McCall v. Drive Financial Services, L.P.

236 F.R.D. 246, 2006 U.S. Dist. LEXIS 40468, 2006 WL 1687167
CourtDistrict Court, E.D. Pennsylvania
DecidedJune 19, 2006
DocketNo. 05-CV-2463
StatusPublished
Cited by14 cases

This text of 236 F.R.D. 246 (McCall v. Drive Financial Services, L.P.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCall v. Drive Financial Services, L.P., 236 F.R.D. 246, 2006 U.S. Dist. LEXIS 40468, 2006 WL 1687167 (E.D. Pa. 2006).

Opinion

EXPLANATION AND ORDER

ANITA B. BRODY, District Judge.

Plaintiff Coleman McCall, Jr. brings this putative class action against Drive Financial Services, L.P. and Drive G.P., LLC (collectively, “Drive”). McCall alleges that Drive violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA”) by having their collection department send out collection notices with false threats on purported lawyer letterhead. Before me is McCall’s Motion for Class Certification (Doc. #18).

McCall seeks to certify a class consisting of “(a) all persons with addresses in the Commonwealth of Pennsylvania (b) to whom letters were sent on the ostensible letterhead of Thomas Asturias, Attorney at Law in an attempt to collect on a debt (c) which were sent by Drive Financial, not Asturias (d) in an attempt to collect a debt incurred primarily for personal, family or household purposes (e) since May 25, 2004.” (Mot. for Class Cert, at 1.) McCall argues that all of the requirements of Federal Rule of Civil Procedure 23(a) and (b)(3) for class certification have been met. Drive challenges plaintiffs adequacy as a class representative under Federal Rule of Civil Procedure 23(a)(4). For the reasons that follow, I find McCall to be an adequate class representative and certify the class.

I. Factual Background1

McCall obtained an automobile loan through Drive in September, 2002. After making payments to Drive over the next two years, McCall fell behind in his payment in 2004. Drive sent McCall various billing statements and collection letters, and then on February 16, 2005 sent McCall a collection notice on the purported letterhead of “Thomas Asturias, Attorney at Law.” The letter, which is the subject of McCall’s complaint, asked McCall to call Mr. Asturias at a telephone number that belonged not to a law [248]*248firm but to the collection department at Drive. No office address or bar information for Mr. Asturias was provided in the letter. The collection notice was prepared by Drive, not Mr. Asturias, and sent to its customers demanding payment under the ostensible authority of an attorney.

The letter stated that Asturias “as legal counsel for Drive may pursue action against you to retrieve the vehicle through the appropriate Court.” Asturias is not admitted to the Pennsylvania bar. The letter also stated that Asturias “as legal counsel for Drive, may seek a judgment against any nonexempt property you may own. Once judgment is rendered, [Asturias], where permitted by law, may also seek to garnish up to 25% of your current wages.” In response to discovery requests, Drive President and Chief Operating Officer Thomas Dundon submitted an affidavit stating that, during the class period, Drive sent out 204 letters to Pennsylvania consumers containing the same content as the letter to McCall. (Mot. to Cert. Class Ex. D.)

McCall filed a consumer class action on May 25, 2005, claiming that the letter violated the FDCPA. McCall was deposed on December 5, 2005. At his deposition, McCall stated that he had been employed as a custodial worker with the City of Philadelphia for almost five years. (Tr. 12/5/05 at 17.) He knew that he was a designated class representative, representing a class of 204 people, “everyone that received a letter like [his] in the state of Pennsylvania.” (Id. at 15, 26-27.) McCall described his responsibility as a representative as an obligation “to represent the class, to aid the lawyers in this case to the best of my ability, to make sure that the facts are true.” (Id. at 26-27.) He said that he believed Drive’s letter to him violated the law because it was sent by an attorney threatening to take his house, garnish his wages, come to his job, and sue him. (Id. at 31.)

McCall also admitted at his deposition that when he was twenty-three years old, he was convicted of robbing a convenience store in Bucks County. He was released in September 1996 after serving five years in prison. (Id. at 57-59.) McCall stated that he did not know the location of the store he robbed, the name of the store, how much money was involved, whether he was ordered to pay restitution to the victims, or whether there was a weapon involved in the robbery. (Id. at 58-62.) He stated that he did not believe he was ordered to pay restitution. (Id. at 59.) McCall said that he had never been arrested other than the robbery arrest in this case. (Id. at 61.)

In an effort to impeach McCall’s testimony, Drive submitted records from the Philadelphia County Court of Common Pleas showing that McCall was arrested on March 18, 1991 and May 9, 1991. (Def.’s Opp. to Mot. to Cert. Class Ex. B.) Drive also submitted a copy of the trial court’s Opinion on Post>-Verdict Motions from the Bucks County Court of Common Pleas. (Def.’s Opp. to Mot. to Cert. Class Ex. C.) The Opinion states that at trial, it was established that McCall “pointed a hand gun at his victim in order to effectuate the robbery.” (Id.) Finally, a printout of the docket of McCall’s conviction from the Bucks County Public Access System reveals that McCall was directed to pay $1,203 in restitution to the robbery victims. (Def.’s Opp. to Mot. to Cert. Class Ex. D.)

After discovery in this case was completed, plaintiff filed a Motion for Class Certification on January 6, 2006. On March 22, 2006, the parties appeared before me for oral argument on the class certification motion.

II. Discussion

To obtain certification, a class must satisfy the requirements of Federal Rule of Civil Procedure 23. Rule 23(a) sets forth four prerequisites to class certification:

(1) the class is so numerous that joinder 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.

[249]*249Fed.R.Civ.P. 23(a). These four requirements are referred to in the short-hand as (1) nu-merosity, (2) commonality, (3) typicality, and (4) adequacy of representation.

Once the prerequisites of Rule 23(a) are met, plaintiffs must also show that the action is maintainable under one of the three provisions of Federal Rule of Civil Procedure 23(b). In this ease, plaintiffs move for class certification under Rule 23(b)(3), which provides for certification when:

the court finds that the questions of law or fact common to members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.2

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Bluebook (online)
236 F.R.D. 246, 2006 U.S. Dist. LEXIS 40468, 2006 WL 1687167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccall-v-drive-financial-services-lp-paed-2006.