Montano v. First Light Federal Credit Union (In re Montano)

493 B.R. 852, 2013 WL 2244216
United States Bankruptcy Court, D. New Mexico·Decided May 21, 2013·No. Bankruptcy No. 7-04-17866-TL; Adversary No. 07-1026·Published·Cited by 1 cases

Opinion

MEMORANDUM OPINION

DAVID T. THUMA, Bankruptcy Judge.

By their Motion For Relief from Order Decertifying Classes Entered on March 21, 2013 (the “Motion”), Plaintiffs ask the Court to reconsider its Order Decertifying Classes (the “Decertification Order”). Defendant responded to the Motion April 29, 2013 (the “Response”). For the reasons set forth below, the Court finds that the Motion is not well taken and should be denied.

I. BACKGROUND

Plaintiffs filed this adversary proceeding on February 19, 2007, and filed their First Amended Class Action Complaint on October 1, 2007, doc. 19 (the “Amended Complaint”).

[854]*854On October 15, 2008, the Court1 entered an order (the “Certification Order”) certifying the following classes:

Class 1 shall consist of the Rule 23(b)(2) class that seeks injunctive and declaratory relief. It shall consist of all persons that, since January 1, 1997, have received a discharge under Title 11 of the United States Bankruptcy Code from the United States Bankruptcy Court for the District of New Mexico, that scheduled First Light Federal Credit Union or Fort Bliss Federal Credit Union (its predecessor) as a creditor on his or her bankruptcy schedules or who, in fact, owed a debt to either First Light Federal Credit Union or Fort Bliss Federal Credit Union on the date they filed their bankruptcy petition, whether they listed First Light Federal Credit Union or Fort Bliss Federal Credit Union on their bankruptcy schedules or not.
Class 2 shall consist of the Rule 23(b)(3) class that seeks actual and/or punitive damages in addition to the relief sought by Class 1. It shall consist of all persons that, since January 1, 1997, have received a discharge under Title 11 of the United States Bankruptcy Code from the United States Bankruptcy Court for the District of New Mexico, that scheduled First Light Federal Credit Union or Fort Bliss Federal Credit Union (its predecessor) as a creditor on his or her bankruptcy schedules or who, in fact, owed a debt to either First Light Federal Credit Union or Fort Bliss Federal Credit Union on the date they filed their bankruptcy petition, whether they listed First Light Federal Credit Union or Fort Bliss Federal Credit Union on their bankruptcy schedules or not, and, who claims he or she was damaged by an alleged incorrect reporting to the national credit reporting agencies of the status of their debt or was induced by either credit union to repay a discharge-able or discharged debt in exchange for correction of the credit reporting information.

The Class 1 members seek to enjoin further alleged violations of the discharge injunction, while the Class 2 members seek money damages.

On December 21, 2012, Defendant filed a Motion to Decertify Class Actions, doc. 161 (the “Decertification Motion”). The matter was fully briefed, and on March 21, 2013 the Court entered a Memorandum Opinion and the Decertification Order. The Motion followed.

The Motion is based on Fed.R.Civ.P. 60(b)(1)2 and advances the following arguments in support of Plaintiffs’ request for relief:

1. The Court held that the size and make-up of Class 2 is unknown, while in fact the plaintiffs identified the class members as the same members as Class 1 (Motion, p. 2);
2. The Court stated that Plaintiffs’ counsel said he did not want to send a questionnaire to the Class 1 members because they would ‘not understand’ the survey and would not want to ‘go back and re-live’ anything related to their bankruptcy. This statement is false and misleading (Motion, p. 4);
3. The Court bases its opinion on the incorrect fact that “As much as 80% of the time, Defendant did not update its reporting to credit reporting agencies to indicate that a Member’s debt to Defen[855]*855dant has been discharged in bankruptcy, and continued to report the discharged debt as past due” (Motion, p. 4);
4. The Court bases its opinion on many other disputed factual findings (Motion, P- 5);
5. The Court’s ruling that “credit reporting of the sort complained of in this adversary proceeding, if it qualifies as an “act,” is facially permissible and does not constitute a per se violation of § 524(a)(2)” is improper for purposes of determining class certification issues (Motion, p. 5); and
6. The Court, construing In re Paul, 534 F.3d 1301 [1303] (10th Cir.2008), incorrectly concluded that only Plaintiffs who literally paid the debt can be damaged and therefore a member of either Class (Motion, p. 5).

II. Rule 60(b) Motions

“[R]elief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances.” Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1153 (10th Cir.2007) (quoting Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir.2006)). See also Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir.1999) (to the same effect). “Rule 60(b) relief is not available to allow a party merely to reargue issues previously addressed to the court.” Allender, 439 F.3d at 1242. In the Motion, Plaintiffs for the most part reargue matters the Court has already addressed. Thus, summary denial of the Motion under Rule 60(b) could be appropriate, Because this proceeding is somewhat unusual (it may be the only class action ever filed in the New Mexico bankruptcy court, it has been pending for more than six years, and it is now on its second judge), however, the Court will address Plaintiffs’ arguments.

III. Identification of Class 2

Plaintiffs object to the Court’s finding that the Class 2 members have not been identified. Motion, p. 2. Plaintiffs argue that they identified the Class 2 claimants

in many hearings that were held. The Class Action was an “opt out” case. If the Class 1 members did not want to participate as Class 2 claimants, they were required to “opt out.” Only one such individual opted out and this was made known to the Court in many various proceedings. However, all parties and the Court were on notice that the case was proceeding and the Class 2 claimants were substantially the same as the Class 1 claimants with the one exception.

Motion, p. 2. It may be true that Plaintiffs stated in “many various hearings” that only one Class 1 member “opted out” of being a Class 2 member, and/or that Class 2 consisted of the same members as Class l.3 If so, the statements appear to have been made in error. The definition of Class 2 in the Certification Order, and the form of notice approved by the Court and Plaintiffs,4 require more than inactivity to turn a Class 1 member into a Class 2 member. The agreed-upon notice states:

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Montano v. First Light Federal Credit Union (In re Montano), 493 B.R. 852, 2013 WL 2244216 (N.M. 2013).

493 B.R. 852 (Montano v. First Light Federal Credit Union (In re Montano)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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