Fed.R.Civ.P. 23(a), commonly referred to as “numerosity, commonality, typicality and adequacy of representation.” Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). “[E]ach proposed subclass must independently satisfy class action criteria.” Jones v. Roy, 202 F.R.D. 658, 662 (M.D.Ala.2001). Parties moving for class certification bear the burden of establishing each element of Rule 23(a). London v. Wal-Mart Stores, 340 F.3d 1246, 1253 (11th Cir.2003). If the party seeking class certification fails to demonstrate any single requirement, then the case may not continue as a class action. Jones, 202 F.R.D. at 662. Specifically, the four requirements of Rule 23(a) are:

(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.

In addition to meeting the four requirements of Rule 23(a), parties seeking class certification must prove that the action is maintainable under one of the three subsections of Rule 23(b). Amchem Prods. Inc., 521 U.S. at 614,117 S.Ct. 2231.

In deciding whether to certify a class, a district court has broad discretion. Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir.1992). Although a district court is not to determine the merits of a case at the certification stage, sometimes “it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Id. at 1570 n. 11. A class action may only be certified if the court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23 have been met. Gilchrist v. Bolger, 733 F.2d 1551,1555 (11th Cir.1984).

A. Rule 23(a) Requirements

1. Numerosity

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Agan v. Katzman & Korr, P.A., 222 F.R.D. 692, 2004 U.S. Dist. LEXIS 13703, 2004 WL 1663823 (S.D. Fla. 2004).

222 F.R.D. 692 (Agan v. Katzman & Korr, P.A.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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