Yarmolinsky v. PERPETUAL AM. FED. S. & L.

451 A.2d 92
CourtDistrict of Columbia Court of Appeals
DecidedOctober 7, 1982
Docket81-999
StatusPublished

This text of 451 A.2d 92 (Yarmolinsky v. PERPETUAL AM. FED. S. & L.) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yarmolinsky v. PERPETUAL AM. FED. S. & L., 451 A.2d 92 (D.C. 1982).

Opinion

451 A.2d 92 (1982)

Adam YARMOLINSKY, Appellant,
v.
PERPETUAL AMERICAN FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.

No. 81-999.

District of Columbia Court of Appeals.

Argued April 27, 1982.
Decided October 7, 1982.

Frederic Townsend, Washington, D. C., with whom Alan B. Morrison, Washington, D. C., was on the briefs, for appellant.

Louis J. Ebert, Washington, D. C., with whom James L. Hudson, Washington, D. C., was on the brief, for appellee.

*93 Before KELLY, KERN and BELSON, Associate Judges.

KELLY, Associate Judge:

The undisputed facts on this appeal are that appellant Yarmolinsky contracted to sell his condominium at 2828 Wisconsin Avenue, N.W., Washington, D.C., to Sarah Short Austin. Ms. Austin arranged for a purchase loan from American Federal Savings and Loan Association (American), a predecessor in interest to appellee Perpetual American Federal Savings and Loan Association (PAF). Settlement on the sale was held on June 28, 1979, at the offices of District-Realty Title Insurance Corporation (District Title). Appellant received the purchase price of the sale from District Title on July 10, 1979, twelve days after settlement.

Appellant sued individually for damages caused by American's delay in disbursing the loan proceeds and also included in his complaint a class action claim on behalf of others similarly situated. In a subsequent motion for class certification appellant alleged that PAF and its predecessors in interest, American and Perpetual Federal Savings and Loan Association (Perpetual Federal),[1] engaged in a practice of loaning money to buyers of real property without disbursing the loan proceeds until days or weeks after settlement, all the while charging the buyer interest on the loan amount from the date of settlement. He asserted, in effect, that PAF charged and collected interest on loans which had yet to be made.

In the complaint, appellant defined the members of the class as:

(a) persons who sold real estate to a buyer who obtained financing for the purchase of that property through a mortgage contract with defendant Perpetual-American [Federal] Savings and Loan or with either of defendant's predecessors in interest, American Federal Savings and Loan Association and Perpetual Federal Savings and Loan Association;
(b) the settlement date for the sale of that real estate was within three years of the date of filing of this complaint; and
(c) as a result of the failure of defendant or either of its predecessors to fulfill their obligations under the mortgage contract, the person did not receive the full contract price on the settlement date, but only received such money after the settlement date.

Appellant theorized that the class members are third party beneficiaries of the mortgage agreements between PAF or its predecessors and the buyers of the class members' real estate. He asserted that PAF or its predecessors breached their duty to class members under the terms of the loan agreements by failing to have the mortgage loan proceeds available for the use of the class members at settlement. Appellant claimed injury to class members from the loss of the use of interest at the prevailing market rate on the full contract price from the date of settlement until the date the full contract price was made available to the class members.

Before discussing class certification, we take note of appellant's assertion that the court erred in failing, sua sponte, to certify a "core" subclass within the perimeters of the class as defined in the complaint. This core class would consist of owners of residential real estate in the District of Columbia who sold their property to buyers who borrowed money to finance the purchase from PAF or American.[2] Certifying such a class would have eliminated problems stemming from the potentially nonobjectionable practices of Perpetual Federal, from the *94 differences between residential and commercial mortgage loans, and from any relevant variations among the laws of Maryland, Virginia and the District of Columbia.

I

Super.Ct.Civ.R. 23(a) and (b)(3)[3] say that a class action may be maintained if the class is so numerous that joinder of all its members is impracticable; if there are questions of law or fact common to the class; if the claims or defenses of the representative parties are typical of the claims or defenses of the class; if the representative parties will fairly and adequately protect the interests of the class, and if the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Super.Ct.Civ.R. 23(a), and (b)(3). Matters pertinent to the court's findings include: the interest of members of the class in individually controlling the prosecution or defense of separate actions; the extent and nature of litigation concerning the controversy already commenced by or against members of the class; the desirability or undesirability of concentrating the litigation of the claims in the chosen forum; and the difficulties likely to be encountered in the management of a class action. Super. Ct.Civ.R. 23(b)(3).

The plaintiff has the burden of showing that his cause of action meets the above prerequisites. It is within the trial court's discretion to decide whether this burden has been met. The trial court's decision will be reversed only if there has been an abuse of discretion. Brown v. Cameron-Brown Co., 92 F.R.D. 32, 37 (E.D. Va.1981); Newberry v. Washington Post Co., 71 F.R.D. 25, 26 (D.D.C.1976).

II

In denying the motion for class certification,[4] the trial court focused on the requirements of typicality, commonality, and superiority of the method of adjudication. Appellant claims that four questions of fact or law (stated infra) included in his individual claim are also common to the class, thus satisfying both the requirements of typicality and of commonality.

The requirement of typicality has often been associated with the requirement that the representative plaintiff adequately represent the class, i.e., that the interest of the representative plaintiff be co-extensive with the interests of other class members and that there be a lack of adverse interests *95 between the representative and the class. Sommers v. Abraham Lincoln Federal Savings & Loan Association, 66 F.R.D. 581, 586-87 (E.D.Pa.1975). To determine if the typicality requirement is met, the court considers the allegations in the complaint, the nucleus of facts underlying the allegations, and the evidence necessary to prove those facts. Id. at 587. Normally, factual variations do not preclude class certification where the claims arise out of the same legal or remedial theory. Donaldson v. Pillsbury Co., 554 F.2d 825, 831 (8th Cir.), cert. denied, 434 U.S. 856, 98 S.Ct. 177, 54 L.Ed.2d 128 (1977); Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir. 1975).

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