United States District Court, S.D. Indiana, Indianapolis Division
MIKE SPIEGEL individually and on behalf of all others similarly situated, Plaintiff,
ASHWOOD FINANCIAL, INC., an Indiana corporation, Defendant.
ORDER ON PLAINTIFF'S AMENDED MOTION TO CERTIFY
J. McKINNEY, JUDGE United States District Court
action comes before the Court on Plaintiffs, Mike Spiegel,
individually and on behalf of himself and all others
similarly situated ("Spiegel's"), Amended
Motion to Certify Class (the "Motion"). Dkt. No.
32. Spiegel seeks to demonstrate that all of the
prerequisites for class certification pursuant to Rules 23(a)
and (b)(3) of the Federal Rules of Civil Procedure
("Rule 23(a)" and "Rule (b)(3), "
respectively) are satisfied. Defendant Ashwood Financial,
Inc. ("Ashwood") opposes Spiegel's Motion,
asserting that (1) Spiegel's claims are not typical of
the class because his debts have been discharged through
Chapter 7 bankruptcy; and (2) a class action is not a
superior method of adjudicating the claims at issue in light
of the fee shifting provision of 15 U.S.C. § 1692k(a)(3)
and the anticipated de minimus recovery available to
the putative class members. Dkt. No. 39.
reasons stated herein, the Court GRANTS the Motion.
BACKGROUND & ARGUMENTS
March 16, 2016, Spiegel received an initial form letter from
Ashwood, demanding payment of a delinquent consumer debt (the
"Letter"). Dkt. No. 1, ¶ 7. The Letter stated,
Unless within (30) days after receipt of the first
communication from this office you dispute the validity of
the debt or any portion thereof, it will be assumed to be
valid. If you notify this office information [sic] within the
thirty (30) day period after receipt of the first
communication from this office that you dispute the debt or
any portion thereof, this office will obtain verification of
the debt and a copy of such verification, along with the
creditor's name and address, will be mailed to you by
this office. If you request information, within the thirty
(30) day period, the name and address of the original
creditor, if different from the current creditor, this office
will provide you with the requested information. This is
required under the Fair Debt Collection Practices Act.
alleges that the Letter failed to state that any dispute of
the debt at issue or any request for the name and address of
the original creditor must be made in writing, in violation
of Fair Debt Collection Practices Act ("FDCPA")
under 15 U.S.C. §§ 1692g(a)(4) & (5).
Id. at ¶ 13. Spiegel further argues that
Ashwood's failure to notify Spiegel that such disputes or
requests must be in writing constituted unfair and
unconscionable collection actions in violation of the FDCPA
because whether a dispute could be made orally or in writing
could determine whether a consumer wishes to dispute the
debt. Id. at¶¶8, 17.
requests that the Court allow him to represent a class with
the following definition:
All persons similarly situated in the State of Indiana from
whom Ashwood attempted to collect a delinquent consumer debt,
via the same form collection letter that Ashwood sent to
Spiegel from one year before the date of the initial
Complaint to the present.
Dkt. No. 33 at 3. Plaintiff asserts that all the
pre-requisites for class certification pursuant to Rules
23(a) and (b)(3) are met.
as to numerosity, the parties agreed that the proposed class
would exceed 600 people. Id. at 4-5; David J.
Phillips Deck, ¶ 13; Dkt. No. 39 at 4-5. With respect to
commonality, Spiegel asserts that there are at least two
issues common to each class member: (1) whether the Letter
violates the FDCPA; and (2) the appropriate relief that
should be awarded. Dkt. No. 33 at 5-6. Similarly, Spiegel
states that his claims are typical of the class "because
they are brought pursuant to the FDCPA, relate to the
identical form debt collection letter, and involve the same
course of conduct by [Ashwood]." Id. at 6. In
regard to adequacy of representation, Spiegel asserts that
his claims are identical, rather than antagonistic, to those
of the class, and avers that he has sufficient interest in
the outcome to ensure vigorous advocacy. Id. at 7.
Spiegel's counsel is also highly experienced in bringing
class claims pursuant to the FDCPA. Id.; David J.
Phillips Decl. Spiegel asserts that questions of law or fact
common to the members of the class predominate over any
questions affecting individual class members because
"liability to each class member is based on the form
debt collection letter all members of the proposed class
received." Dkt. No. 33 at 8. Spiegel further argues that
a class action is superior to any alternative adjudication
methods because: (1) a class action ensures that the rights
of all class members are protected, even if they are unaware
of their rights; (2) the interests each class member has in
individually prosecuting their claims is small in light of
the relatively small amount of damages any party can receive
under the FDCPA; (3) no other litigation is currently pending
concerning the Letter by or against any members of the
proposed class; (4) principles of judicial economy favor
determining the legality of Ashwood's practices in one
action, rather than requiring every member of the potential
class to litigate these issues individually; and (5) this
case does not present any significant management problems if
the class was certified. Id. at 8-9.
argues that because Spiegel's debt was discharged through
Chapter 7 bankruptcy and he has no personal interest in
offsetting other putative class members' debts,
Spiegel's claims are not typical of the proposed class,
and Spiegel would not be willing to pursue set offs for other
class members' debts. Dkt. No. 39 at 6-12. Furthermore,
Ashwood argues that a class action is not a superior method
of adjudication in this instance because (1) the fee-shifting
provision of the FDCPA sufficiently incentivizes members of
the potential class to litigate their claims individually;
and (2) the potential class members would be entitled to only
de minimus recovery for their FDCPA claims due to
Ashwood's poor financial state. Id. at 12-15.