Drossin v. National Action Financial Services, Inc.

255 F.R.D. 608, 2009 U.S. Dist. LEXIS 23564, 2009 WL 289826
CourtDistrict Court, S.D. Florida
DecidedFebruary 2, 2009
DocketNo. 07-61873-CIV
StatusPublished
Cited by7 cases

This text of 255 F.R.D. 608 (Drossin v. National Action Financial Services, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drossin v. National Action Financial Services, Inc., 255 F.R.D. 608, 2009 U.S. Dist. LEXIS 23564, 2009 WL 289826 (S.D. Fla. 2009).

Opinion

ORDER GRANTING MOTION FOR CLASS CERTIFICATION

WILLIAM P. DIMITROULEAS, District Judge.

THIS CAUSE is before the Court upon Plaintiffs Motion for Class Certification [DE-19], filed herein on November 4, 2008. The Court has carefully considered the Motion, the Memorandum in Support [DE-20], the Appendix [DE-20-2], the Declarations in Support [DE-21; DE-22; DE-23], Defendant’s Response [DE-36], Plaintiffs Reply [DE-44], Defendant’s Supplemental Response [DE-70], Plaintiffs Supplemental Reply [DE-75], and is otherwise fully advised in the premises.

I. BACKGROUND

Plaintiff Wally E. Drossin filed this action on December 21, 2007, on behalf of herself and all others similarly situated. She alleges [611]*611that Defendant National Action Financial Services, Inc. (“NAFS”), violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. (“FDCPA”), and the Florida Consumer Collections Practices Act, Fla. Stat. §§ 559.55, et seq. (“FCCPA”), through its communications. Specifically, Plaintiff alleges, in the Amended Complaint, that in telephone messages she received on October 15 and 16, 2007, the Defendant failed to identify itself and failed to indicate the purpose of the messages. The messages stated as follows:

I am calling with the offices of National Action Financial Services. This message is being left in accordance with both Federal and State regulations. Unfortunately, due to the sensitive nature of this call, Federal laws prohibit the disclosure of any additional information at this time. If you intend to protect your rights as a consumer you will contact me immediately at 1-800-443-2918. That is 1-800-443-2918.1

II. DISCUSSION

The FDCPA requires that debt callers give “meaningful disclosure of the caller’s identity” when placing telephone calls, except when communicating with third parties. 15 U.S.C. § 1692d(6). The FDCPA also requires that in an initial oral communication, a debt collector must indicate that it is “attempting to collect a debt and that any information obtained will be used for that purpose,” and that in subsequent communications, the debt collector must identify itself as a debt collector. 15 U.S.C. § 1692e(ll). The Florida Consumer Collections Practices Act, Section 559.72(9) prohibits persons, in collecting consumer debts, from “claim[ing], attempt[ing], or threatening] to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist.” Fla. Stat. § 559.72(9).

A. Standing

“[P]rior to the certification of a class, and technically speaking before undertaking any formal typicality or commonality review, the district court must determine that at least one named class representative has Article III standing____” Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir.2000); see also, Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir.1987) (concluding that where no exception applies, class action is moot if no named plaintiffs claim is alive on date of certification); Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987). In the instant case, Plaintiff Wally E. Drossin is the only named Plaintiff and Defendant contends that she lacks standing. Thus, the Court will address this issue before moving on to the class certification arguments.

Defendant argues that the Plaintiff was not the intended recipient of the October 2007 calls and thus is not a consumer and lacks standing. According to Defendant, Plaintiff had also received calls in November and December of 2007, in which it did identify itself as a debt collection agency. It argues that those later messages were intended for Plaintiff, but that the earlier calls at issue here were meant for a different person with the last name “Drossin.” It contends that in October of 2007, it had an account that belonged to an individual named “J. Drossin.” Upon running a skip-trace search to locate potential phone numbers for that person, Plaintiffs number came up. However, it allegedly was the result of an error that, rather than a live caller phoning Plaintiff to determine if it was the correct number for J. Drossin, the auto-dialer called Plaintiff and left the messages at issue here. Defendant argues that since Section 1692e(ll) of the FDCPA only applies to a consumer, Plaintiff does not have standing to bring this action.

In support, Defendant points to cases in which parties that were not the intended recipients of the messages attempted to bring claims. For example, in Conboy v. AT & T Corp., 241 F.3d 242 (2d Cir.2001), the plaintiffs lacked standing to sue under Section 1692e(11) as their daughter-in-law was the consumer and they admitted that “they were in no way obligated to pay the [612]*612debt____” Conboy, 241 F.3d at 257. Similarly, in Sibersky v. Goldstein, 155 Fed.Appx. 10 (2d Cir.2005), the husband lacked standing as his wife was the only one who owed the debt and thus the only consumer. Sibersky, 155 Fed.Appx. at 11-12. Therefore, Defendant argues, since Plaintiff did not actually owe the debt that the October calls were in relation to and the messages were not intended for her, she does not constitute a consumer within the FD CPA’s definition.

First, the Court would note that the civil liability portion of the FDCPA provides that “any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person____” 15 U.S.C. § 1692k(a) (emphasis added).

The liability section [of the FDCPA] is couched in the broadest possible language; the statute is not limited to ‘consumers.’ Moreover, a number of violations proscribed by the Act harm persons other than consumers. [If non-consumers lacked standing, this would lead] to the absurd conclusion that Congress created a piece of consumer protection legislation with a ‘private attorneys general’ enforcement mechanism, and then failed to provide persons harmed by unfair debt collection practices with a cause of action.

Whatley v. Universal Collection Bureau Inc., 525 F.Supp. 1204, 1205-1206 (N.D.Ga.1981). The Court does recognize, though, as Defendant points out, that Section 1692e(11) does use the term ‘consumer’ specifically. As noted above, Section 1692e(11) provides that it is a violation “if the initial communication with the consumer is oral ... [to fail to disclose] that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector____” 15 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
255 F.R.D. 608, 2009 U.S. Dist. LEXIS 23564, 2009 WL 289826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drossin-v-national-action-financial-services-inc-flsd-2009.