Diaz v. Residential Credit Solutions, Inc.

297 F.R.D. 42, 2014 WL 279473, 2014 U.S. Dist. LEXIS 8523
CourtDistrict Court, E.D. New York
DecidedJanuary 23, 2014
DocketNo. 12-CV-3781 (ADS)(ETB)
StatusPublished
Cited by7 cases

This text of 297 F.R.D. 42 (Diaz v. Residential Credit Solutions, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diaz v. Residential Credit Solutions, Inc., 297 F.R.D. 42, 2014 WL 279473, 2014 U.S. Dist. LEXIS 8523 (E.D.N.Y. 2014).

Opinion

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On July 31, 2012, the Plaintiff Altagracia Diaz (“the Plaintiff’), on behalf of herself and all others similarly situated, commenced this action against the Defendant Residential Credit Solutions, Inc. (“the Defendant” or “RCS”) for alleged unlawful credit and collection practices engaged in by the Defendant in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”). Presently before the Court is the Plaintiffs motion for class certification pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 23. In this regard, the Plaintiff seeks to certify a class defined as (a) all individuals in New York (b) who were sent a letter in the form of the form letter attached to the Plaintiffs motion papers as Exhibit A, which was not returned as undeliverable, (c) on or after July 31, 2011, and on or before August 20, 2012.

For the reasons set forth below, the Court denies the Plaintiffs motion without prejudice with leave to renew upon the submission of evidence concerning the Plaintiffs adequacy as the class representative in this action.

[46]*46I. BACKGROUND

The Defendant is a servicing company that manages performing and nonperforming residential mortgage loans. According to the Plaintiff, the Defendant is a “special servicer,” which means that it services distressed mortgages and attempts to collect on consumer mortgages that are in default when the Defendant first becomes involved. (Amend.Compl., ¶ 6.)

On or about May 5, 2012, the Defendant sent a validation notice to the Plaintiff, an individual, seeking to collect an alleged consumer debt. In this regard, the validation notice claimed that the Plaintiff owed a sum to JP Morgan Mortgage Acquisition Corporation (“JP Morgan”) in connection with a mortgage loan. The total debt was for $370,430.91.

According to the Plaintiff, the validation notice “is a form letter (designated OL0315) which [the] [Defendant uses for the purpose of attempting to comply with 15 U.S.C. § 1692g.” (Amend.Compl., ¶ 9.) In addition, it is alleged that the “Plaintiff did not receive any other document from [the] [Defendant purporting to contain the initial disclosures required by 15 U.S.C. § 1692g.” (Amend. Compl., ¶ 10.)

The Defendant’s May 5, 2012 letter advised the Plaintiff as follows:

You may notify RCS in writing within thirty days of receipt of this letter that the debt or any portion of the debt is disputed. If no notice is received by RCS within the 30 day period, it will be assumed that the above information is accurate and the debt is valid. If/once written notice is received within the 30 day period, RCS will obtain verification of the debt or a copy of a judgment against you, the consumer. A copy of the verification of debt or judgment will be mailed to the mailing address on record for you along, with, if requested in writing, a statement that provides the name and address of the original creditor.

(Amend.Compl., Exh. A.)

The Plaintiff asserts that this passage violates the FCPA, specifically 15 U.S.C. §§ 1692g(a), 1692e, 1692e(2) and 1692e(10). In this regard, the Plaintiff alleges that the letter (1) “[sjtates that any dispute that the debtor elects to send is to be in writing, when a writing is only necessary to obtain verification of the debt or the identification of the original creditor”; (2) indicates that the Defendant needs to receive notice that the debt is being disputed within the 30 day period, when the Plaintiff is only required to send her notice within that period and is not required to guarantee receipt; (3) “[sjtates that ‘[i]f no notice is received by RCS within the 30 day period, it will be assumed that ... the debt it is valid,’ without limitation, when only RCS and its principal may assume that it is valid”; (4) “[s]tates that all information set forth in the letter concerning the debt will be assumed to be valid, including information which the debtor knows nothing about and can know nothing about, such as whether RCS is holding any ‘unapplied funds’ and whether there is a negative ‘escrow balance,’ ” even though there is no authorization for this found in 15 U.S.C. § 1692g; and (5) fails to notify the debtor that he has the right to dispute a portion of the debt. (Amend.Compl., ¶ 12; Pl. Mem., pg. 2-4.)

II. DISCUSSION

A. Legal Standard for Class Certification

Before certifying a putative class, the Court must determine (1) whether the class meets the four Rule 23(a) requirements of numerosity, commonality, typicality and adequacy; and if so, (2) whether the class satisfies one of the three categories listed in Rule 23(b). See Brown v. Kelly, 609 F.3d 467, 476 (2d Cir.2010); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 202 (2d Cir.2008); City of Livonia Employees’ Ret. Sys. v. Wyeth, 284 F.R.D. 173, 176-77 (S.D.N.Y.2012). “The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23’s requirements has been met.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir.2010).

As the Supreme Court recently observed:

Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his [47]*47compliance with the Rule — that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. ... [Sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and [ ] certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been, satisfied. Frequently that rigorous analysis will entail some overlap with the merits of the plaintiffs underlying claim. That cannot be helped.

Wal-Mart Stores, Inc. v. Dukes, — U.S. —, —, 131 S.Ct. 2541, 2551,180 L.Ed.2d 374, 390 (2011) (citations and internal quotation marks omitted); see also Secs. Litig. v. Gen. Reinsurance Corp. (In re Am. Int’l Group Inc.), 689 F.3d 229, 237 (2d Cir.2012); Oakley v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Butler v. Suffolk County
E.D. New York, 2025
Rowe v. Cenlar FSB
E.D. New York, 2021
Zirogiannis v. Seterus, Inc.
221 F. Supp. 3d 292 (E.D. New York, 2016)
Keeton v. Countrywide Home Loans, Inc.
217 F. Supp. 3d 177 (District of Columbia, 2016)
Graff v. United Collection Bureau, Inc.
132 F. Supp. 3d 470 (E.D. New York, 2016)
Fariasantos v. Rosenberg & Associates, LLC
303 F.R.D. 272 (E.D. Virginia, 2014)
Diaz v. Residential Credit Solutions, Inc.
299 F.R.D. 16 (E.D. New York, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
297 F.R.D. 42, 2014 WL 279473, 2014 U.S. Dist. LEXIS 8523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diaz-v-residential-credit-solutions-inc-nyed-2014.