Passa v. City of Columbus

266 F.R.D. 197, 2010 U.S. Dist. LEXIS 35121, 2010 WL 910116
CourtDistrict Court, S.D. Ohio
DecidedMarch 11, 2010
DocketNo. Civil Action 2:03-CV-81
StatusPublished
Cited by1 cases

This text of 266 F.R.D. 197 (Passa v. City of Columbus) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Passa v. City of Columbus, 266 F.R.D. 197, 2010 U.S. Dist. LEXIS 35121, 2010 WL 910116 (S.D. Ohio 2010).

Opinion

OPINION AND ORDER

NORAH McCANN KING, United States Magistrate Judge.

Plaintiff Tracy Passa (“plaintiff’), acting on behalf of herself and a putative class of plaintiffs, alleges that defendants violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., 42 U.S.C. § 1983, the Ohio Consumer Sales Practices Act (“OCSPA”), Ohio Revised Code (“O.R.C.”) § 1345.01 et seq., and other provisions of Ohio’s statutory and common law based on their participation in the City of Columbus’ (“City”) Check Resolution Program. On June 3, 2005, plaintiff filed the Amended Complaint, Doc. No. 33, naming as defendants the City, Buckeye Check-Cashing, Inc. and BCCI Management Co. dba Check$mart (“Check$mart”), Quick Cash Advance, Inc. dba Quick Cash USA (“Quick Cash”) and Cash Till Payday, Ltd. dba Always Payday (“Always Payday”) (the latter four referred to, collectively, as “the payday lenders”). Amended Complaint, ¶¶ 84-118.

With the consent of the parties, 28 U.S.C. § 636(c), this matter is before the Court on Plaintiffs Renewed Supplemental Motion for Certification of Plaintiff Class and Subclass as to Claims Against the City of Columbus, Doc. No. 149 (“Plaintiffs Motion to Certify”) and Motion of Defendant, City of Columbus, to Dismiss Plaintiffs Claims, Doc. No. 167 (“City’s Motion to Dismiss”). For the reasons that follow, Plaintiffs Motion to Certify is GRANTED and the City’s Motion to Dismiss is DENIED.

I. FACTS AND RELEVANT PROCEDURAL BACKGROUND

Plaintiff, a resident of Noble County, Ohio, obtained several “pay day” loans from Check$mart, a business located in Zanesville, Ohio, and licensed to make such loans pursuant to O.R.C. § 1315.35 et seq. Amended Complaint, ¶¶ 18-22, 57. Plaintiff issued post-dated checks to serve as collateral for those loans. Id. at ¶23, 59. For one of those loans, plaintiff and Cheek$mart executed a contract dated April 24, 2002 (“Contract”); that contract provided that Cheek$mart would loan $400.00 to plaintiff and that plaintiff agreed to pay to Check$mart $460.00 on May 8, 2002. Id. at ¶¶26, 63; Deferred Deposit, Early Deposit Clause and Disclosure Agreement, Doc. No. [200]*200146-15. Plaintiff informed Cheek$mart that she could not repay that loan and that the post-dated check she had given it as collateral would be dishonored if negotiated. Amended Complaint, ¶ 65. After plaintiff failed to repay the May 8, 2002, loan, Check$mart attempted to negotiate the postdated check. Id. at ¶¶29, 65. Plaintiffs checking account contained insufficient funds to cover the check. Id. at ¶¶ 65, 66.

At the time, the City maintained a Check Resolution Program, through the Dispute Resolution Unit of the City Attorney’s Office. Id. ¶ 26. Under the program, merchants eligible to participate in the Check Resolution Program filed a certified case submission application with the prosecutor’s office in Columbus, Ohio. Id. at ¶¶ 27-32. The case submission was automatically accepted and a hearing date was docketed. Id. at ¶ 36. Notices were then mailed from the prosecutor’s office to the alleged delinquent customer requesting that the customer appear at the Franklin County Municipal Court to resolve a complaint made against the customer. Id.

On July 11, 2002, the City sent plaintiff a letter indicating that Check$mart had scheduled a mediation through the Check Resolution Program, to be held on July 31, 2002, at 4:30 p.m., in an attempt to resolve the dispute related to the May 8, 2002, payday loan. Id. at ¶¶ 76-78 and Exhibit 9, p. 1, attached thereto. Plaintiff did not attend this mediation. Id. at ¶80. On August 6, 2002, the City sent a second notice to plaintiff, indicating that another mediation was to be held on August 14, 2002. Id. and Exhibit 9, p. 3, attached thereto. Plaintiff alleges that, by sending these notices, the City violated the FDCPA, the OCSPA, Section 1983 and the common law of Ohio. Id. at ¶¶ 84-118. Plaintiff alleges that the City illegally “lent Check$mart its official status and authority to assist Check$mart in collecting this consumer payday loan ....” Id. at ¶76. Also, plaintiff alleges that Quick Cash and Always Payday engaged in similar misconduct with then1 customers. Id. at ¶¶ 7, 8, 84-118. Plaintiff contends that the City made at least one communication to approximately 20,000 persons at the requests of Check$mart, Quick Cash and Always Payday. Id. at ¶ 7.

On July 24, 2003, this Court granted the City’s motion to dismiss for failure to state a claim for relief. Opinion and Order, Doc. No. 16. However, that judgment was reversed on appeal. Passa v. City of Columbus, 123 Fed.Appx. 694 (6th Cir.2005); see also Doc. No. 21. Thereafter, plaintiff amended the complaint and joined the payday lenders as defendants. Doc. No. 33. The Court denied the motions to dismiss challenging plaintiffs standing to assert claims against the payday lenders who had no contractual relationship with plaintiff. Opinion and Order, Doe. No. 80.

On March 6, 2007, the Court denied the City’s first motion for summary judgment in which the City argued that it does not qualify as a “debt collector” under the FDCPA or a “supplier” under the OCSPA. The Court reasoned that, in light of the City’s own description of its Check Resolution Program,1 genuine issues of material fact existed regarding the City’s status under those statutes. Opinion and Order, Doc. No. 118. The Court ultimately determined that the City did not qualify for an exclusion to the definition of “debt collector” under 15 U.S.C. § 1692a(6)(c). Opinion and Order, Doc. No. 141.

The Court also concluded that plaintiffs individual claims against Check$mart were subject to arbitration in accordance with her contract with Check$mart, Opinion and Order, Doc. No. 83, and those claims were therefore ordered to arbitration. Id. The arbitrator, after discovery, briefing, a hearing and supplemental submissions, issued a decision on June 18, 2007. Award of Arbitrator (“June 18, 2007 Arbitration Award”), attached as Exhibit 1 to Plaintiff Tracy Passa’s Reply in Support of Plaintiff s Motion to Certify a Class of Plaintiffs as to the Claims Against Defendants the City of Columbus and the City Prosecutor’s Office, Doc. No. 163 (“Plaintiffs Reply in Support [201]*201of Motion to Certify”). As an initial matter, the arbitrator identified plaintiff as the claimant and “Buckeye Check-Cashing, Inc. and BCCI Management Co., d/b/a Check$mart” as the respondents. Id., p. 1. In considering whether plaintiff had established a FDCPA violation, the arbitrator held that respondents were not, by virtue of their own collection efforts, “debt collectors” within the meaning of the statute. Id., pp. 3-4.

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Bluebook (online)
266 F.R.D. 197, 2010 U.S. Dist. LEXIS 35121, 2010 WL 910116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/passa-v-city-of-columbus-ohsd-2010.