labeling the Rule’s four requirements as “numerosity, commonality, typicality, and adequate representation”
How later courts described this case
- labeling the Rule’s four requirements as “numerosity, commonality, typicality, and adequate representation”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:22-CV-302-FL
KIMBERLI LEWIS on behalf of herself and )
others similarly situated, )
)
Plaintiff, )
)
ORDER
v. )
)
EQUITYEXPERTS.ORG, LLC, )
)
Defendant. )
This matter is before the court on plaintiff’s motions to certify class and for extension of
time (DE 56, 73).1 The motions have been briefed fully, and the issues raised are ripe for ruling.
For the following reasons, the motion to certify class is granted in part and denied in part, and the
motion for extension of time is granted on the terms set forth herein.
STATEMENT OF THE CASE
Plaintiff commenced this consumer protection action in Wake County Superior Court,
April 14, 2022, asserting putative class action claims on behalf of herself and others similarly
situated, based upon allegedly improper debt collection practices by defendant in connection with
delinquent homeowners association dues payments.
Plaintiff asserts claims under the federal Fair Debt Collection Practices Act, 15 U.S.C. §
1692 et seq. (“FDCPA”); the North Carolina Collection Agency Act, N.C. Gen. Stat. § 58-70 et
seq. (“NCCAA”); and the North Carolina Debt Collection Act, N.C. Gen. Stat. § 75-50 et seq.
1 Also pending but not yet ripe is plaintiff’s motion for leave to file amended complaint (DE 78), which will
be addressed by separate order.
(“NCDCA”).2 Plaintiff seeks certification of this action as a class action; an award of actual,
statutory, and trebled damages; and an award of attorneys’ fees and costs.
Defendant filed a notice of removal August 4, 2022, on the basis of federal question
jurisdiction. Thereafter, defendant moved to dismiss all claims against it for failure to state a claim
and to strike plaintiff’s class allegations. The court granted in part and denied in part defendant’s
motion to dismiss May 31, 2023, allowing plaintiff’s claims to proceed, as pertinent here, under
the FDCPA, NCCAA, and NCDCA, as well as class action allegations, See Lewis v.
EquityExperts.org, LLC, No. 5:22-CV-302-FL, 2023 WL 3746484, at *8 (E.D.N.C. May 31, 2023)
(DE 25).
Defendant filed an answer and the court entered case management order July 18, 2023,
providing a discovery deadline for August 9, 2024. The court received notice of discovery disputes
February 7, 2024, and May 31, 2024, and plaintiff filed a motion to compel June 14, 2024, which
notices and motion the court referred to United States Magistrate Judge Brian S. Meyers.
November 6, 2024, the court granted in part and denied in part plaintiff’s motion to compel,
ordering defendant to produce additional materials in discovery as specified in the court’s order.
(See Order (DE 71) at 6-9).3
In the meantime, plaintiff filed the instant motion to certify class August 8, 2024, seeking
certification of the following three classes pursuant to Federal Rule of Civil Procedure 23(a) and
(b)(3):
2 Plaintiff also originally asserted claims under the North Carolina Unfair and Deceptive Trade Practices Act,
N.C. Gen. Stat. § 75-1.1 et seq. (“UDTPA”), and for common law unjust enrichment, which the court dismissed for
failure to state a claim in its order entered May 31, 2023. (DE 25).
3 The court entered an amended order November 7, 2024, correcting two scrivener’s errors in referencing
“plaintiff” instead of “defendant.” (DE 72 at nn. 5 and 7).
(1) Notice of Lien Class: All North Carolina homeowners, during the respective
statute of limitations period, that received a Notice of Lien from EquityExperts
substantially identical to the Notice of Lien delivered to Plaintiff.
(2) Notice of Intent to Foreclose Class: All North Carolina homeowners, during the
respective statute of limitations period, that received a Notice of Intent to Foreclose
from EquityExperts substantially identical to the Notice of Intent to Foreclose
delivered to Plaintiff.
(3) Unconscionable Collection Fee Class: All North Carolina homeowners that
were charged more than $1,200 in collection fees by EquityExperts during the
respective statute of limitations period.
(Motion to Certify (DE 56) at 1) (hereinafter referenced as the “notice of lien” “notice of intent to
foreclose” and “unconscionable collection fee” classes). Plaintiff relies upon the following in
support of her motion: 1) governing documents and account statements of Abbington Ridge
Homeowner’s Association (the “association”); 2) notices of unpaid balance, collection charges,
lien, and foreclosure sent by defendant to plaintiff; 3) law firm invoices sent to defendant; 4)
defendant’s homeowners’ association collection agreements and fee schedules; 5) defendant’s
account ledgers for plaintiff and two other examples; 6) claim of lien filed against plaintiff’s
property; 7) defendant’s “case notes” for plaintiff’s account; 8) deposition testimony by plaintiff;
Jacqueline Galofaro (“Galofaro”), defendant’s general counsel; and Erin Frye (“Frye”),
defendant’s former employee; and 9) a “firm resume” for plaintiff’s counsel. In opposition,
defendant relies upon plaintiff’s deposition testimony, a declaration by Galofaro, and exhibits
comprising a statement of defendant’s fees and a form hardship application. In reply, plaintiff
relies upon a declaration by counsel Ian E. Vance (“Vance”) and exhibits comprising summary
tables based upon counsel’s review of documents produced by defendant.
Upon joint motion of the parties, on September 5, 2024, the court extended the deadline
for discovery to December 4, 2024, and for dispositive motions to February 19, 2025. Plaintiff
filed the instant motion for extension of time November 7, 2024, seeking to extend those deadlines
to March 7, 2025, and March 21, 2025, respectively, as well as other preceding deadlines.
Defendant consents to an extension of the dispositive motions deadline but not to all other
extensions as detailed in the analysis herein.
Plaintiff also filed December 10, 2024, a motion for leave to file amended complaint,
relying upon a proposed amended complaint and a redline showing proposed changes. December
27, 2024, the court allowed an extension of time to January 10, 2025, for defendant’s response
thereto.
STATEMENT OF FACTS
For background purposes, the court summarizes the facts pertinent to the instant motion to
certify based upon evidence submitted by the parties. The court sets forth additional findings,
based upon the whole record, in the analysis herein.
The association’s covenants authorize it to charge homeowners quarterly assessment fees
and provide that “[a]ll assessments which are unpaid when due, together with interest and late
charges . . . and all costs of collection, including reasonable attorney’s fees, shall be a charge on
the land and shall be a continuing lien upon the Lot against which such assessment is made.”
(Association Covenants (Pl’s Ex. A. (DE 57-2)) at 1).4 They further provide, regarding the effect
of nonpayment:
4 Throughout this order, page numbers in citations refer to the page number specified by the document
displayed in the court’s case management /electronic case filing (CM/ECF) system, rather than the page number, if
any, showing on the face of the underlying document, in the event of a discrepancy between the two, as here.
Section 8. Effect of Nonpayment of Assessments: Remedies. An assessment not paid
within ten (10) days after the due date shall incur such late charge as the Board of Directors may
from time to time establish, and, if not paid within thirty (30) days after the due date, shall also bear
interest from the due date at the rate of fourteen percent (14%) per annum or the highest rate allowed
by law, whichever is less. The Association may bring an action at law or in equity against the Owner
personally obligated to pay the same and/or foreclose the lien against the Lot for which such
assessment is due. Interest, late payment charges, costs and reasonable attorney's fees of such action
or foreclosure shall be added to the amount of such assessment. No Owner may waive or otherwise
escape liability for the assessments provided for herein by non-use of the Common Area or by
abandonment of his Lot.
(Id. at 3).
Defendant is a Michigan company that entered into collection agreements with the
association between 2018 to 2021, which give it “the exclusive right to collect and receive
payments on accounts that have been referred to them, including payment of its fees.” (E.g.
Collection Agreement (P1l’s Ex. D (DE 57-5)) at 1). The association “authorizes [defendant] to
charge the fee(s) listed” in the schedules copied below, “together with all costs advanced or
incurred by Equity Experts to Association who will add these amounts to the account of delinquent
Unit and to the Unit Owner(s).”
STANDARD EQUITY EXPERTS COLLECTIONS FEES
*Interest may be charged on any unpaid fees and cost. up to the maximum rate authorized by law as a cost of
collection. This is separate and distinct from any mterest charged on Association assessments, pursuant to their
governing documents, to the delinquent owner account, which Equity Experts may collect for Association, pursuant
to their authorization.
Set-up & Compliance Package $270.00. or 30% of principal balance
at referral, whichever 1s greater.
Pre — Lien Notification $0.00
Prepare Certificate of Lien, Draft to Unit Owner and Record the Lien. $395.00 + actual costs
Prepare Release of Lien, Draft to Unit Owner and Record the Release of Lien. $100.00 + actual costs
Property Analysis Review $250.00
Chain of Title Verification $50.00
Stage 1 Outreach and Skip Tracing $350.00
Stage 2-4 Outreach $100.00 per stage
Enforcement Evaluation and Analysis $650-$1250.00
Varies: $1,500.00-$4.500.00 Est)
(Id. at 5). These are “standard” fees that defendant charges the association and other North
Carolina homeowners associations with which it enters into collection agreements. (Id.). “During
the time-frame in question, [defendant] had 79 associations that it partnered with to provide its
collection services in North Carolina.” (Galofaro Decl. (DE 63-1) ¶ 51).
Defendant “offers deferred-cost collections, which means that charges are incurred by an
association, but they do not have to immediately pay out-of-pocket for those services – [defendant]
bears all of the upfront out-of-pocket costs.” (Id. ¶ 19). “[G]enerally speaking, the activities and
work comprising the charges for [defendant’s] work is” based upon standardized “service
package[s].” (Id. ¶ 47). “When work is undertaken under any given service package, and because
[defendant’s] fees are flat-rate fees, the full amount of that package is charged to the Association.”
(Id.). “The costs to collect delinquent assessments typically do not vary based upon the total
amount owed to any given association. In this context, regardless of whether an assessment is
$1,000 per year or $10,000, the costs associated with collections and foreclosure are the same.”
(Id. ¶ 17).
Defendant’s fees are charged according to a uniform, “automated process,” in accordance
with defendant’s standard “chart of fees.” (Frye Dep. (DE 57-11) at 56). Defendant also uses
form collection letters and notices, with amounts and identifiers “[auto-]populated” and “auto-
generated” into the letters and notices. (Id. at 82-84, 87, 89; see, e.g., Pl’s Stmt. of Account (DE
57-6) at 1).
Plaintiff is a citizen and resident of Wake County, North Carolina, who has been the owner
of a home located at 6012 Herston Road, in Raleigh North Carolina, subject to the covenants of
the association, at all times relevant to plaintiff’s claims. (See Account History Report (Pl’s Ex. I
(DE 57-10)) at 1). Defendant sent plaintiff a letter March 11, 2019, stating the association
“transferred [her] account to [defendant] to collect a debt that they claim you owe,” noting an
“unpaid balance” of $469.00. (Pl’s Ex. K (DE 57-12) at 1). Defendant notified plaintiff April 15,
2019, that “an additional $350.00 collection cost has been charged to the association to be added
to your balance.” (P1’s Ex. L (DE 57-13) at 1).
On September 16, 2019, defendant sent plaintiff a “notice of lien filing” stating as follows:
Please be advised that a lien has been initiated against the property at 6012 HERSTON ROAD on
behalf of Abbington Ridge HOA, in the amount of $2810.00 to mclude past due assessments, late
fees, interest and collection costs, as authorized and permitted by the Declaration of Covenants for
Abbington Ridge HOA. In addition, a $545.00 lien filing processing fee has been added to your
account.
Be aware that a lien is an encumbrance on the title of your property. Such an encumbrance may
unpede any sale of your property or refinancing of the mortgage. To satisfy the lien and remove this
encumbrance to your property, you must remit payment in full. Payments should be made payable
to EquityExperts.org, LLC, and submitted to:
Equity Experts, 2391 Pontiac Road, Auburn Hills, MI 48326.
(Notice of Lien (Pl’s Ex. B (DE 57-3)) at 1) (hereinafter “notice of lien”). An internal “case note[]”
for plaintiffs account noted, on October 29, 2019, that “lien wont’ [sic] be recorded until after Oct
30.” (PI’s Ex. Q (DE 57-18) at 1). A claim of lien was filed against plaintiff's property November
1, 2019, stating that the secured amount owed was $2,810.00. (PI’s Ex. P. (DE 57-17) at 1).
From October 2019 to August 2021, defendant continued to place calls to plaintiff and add
charges to her account. (See Statement of Account (PI’s Ex. E. (DE 57-6)) at 2-3). During this
time, plaintiff entered into a payment plan and made a total of $782.45 in payments on her account.
(See id.) In January 2020, defendant added a $3,445.00 “Foreclosure Referral” fee to Plaintiff's
account. (Id. at 3). This charge later was removed on August 20, 2021, however it was reinstated
six days later, on August 26, 2021.
On that same date, defendant sent plaintiff a notice of intent to foreclose, providing as
follows:
Equity Experts represents the above referenced Creditor and is writing to provide you
with Notice of the Creditor’s intent to foreclose on outstanding liens for assessments against the
above referenced property. The lien(s) upon which the Creditor is foreclosing are as follows:
1. Date of Lien: 11/01/2019
Instrument No: 19-M-5050
Amount Secured: $2810.00
Total Owed to Creditor: $6339.00
To satisfy the lien(s) you must pay all amounts due to the Creditor by 09/25/2021. You
may have outstanding balances on your account not reflected in the above referenced liens. To
obtain the current payoff or to make payment arrangements, please contact the Creditor’s agent,
Equity Experts, at (855) 321-3973. Failure to satisfy the debt secured by the lien(s) on or before
the date stated herein may result in the sale of the Property.
You have the right to bring a court action in the circuit court of the county or city where
the Property is located to assert the nonexistence of the debt or any other defense you may have
to the sale. This office does not accept cash payments.
This is an attempt to collect a debt and any information obtained may be used for that
purpose.
(Notice of Intent to Foreclose (PI’s Ex. R (DE 57-19) at 1) (hereinafter “notice of intent to
foreclose”). As of July 7, 2022, accrued charges on plaintiffs account with defendant totaled
$7,463.25, minus payments made of $3,782.25, leaving the balance due in the amount of
$3,681.00. (See Statement of Account (PI’s Ex. E. (DE 57-6)) at 6).
Other homeowners with delinquent homeowners association fees referred to defendant for
collection were subject to similar charges. For example, one was charged $495 lien fee, as well as
additional fees thereafter, prior to making a payment to defendant for $1,230.89, then charged a
$1445 foreclosure referral fee and additional fees, prior to making a final payment of $2,464.83.
(Ellerbee Creek Preserve, Pl’s File 9860 (PI’s Ex. N (DE 57-15) at 1; see Fields Homeowners
Association, Pl’s File 9939 (PI’s Ex. N (DE 57-15) at 2)). Based upon review of all of defendant’s
account ledgers for North Carolina homeowners, plaintiff has identified 249 instances, where
defendant sent to a North Carolina homeowner a form notice of lien with a $395 lien charge,
substantially similar to the notice of lien sent to plaintiff, when the filing of the lien postdated the
letter. (Pl’s Ex. A-1 (DE 70-1) at 4; see Vance Decl. (DE 70-1) ¶ 8). Plaintiff has identified 168
instances where defendant sent to a North Carolina homeowner a form notice of intent to foreclose,
substantially similar to the notice sent to plaintiff. (Pl’s Ex. A-2 (DE 70-1) at 10). Finally, plaintiff
has identified 213 North Carolina homeowners who paid an amount to defendant in excess of
$1,200.00 to defendant.
COURT’S DISCUSSION
A. Motion to Certify
1. Certification Standard
Federal Rule of Civil Procedure 23(a) sets forth four “prerequisites” of a class action:
(1) the class is so numerous that joinder of all members is impracticable
[“numerosity”];
(2) there are questions of law or fact common to the class [“commonality”];
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class [“typicality”]; and
(4) the representative parties will fairly and adequately protect the interests of the
class [“adequacy”].
Fed. R. Civ. P. 23(a); see Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011) (labeling the
Rule’s four requirements as “numerosity, commonality, typicality, and adequate representation”).
“Additionally, the class action must fall within one of the three categories enumerated in Rule
23(b), with certification being appropriate under Rule 23(b)(3) when ‘(1) common questions of
law or fact predominate over any questions affecting only individual class members; and (2)
proceeding as a class is superior to other available methods of litigation.’” Career Counseling,
Inc. v. AmeriFactors Fin. Grp., LLC, 91 F.4th 202, 206 (4th Cir. 2024) (quoting Fed. R. Civ. P.
23(b)(3)).5 “In other words, Rule 23(b)(3) requires both ‘predominance’ and ‘superiority.’” Id.
“A party seeking class certification must affirmatively demonstrate [her] compliance with
the Rule—that is, [s]he must be prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact,” typicality of claims, and adequacy of representation.
Wal-Mart Stores, Inc., 564 U.S. at 350. “It is the plaintiffs’ burden to demonstrate compliance
with Rule 23.” EQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014). “[C]ertification is
proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule
23(a) have been satisfied.” Wal-Mart Stores, Inc., 564 U.S. at 350-351. “Rule 23 does not set
forth a mere pleading standard,” and “it may be necessary for the court to probe behind the
pleadings before coming to rest on the certification question.” Id. at 350.
“[I]n a class certification analysis, the court determines whether the Rule 23 requirements
have been satisfied without considering whether the proposed class is likely to prevail on the
merits.” Elegant Massage, LLC v. State Farm Mut. Auto. Ins. Co., 95 F.4th 181, 188 (4th Cir.
2024). At the same time, “[s]ince the requirements of Rule 23 are often enmeshed in the factual
and legal issues comprising the plaintiffs’ cause of action, the district court must rigorously
examine the core issues of the case at the certification stage.” Krakauer v. Dish Network, L.L.C.,
925 F.3d 643, 654 (4th Cir. 2019). “Although Rule 23 does not give district courts a license to
engage in free-ranging merits inquiries at the certification stage, a court should consider merits
questions to the extent that they are relevant to determining whether the Rule 23 prerequisites for
class certification are satisfied.” EQT Prod. Co., 764 F.3d at 358.
5 Internal quotation marks and citations are omitted from citations in this order unless otherwise specified.
2. Analysis
a. Commonality and Predominance
“Rule 23(b)(3)’s predominance requirement is necessarily intertwined with Rule 23(a)'s
commonality requirement.” Stafford v. Bojangles’ Restaurants, Inc, ___ F.4th ___, 2024 WL
5131108, at *4 (4th Cir. 2024). To meet these requirements, “all class members’ claims must
depend upon a common contention that is capable of classwide resolution.” G.T. v. Bd. of Educ.
of Cnty. of Kanawha, 117 F.4th 193, 202 (4th Cir. 2024) . The “types of common questions [that]
may be sufficient” are those that “generate common answers apt to drive the resolution of the
[defendant’s] liability.” Peters v. Aetna Inc., 2 F.4th 199, 243 (4th Cir. 2021). “[A] common
question is one where the same evidence will suffice for each member to make a prima facie
showing or the issue is susceptible to generalized, class-wide proof.” Tyson Foods, Inc. v.
Bouaphakeo, 577 U.S. 442, 453 (2016). “[D]etermination of its truth or falsity will resolve an
issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc.,
564 U.S. at 350.
By contrast, “[d]issimilarities within the proposed class have the potential to impede the
generation of common answers.” G.T., 117 F.4th at 202. An individual question is one where
“members of a proposed class will need to present evidence that varies from member to member.”
Tyson Foods, Inc., 577 U.S. at 453. “[I]f common questions predominate over individual
questions as to liability, courts generally find the predominance standard of Rule 23(b)(3) to be
satisfied.” Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 427–28 (4th Cir. 2003). In such
case, “the action may be considered proper under Rule 23(b)(3) even though other important
matters will have to be tried separately, such as damages or some affirmative defenses peculiar to
some individual class members.” Tyson Foods, Inc., 577 U.S. at 453.
Thus, “[t]he application of Rule 23 often turns on the cause of action” and the class action
requirements are “inextricably linked with the elements of a particular claim.” Krakauer, 925 F.3d
at 655. “Efficient and manageable classes require common proof, and the availability of such
proof turns on what exactly needs to be proven.” Id. The court “therefore begin[s] [its] analysis
by looking to the particular cause of action created by the [FDCPA],” in the context of the related
commonality and predominance requirements of Rule 23. Id.
Here, plaintiff seeks to advance class claims under both §1692e and §1692f of the FDCPA.6
The FDCPA prohibits a “debt collector” from using “any false, deceptive, or misleading
representation or means in connection with the collection of any debt,” as well as the use of “unfair
or unconscionable means” of collection. 15 U.S.C. §§ 1692e, 1692f. With respect to the first
type of violation, “[w]hether a communication is false, misleading, or deceptive in violation of §
1692e is determined from the vantage of the least sophisticated consumer.” Russell v. Absolute
Collection Servs., Inc., 763 F.3d 385, 394 (4th Cir. 2014). “To violate the statute, a representation
must be material, which is to say, it must be important in the sense that it could objectively affect
the least sophisticated consumer’s decisionmaking.” Elyazidi v. SunTrust Bank, 780 F.3d 227,
234 (4th Cir. 2015).
Concerning the second type of violation, an inference of “unfair or unconscionable means”
of collection, under § 1692f, may arise where a defendant attempts to collect an “amount (including
any interest, fee, charge, or expense incidental to the principal obligation),” that is not “expressly
authorized by the agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(1).
Although the United States Court of Appeals for the Fourth Circuit has not addressed standards
6 As noted in the court’s May 31, 2023, order plaintiff’s claims under the NCCAA and the NCDCA run
parallel, or in the alternative, to plaintiff’s FDCPA claims. (See Order (DE 25) at 11). For purposes of the instant
order, except where expressly noted herein, the court bases its analysis on plaintiff’s claims under the FDCPA, leaving
for a later juncture the issue of whether further differentiation of the state and federal claims is necessary.
for evaluating improper amounts of collection under § 1692f, other courts have recognized that the
FDCPA prohibits collection of fees that exceed “actual costs of collection,” or fees for “not-yet-
performed services and expenses,” or fees “unreasonably high” in relation to the value of the
principal amount of the debt. Sparks v. EquityExperts.org, LLC, 936 F.3d 348, 352 (6th Cir.
2019). “[T]he use of the term ‘costs’” in an association covenant “fairly impl[ies] that the
homeowner is obligated to pay only something akin to the actual costs of collection—and not any
charge, unrelated to actual costs, that the Association decides to levy.” Id.
The court turns below first to examining the notice of lien and notice of intent to foreclose
classes, and second to examining the unconscionable collection fee class, to determine whether
they meet commonality and predominance requirements.
i. Notice of Lien and Notice of Intent to Foreclose Classes
Common contentions unify both the notice of lien and notice of intent to foreclose classes.
For example, a common contention for each notice of lien class member is that a form notice of
lien sent to them “intentionally misrepresents that a lien has been filed . . . when in reality a lien
has not been filed.” (Pl’s Mem. (DE 57) at 16). This contention raises a critical question for the
resolution of each such class member’s claim, namely, “Is the form statement about the status of
the lien a ‘false, deceptive, or misleading representation’ under §1692e?” Answering this question
“will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-
Mart Stores, Inc., 564 U.S. at 350. If the answer is yes, then the notice of lien class members all
have the same basis for liability against defendant.
Similarly, for the notice of intent to foreclose class, a common contention for each class
member is that a form notice sent to them states that defendant “is foreclosing” on the property,
demands payment of “all amounts due” within 30 days, and states “[f]ailure to satisfy the debt
secured by the lien(s) on or before the date stated herein may result in the sale of” the property,
(E.g., Pl’s Ex. M (DE 57-14) (notice dated January 30, 2020)). This contention raises a critical
question for the resolution of each such class member’s claim, namely, “Are these form
representations about what defendant is doing, and can do, ‘false, deceptive, or misleading
representation[s]’ under §1692e?” If the answer is yes, then the notice of intent to foreclose class
members all have the same basis for liability against defendant.
An additional common contention for the notice of intent to foreclose class is that the form
notice omits “a detailed accounting of the assessments and fees that are included in the alleged
amount due for foreclosure pursuant to N.C. [Gen. Stat.] §§ 47f-3-116(f)(5) and 45-21.16(c)(5a).”
(Pl’s Mem. (DE 57) at 16). Further, plaintiff contends the form suggests that defendant “can
immediately foreclose despite the fact that the homeowner has the right to satisfy a lien and prevent
the sale of their homes until the expiration of the upset bid period.” (Id.). These contention raise
additional critical questions for each such class member’s claim, namely, “Do these omissions and
suggestions render the form ‘false, deceptive, or misleading,’ under §1692e?” If the answer is yes,
then the notice of intent to foreclose class members also have this common basis for liability
against defendant.
Finally, the notice of lien and notice of intent to foreclose classes share common
contentions that the notices state an amount owed that consists of “inflated, not yet incurred, and
unauthorized charges.” (Pl’s Mem. (DE 57) at 16). These contentions raise central questions for
each such class member’s claims, namely, “Do these statements regarding amount owed render
the notices ‘false, deceptive, or misleading,’ under §1692e?” and “Do the notices attempt to collect
lien and foreclosure fees that exceed actual costs of collection, or fees for not-yet-performed
services and expenses, or fees unreasonably high in relation to the value of the principal amount
of the debt, under §1692f?” If the answers are yes, then the notice of lien and notice intent to
foreclose class members also have these common bases for liability against defendant.
Furthermore, for the foregoing contentions, common “evidence will suffice for each
member to make a prima facie showing or the issue is susceptible to generalized, class-wide
proof.” Tyson Foods, 577 U.S. at 453. For example, regarding the contention that amounts
charged in the notice of lien are premature, plaintiff relies upon the form notice of lien stating “a
lien has been initiated against the property,” and “payment in full” must be made to remove the
lien, coupled with records showing a lien was not filed at the time the notice was sent. (E.g., Pl’s
Ex. B (DE 57-3) (notice dated September 16, 2019); Pl’s Ex. C (DE 57-4) (attorney invoice dated
October 31, 2019, with $150 lien filing fee); Pl’s Ex. P (DE 57-17) (lien filing November 1, 2019));
Pl’s Ex. A-1 (DE 70-1) at 4 (comparing date of notice of lien and date lien actually filed for putative
notice of lien class members); see Pl’s Mem. (DE 57) at 10 (citing “a $395 lien filing fee and $150
in attorney’s fee (the ‘$545 lien processing fee’ . . .) over thirty (30) days before performing this
task.”).
Regarding the contention that foreclosure fees are “inflated” or “unauthorized” (Pl’s Mem.
(DE 57) at 16), plaintiff relies upon a comparison of records for the type of the charge with the
type of the service rendered. (See, e.g., Pl’s Mem. (DE 57) at 10 (citing a “[$]3,445 Foreclosure
Referral Fee” in comparison to a $1,650.00 “foreclosure fee that [a law firm] would charge”
defendant); Id. at 3-4 (stating defendant “routinely takes the fee charged by the attorney and
doubles or triples it”); Pl’s Ex. A (DE 57-2) at 1 (allowing “all costs of collection”); Ex. D (DE
57-5) at 3 (approving scheduled fees as “costs of collection”); Ex. F (actual attorney invoice for
foreclosure); Ex. A-2 (DE 70-1) at 10 (listing recipients of notice of intent to foreclose); Ex. A-3
(DE 70-1) at 15 (listing amounts paid in excess of $1,200). In sum common evidence supports the
notice of lien and notice of intent to foreclose classes.
In considering further whether common contentions predominate over individual issues,
however, the court turns to defendant’s argument that plaintiff fails to establish Article III standing
and that class certification is inappropriate because individual issues of injury-in-fact exist. The
court disagrees with defendant regarding plaintiff’s establishment of Article III standing.
However, the court agrees with defendant, in part, that class certification to the full extent proposed
by plaintiff is inappropriate due to individual issues of standing.
“The irreducible constitutional minimum of standing requires a plaintiff to show (1) that
[s]he suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) that the
injury is fairly traceable to the challenged action of the defendant; and (3) that the injury would
likely be redressed by judicial relief.” Fernandez v. RentGrow, Inc., 116 F.4th 288, 294 (4th Cir.
2024). “To be concrete, an injury must be real, and not abstract.” Id. at 295. “Traditional tangible
injuries, like physical harm and monetary harm, are the most obvious.” Id. “Although every class
member must have Article III standing in order to recover individual damages, [courts] have
analyzed standing in the early stages of a class action based on the allegations of personal injury
made by the named plaintiffs.” Id.
There is no “separate ‘class action standing’ requirement.” Carolina Youth Action Project;
D.S. by & through Ford v. Wilson, 60 F.4th 770, 779 (4th Cir. 2023). Nevertheless, the court still
must examine whether “common questions predominate over individual questions” regarding
standing. Gunnells, 348 F.3d at 427–28. Such questions must be analyzed “to the extent that they
are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”
EQT Prod. Co., 764 F.3d at 358. Thus, a “court must consider under Rule 23(b)(3) before
certification whether [an] individualized issue of standing will predominate over the common
issues in the case, when it appears that a large portion of the class does not have standing, . . . and
making that determination for these members of the class will require individualized inquiries.”
Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1276–77 (11th Cir. 2019).
Here, plaintiff has demonstrated her own Article III standing by virtue of monetary harm
in the form of payments she has made as a result of defendant’s alleged violations of the FDCPA.
For example, she made payments on November 7, 2019, allegedly as a result of the inaccurate
notice of lien sent to her on September 16, 2019, and notice of intent to foreclose on January 30,
2020. (Pl’s Ex. E (DE 57-6) at 2-3). Plaintiff also has demonstrated that some other putative class
members made payments following receipt of the allegedly unlawful notices. (See, e.g., Pl’s Ex.
N (DE 57-15) at 1; see also Pl’s Exs. A-1, A-2, and A-3). Plaintiff and putative class members
who made payments to defendant thus suffered “monetary harm,” an “obvious” “traditional
tangible injur[y],” as a result of defendant’s alleged FDCPA violations. Fernandez, 116 F.4th at
295. On this basis, the instant case is distinguishable from Dreher v. Experian Info. Sols., Inc.,
856 F.3d 337 (4th Cir. 2017), cited by defendant, because there the named plaintiff could not
establish his own individual standing due to an absence of monetary harm. See Id. at 345.
However, defendant contends that some putative class members cannot establish standing
because they never “made a payment.” (Def’s Mem. (DE 63) at 13). Plaintiff does not purport to
establish standing for any such putative class members. Rather, she relies upon the assertion that
“[n]o injury is more concrete than the payment of money,” and she otherwise argues that absent
standing “the action would simply be remanded to Wake County Superior Court for further
proceedings.” (Pl’s Reply (DE 70) at 5). Conceivably, plaintiff could seek to establish standing
for putative class members who have never made a payment, on a theory that they suffered an
“informational injury” based upon “lack [of] access to information to which [they are] legally
entitled and that the denial of that information creates a real harm with an adverse effect.” Dreher,
856 F.3d at 345. But plaintiff has not pointed to evidence of standing under such a theory in this
case. (See Pl’s Reply (DE 70) at 5; see also Pl’s Mem. (DE 57) at 14 (relying on account statements
for other putative class members showing “collection costs charged and paid by the homeowner”)
and 17 (noting “when homeowners paid the excessive fees . . . can be calculated objectively”
during trial) (emphasis added)). More critically, plaintiff has not demonstrated that to establish
standing for all putative class members, as proposed without any limitation for payments made,
the “same evidence will suffice for each member to make a prima facie showing [or] the issue is
susceptible to generalized, class-wide proof.” Tyson Foods, Inc., 577 U.S. at 453.
Thus plaintiff has not met her burden to show that class claims premised upon a theory of
standing other than payments made will satisfy the commonality and predominance requirements.
Accordingly, on the court’s own initiative, the court limits the class definitions of the notice of lien
and notice of intent to foreclose classes to specify that class members must have made a payment
after receipt of either such notice. Absent this limitation, the classes are not certifiable. With this
limitation, these two classes are unified by common contentions “that predominate over individual
questions as to liability” and standing, such that “the predominance standard of Rule 23(b)(3) [is]
satisfied.” Gunnells, 348 F.3d at 428.
Before applying the additional Rule 23 requirements to these classes, as herein limited, the
court addresses arguments raised by defendant concerning the merits of plaintiff’s claims. For
example, defendant argues: 1) “The individual associations stand in the best shoes to resolve these
claims” and “[h]omeowners are circumventing their obligations to take this up with their
associations first”; 2) “FDCPA suits are an improper method of challenging the legality or validity
of a contract, mu[ch] less whether charges are or are not ‘reasonable’”; 3) “There can only be
violations of the FDCPA for the actual act of debt collection”; and 4) “Where the real issue is
whether or not a consumer is liable for the debt – and not unlawful collection practices – there can
be no violation of the FDCPA.” (Def’s Mem. (DE 63) at 13-14). Likewise, defendant suggests
that there is marketable value behind “at any step in the process,” negating a claim that any flat
fees are unreasonably inflated. (Galofaro Decl. (DE 63-1) ¶ 37). These arguments are misplaced
as a basis for opposing class certification. At this juncture, the court does not consider “whether
the proposed class is likely to prevail on the merits.” Elegant Massage, LLC, 95 F.4th at 188.
Indeed, each of these merits issues raised by defendant can be resolved on a class-wide basis,
demonstrating that there may be “common questions” that could “generate common answers apt
to drive the resolution of the [defendant’s] liability.” Peters, 2 F.4th at 243. Defendant may raise
these questions for resolution, if at all, upon a properly supported motion for summary judgment,
not the instant motion for class certification.
In sum, plaintiff has met commonality and predominance requirements for the notice of
lien and notice of intent to foreclose classes, as limited herein.
ii. Unconscionable Collection Fee Class
By contrast, plaintiff has not demonstrated that the unconscionable collection fee class, as
proposed, meets the commonality and predominance requirements of Rule 23(a) and 23(b)(3).
This proposed class suffers from an ambiguity and lack of clarity in its class definition and
supporting contentions. As contentions in support of this class, plaintiff asserts variously that
defendant’s collection fees are unlawful because they are: 1) “unauthorized,” 2) “inflated,” 3) “not
akin to actual costs incurred,” 4) “premature,” and 5) “in excess of the $1,200 cap” under the North
Carolina Planned Community Act (“NCPCA”). (Pl’s Mem. (DE 57) at 16). Plaintiff also
describes class members “being charged unconscionable costs from the universal Fee Schedule.”
(Id. at 17). Plaintiff further asserts a common contention is “whether [defendant’s] ‘packages’ are
reasonable considering the underlying charges and comparator options.” (Pl’s Reply (DE 70) at
9). Finally, plaintiff proposes a class definition that is comprised of “homeowners that were
charged more than $1,200 in collection fees by [defendant] during the respective statute of
limitations period.” (Pl’s Mot. (DE 56) at 1).
Plaintiff’s reliance upon all of these contentions for a single unconscionable collection fee
class serves to “mask a multitude of disparities” that is fatal to the commonality and predominance
requirements. Stafford, ___ F.4th ___, 2024 WL 5131108, at *5. “[I]t is circular logic for
plaintiff[] to create a laundry list of factually diverse claims and then assert that these claims, in
turn, prove the existence of a uniform company policy.” Id.
Plaintiff’s contentions for the unconscionable collection fee class rely upon disparate
theories that will require different types of evidence and methods of proof. See Tyson Foods, Inc.,
577 U.S. at 453. The court has already detailed above the contentions and proof that may be used
to show lien fees and foreclosure fees include “inflated, not yet incurred, and unauthorized
charges.” (Pl’s Mem. (DE 57) at 16). The contentions for the unconscionable collection fee class
that fees are “premature,” “not akin to actual costs incurred,” and “inflated,” are redundant when
they are based upon lien fees and foreclosure fees. (Id.). Apart from the contentions and methods
of proof already raised related to notices of lien and foreclosure, however, it is much less clear on
what common basis plaintiff will show a fee not linked to a lien or foreclosure is “inflated,”
“unauthorized,” or “unconscionable.”
This brings to the forefront plaintiff’s contention that defendant’s “collection costs” are “in
excess of the $1,200 cap” under the NCPCA, and the related class definition based upon
“homeowners that were charged more than $1,200 in collection fees.” (Pl’s Mot. (DE 56) at 1;
Mem. (DE 57) at 16). Plaintiff’s contention based upon the $1,200 cap is problematic because it
is unclear whether it pertains to the sum of all collection fees and costs, or instead only to attorneys’
fees associated with enforcement of a lien through foreclosure. The plain language of the
contention suggests the former broad interpretation, whereas the law and the following description
in plaintiff’s brief suggests the latter more narrow interpretation:
HOAs are permitted to place a lien on properties within 30 days of an unpaid
assessment, foreclose, and recover their attorneys’ fees; but there are strict statutory
mechanisms which govern this conduct, and the NCPCA caps the total amount of
attorneys’ fees at $1,200.00 for uncontested cases. See N.C.G.S § 47F-3-
116(f)(12). In other words, an attorney who is capable of completing the
enforcement of a lien through foreclosure, soup to nuts, is only able to charge a
maximum amount of $1,200.00 for all aspects of the collection process.[] If
necessary, HOAs can turn to their attorneys quickly, with a cap on fees, then use
the lien and foreclosure proceedings to ensure they receive payment of their
assessments.
(Pl’s Mem. (DE 57) at 3) (emphasis added). The cited statute in this passage provides that an HOA
“may foreclose a claim of lien . . . if the assessment remains unpaid for 90 days or more,” subject
to the limitation that, if uncontested, “attorneys’ fees and the trustee’s commission collectively
charged to the lot owner shall not exceed one thousand two hundred dollars ($1,200), not including
costs or expenses incurred.” N.C. Gen. Stat. Ann. § 47F-3-116(f)(12) (emphasis added).
Applying the narrower interpretation of the $1,200 contention, this part of the proposed
unconscionable collection fee class is subsumed within the proposed notice of lien and notice of
intent to foreclose classes. Because this narrower contention is redundant of part of the contentions
supporting those classes, the court exercises its discretion to carve it out from the unconscionable
collection fee class and apply it as a contention supporting only to the notice of lien and notice of
intent to foreclose classes. Stafford, ___ F.4th ___, 2024 WL 5131108, at *7 (noting that a district
court maintains discretion in “[b]reaking down a broad class” to ensure that “common questions
are properly defined and predominate within each subclass”).
By contrast, if interpreted more broadly, plaintiff’s $1,200 contention is too vague and
multifaceted to unify a class with common issues predominating over individual issues. Plaintiff
has not demonstrated common issues predominate over a class based on all “collection costs . . .
in excess of . . . $1,200,” without qualification, apart from lien and foreclosure fees. (Pl’s Mem.
(DE 57) at 16). The vagueness of this contention is due, in part, to the fact that some individuals
could incur that sum of fees through repetition of many small charges in a short amount of time,
whereas other individuals could incur a large amount of fees through just one or two larger charges.
Still others could incur fees spread out at different time periods, for different reasons, over a
proposed class period spanning almost seven years.7 Plaintiff has not demonstrated that analysis
of such disparate fee scenarios would involve similar types of proof and issues of fact or law, for
purposes of comparing charged fees with “actual costs of collection.” Sparks, 936 F.3d at 352.
In addition, for collection costs other than lien and foreclosure fees, plaintiff relies in part
upon a comparison to what the association charged for collection costs for plaintiff’s account in
2015-2018, prior to defendant’s involvement. (Pl’s Mem. (DE 57) at 6 (citing Pl’s Ex. I (DE 57-
10) at 1-6). However, for “all other North Carolina management companies,” she asserts only that
their collection costs “would be drastically less than what [defendant] charges for the simple reason
that the NCPCA caps attorney’s fees at $1,200.00.” (Pl’s Mem. (DE 57) at 6 (citing N.C. Gen.
Stat. § 47F-3-116(f)(12))) (emphasis added). This is not sufficient to show common issues of fact
7 Plaintiff proposes a class period from April 14, 2018, to the “date of Notice,” and she requests 60 days from
the date of a certification order to propose to the court for review a form of notice. (See Pl’s Mem. (DE 57) at 13, 24).
and “common proof” outside the context of the notice of lien and notice of intent to foreclose
classes. Krakauer, 925 F.3d at 655.
In sum, the unconscionable collection fee class, as proposed by plaintiff, is not certifiable
due to lack of commonality and predominance. The components of the unconscionable collection
fee class that are not overlapping with the notice of lien and notice of intent to foreclose classes
are not sufficiently unified by common contentions and proof to enable a determination that
“questions of law or fact . . . predominate over any questions affecting only individual members.”
Fed. R. Civ. P. 23(b)(2). Therefore, certification of the unconscionable collection fee class is
denied on this basis.8
b. Typicality
“To be given the trust responsibility imposed by Rule 23, a class representative must be
part of the class and possess the same interest and suffer the same injury as the class members.”
Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006). “The essence of the typicality
requirement is captured by the notion that as goes the claim of the named plaintiff, so go the claims
of the class.” Id. A “plaintiff’s claim cannot be so different from the claims of absent class
members that their claims will not be advanced by plaintiff’s proof of [her] own individual claim.
Id. at 466-467. “That is not to say that typicality requires that the plaintiff's claim and the claims
of class members be perfectly identical or perfectly aligned.” Id. at 467. “But when the variation
in claims strikes at the heart of the respective causes of actions, [courts] have readily denied class
certification.” Id.
8 In addition, and in the alternative, the court denies certification of the unconscionable collection fee class due
to a failure to show typicality and ascertainability, as detailed further herein.
Here, plaintiff has demonstrated typicality with respect to the notice of lien and notice of
intent to foreclose classes, as limited herein, because she possesses the same interest as putative
class members and she has suffered the same injury, in that she made payments as a result of the
allegedly improper notices she received. At the same time, plaintiff has not demonstrated
typicality with respect to a subset of putative class members who never made any payments.9 For
this subset, plaintiff has not demonstrated that she “suffer[ed] the same injury” as such putative
class members. Deiter, 436 F.3d at 466. This lack of typicality is augmented by plaintiff’s failure
to demonstrate common questions of proof and standing with respect to plaintiff and putative class
members who never made any payments.
Accordingly, for this additional reason, the court on its own initiative limits the class
definitions for the notice of lien and notice of intent to foreclose classes to require that all putative
class members made a payment during the limitations period.
Defendant argues that plaintiff’s claims are not typical of the proposed classes because of
the need to adjudicate defenses, including “bona fide error,” “reasonableness” of fees, statute of
limitations, and “mitigation of damages.” (Def’s Mem. (DE 63) at 18). The first three asserted
defenses, however, are by their nature resolvable on a class-wide basis in light of the class
definitions adopted herein. “To qualify for the bona-fide-error defense, a defendant is required to
show, inter alia, it maintained procedures reasonably adapted to avoid [a] violation.” Russell v.
Absolute Collection Servs., Inc., 763 F.3d 385, 389 (4th Cir. 2014). This defense may be resolved
by examination of defendant’s procedures as applied to all class members. Likewise, whether
defendant’s standard lien or foreclosure fees are reasonable, as reflecting “actual costs of
9 The typicality analysis also provides an additional, alternative, basis for denying certification of the
unconscionable collection fee class, as proposed. Plaintiff’s claims are not typical of those members of the
unconscionable collection fee class who received no notices of lien or notices of intent to foreclose.
collection,” Sparks, 936 F.3d at 352, are common issues of liability unifying the notice of lien and
notice of intent to foreclose classes. Finally, the statute of limitations is built into the class
definitions, and the proper cutoff date(s) can be determined on a class-wide basis.
Defendant’s assertion of a mitigation of damages defense also does not defeat typicality.
“In fact, Rule 23 explicitly envisions class actions with . . . individualized damage determinations.”
Gunnells, 348 F.3d at 428. “The possibility that individualized inquiry into [putative] [p]laintiffs’
damages claims will be required does not defeat the class action because common issues
nevertheless predominate” on issues of liability. Id. at 429. Moreover, to the extent defendant
seeks to argue that a failure to mitigate damages is an absolute bar to liability for plaintiff’s and
putative class members’ claims, this is a question going to the ultimate merits of the claims that
defendant can raise in the context of a summary judgment motion.
Thus, with the limitation set forth herein, the court finds plaintiff has demonstrated
typicality for the notice of lien and notice of intent to foreclose classes.
c. Adequacy
“The adequacy inquiry serves to uncover conflicts of interest between named parties and
the class they seek to represent.” Sharp Farms v. Speaks, 917 F.3d 276, 295 (4th Cir. 2019). “For
a conflict of interest to defeat the adequacy requirement, that conflict must be fundamental.” Id.
“A conflict is not fundamental when all class members share common objectives and the same
factual and legal positions and have the same interest in establishing the liability of defendants.”
Id.
Under this standard, plaintiff has demonstrated her adequacy as a class representative of
the notice of lien and notice of intent to foreclose classes as delineated herein, because of her
common factual and legal positions and the same interest in establishing the liability of defendant.
Plaintiff also has demonstrated that plaintiff’s attorneys are appropriate for appointment as class
counsel based upon their experience and qualifications. (See Pl’s Ex. S (DE 57-20)).
Defendant argues, nonetheless, that plaintiff is not an adequate class representative because
of her “general lack of knowledge and misunderstanding of key issues in this case.” (Def’s Mem.
(DE 63) at 23). For example, defendant asserts, “she has no specific recollection of the letters she
complains of,” “she relies upon a pamphlet from 2002 to substantiate what is and is not a
reasonable fee,” and “she had no idea a motion to dismiss was filed or what the results of it were.”
(Id.). However, “attacks on the adequacy of a class representative based on the representative’s
ignorance” are “expressly disapproved.” Gunnells, 348 F.3d at 430. “[I]n a complex lawsuit, such
as one in which the defendant’s liability can be established only after a great deal of investigation
and discovery by counsel against a background of legal knowledge, the representative need not
have extensive knowledge of the facts of the case in order to be an adequate representative.” Id.
A defendant’s attack on adequacy “must be more than merely speculative or hypothetical.” Id.
Here, defendant has not demonstrated that plaintiff is inadequate due to lack of knowledge, nor
that any other putative class member would have better understanding of the factual and legal
issues of the case, particularly in light of the complexity and novelty of the claims.
Accordingly, the adequacy requirement is met, and plaintiff has shown good cause for
appointing her attorneys as class counsel and for appointing plaintiff as class representative.
d. Ascertainability and Numerosity
“Rule 23 . . . contains an implicit threshold requirement that the members of a proposed
class be readily identifiable.” Career Counseling, Inc., 91 F.4th at 206. “Under that requirement
— which is commonly referred to as ‘ascertainability’ — a class cannot be certified unless a court
can readily identify the class members in reference to objective criteria.” Id. “[I]f class members
are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a
class action is inappropriate.” Id. By contrast, a proposed class may be ascertainable where “class-
wide data allow[s] for identification on a large-scale basis.” Peters, 2 F.4th at 243.
Plaintiff has demonstrated ascertainability of the notice of lien and notice of intent to
foreclose classes, based upon records of when such notices were sent, liens were filed, foreclosure
charges were assessed, and payments were made. Through this method, plaintiff identified 249
violations for the notice of lien class, and 168 violations for the notice of intent to foreclose class,
with most violations assigned to unique individual identifiers. (See, e.g., Pl’s Ex. A-1 and Ex. A-
2 (DE 70-1) at 4, 10). By virtue of the same showing, plaintiff also has met the related numerosity
requirement. Any adjustment to these numbers to account for the additional limitations in class
definitions imposed by the court can be made by reference to the same evidence.
Related to ascertainability, defendant argues that plaintiff’s proposed classes are “fail-safe
classes. (Def’s Mem. (DE 63) at 9). “[A] fail-safe class is defined so that whether a person
qualifies as a member depends on whether the person has a valid claim.” EQT Prod. Co., 764 F.3d
at 360 n. 9. Plaintiff’s notice of lien and notice of intent to foreclose classes are not fail-safe classes
because membership does not depend on whether the person has a valid claim, but rather on
whether the person made a payment after receiving a notice of lien or a notice of intent to foreclose
in substantially the form that plaintiff received.10 Whether plaintiff or any such person has a valid
claim is precisely the common question, not yet answered, that must be determined through this
litigation.
10 By contrast, the proposed unconscionable collection fee class is, at least in part, an improper fail-safe class,
because it is based upon an “unconscionable collection fee,” (Pl’s Mot. (DE 56) at 1) (emphasis added). This title
suggests that “whether a person qualifies as a member depends on whether the person has a valid claim.” EQT Prod.
Co., 764 F.3d at 360 n. 9. Thus, an additional, alternative, basis for denying class certification for this class as proposed
is that it is an improper fail-safe class, as proposed, thus not meeting the ascertainability requirement.
Accordingly, plaintiff has met the ascertainability and numerosity requirements for the
notice of lien and notice of intent to foreclose classes.
e. Superiority
A plaintiff must demonstrate that “proceeding as a class is superior to other available
methods of litigation.” Career Counseling, Inc., 91 F.4th at 206. Here, given the number of
putative class members, the similarity of the factual and legal bases of their claims and asserted
defenses, as delimited herein, as well as defendant’s use of uniform letters and procedures,
proceeding as a class is superior to other methods of litigation, such as a multitude of individual
actions brought on the same basis.
Defendant argues that class treatment is not superior because defendant “has a $0 net worth
(or possibly negative net worth),” and statutory damages under the FDCPA can only be 1% of its
net worth, or $500,000.00, whichever is less. (Def’s Mem. (DE 63) at 27). Defendant cites
Tourgeman v. Nelson & Kennard, 900 F.3d 1105 (9th Cir. 2018), for the proposition that “it is
Plaintiff’s obligation to prove sufficient net worth to sustain an FDCPA class action for statutory
damages.” Id.
Defendant’s argument premised upon its net worth, and its reliance upon Tourgeman, is
unavailing for several reasons. As an initial matter, the court in Tourgeman actually “certified a
class of consumer plaintiffs,” and only later dismissed the FDCPA class action claims prior to trial
on the basis of insufficient evidence of net worth to obtain statutory damages. See Tourgeman,
900 F.3d at 1107. The court did not consider this as a basis for denying class certification. See id.
Second, statutory damages are not the only damages available for a violation of the
FDCPA: A plaintiff may recover “any actual damage sustained” as well as “such additional
damages as the court may allow” subject to the statutory cap based upon net worth. 15 U.S.C. §
1692k(a). The plaintiff in Tourgeman expressly did not rely upon actual damages, and thus could
not recover on that alternative basis. See Tourgeman, 900 F.3d at 1108 n.6.
Here, by contrast, plaintiff relies in part upon actual damages, and her theory of standing
is dependent upon her actual payments made in response to allegedly improper notices. (Compl.
(DE 1-2) at 22 (seeking “actual and statutory damages”); Pl’s Reply (DE 70) at 5 (“No injury is
more concrete than the payment of money.”)). Plaintiff also seeks statutory damages under the
NCCAA and NCDCA, which provide damages of $500-$4,000 per violation without a net worth
cap. N.C. Gen. Stat. §§ 58-70-130(b) and 75-56(b). Therefore, defendant’s argument based upon
its net worth is unavailing, and plaintiff has met the superiority requirement for certification.
In sum, based on the foregoing, plaintiff has met all the requirements for class action
certification, subject to the limitations on plaintiff’s classes as set forth herein. In particular, only
the following classes are certified with the following limitations:
(1) Notice of Lien Class: All North Carolina homeowners, during the respective
statute of limitations period, that received a Notice of Lien from EquityExperts
substantially identical to the Notice of Lien delivered to Plaintiff, and thereafter
made a payment to EquityExperts.
(2) Notice of Intent to Foreclose Class: All North Carolina homeowners, during the
respective statute of limitations period, that received a Notice of Intent to Foreclose
from EquityExperts substantially identical to the Notice of Intent to Foreclose
delivered to Plaintiff, and thereafter made a payment to EquityExperts.
Plaintiff requests in her motion a period of 60 days from the date of certification to provide the
court with a proposed plan for providing notice to class members. For good cause shown, the court
directs the parties to file, jointly, a proposed plan for providing notice to class members, or if the
parties cannot agree upon a proposed plan, then to file their proposals separately. Thereupon, the
court will enter such order as is warranted for providing notice to class members.
B. Motion for Extension of Time
In addressing the instant motion, the court notes the following deadlines plaintiff seeks to
extend to which defendant has provided its consent:
The court also notes the following deadlines plaintiff seeks to extend which defendant
opposes:
Concerning the deadline for fact discovery, plaintiff has shown good cause for an extension
of time on the basis of the court’s November 6, 2024, order compelling defendant to produce
additional materials in discovery. In particular, the day before the current deadline for fact
discovery expired, the court ordered defendant to provide to plaintiff: 1) complete and unredacted
copies of defendant’s procedure manual and compliance manual within 14 days; 2) a list of
employees who sent emails to NC HOAs and a list of NC HOAs who have received emails from
defendant’s employees within 7 days (out of which plaintiff was directed to designate three
employees and 25 HOAs, together with 15 search terms, within 14 days); and 3) a subset of such
emails, within 30 days of receipt of plaintiff's designation. (DE 71 at 9; see DE 72 at 9).
30
It reasonably follows from the court’s November 6, 2024, ruling that plaintiff should be
entitled to conduct depositions and written discovery related to the materials ordered to be
produced therein. While defendant argues that plaintiff was not diligent because she did not earlier
“explore numerous compromises” with defendant, did not earlier seek to conduct another Rule
30(b)(6) deposition, and did not earlier serve more than “limited additional discovery requests,”
(Def’s Opp. at 4-5), plaintiff has demonstrated diligence through her pursuit of her motion to
compel. Plaintiff also has shown she would be prejudiced by not being permitted to conduct
additional fact discovery related to the materials ordered to be produced.
Accordingly, the court allows plaintiff's extension of the fact discovery deadline, but the
court limits the scope of discovery to that related to the materials ordered to be produced. The
court allows plaintiff to conduct up to three more depositions, including one additional Rule
30(b)(6) deposition, and to serve related written discovery, if any. On the same basis, the court
allows plaintiff's request for an extension of the deadline for expert disclosures, where plaintiff
suggests that her proposed experts may review materials now produced by defendant and then
revise or complete their expert reports.
Further, in light of the passage of time, the court on its own initiative adjusts the extended
deadlines to account for delays due to the pendency of the instant motion and orderly conduct of
the remaining fact and expert discovery.
In sum, for good cause shown, case deadlines are extended as follows:
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Expert Discovery December 4, 2024 March 28, 2025
CONCLUSION
Based on the foregoing, plaintiffs motion to certify class (DE 56) is GRANTED IN PART
and DENIED IN PART as set forth herein. The court certifies only the following two classes
defined as follows, pursuant to Rule 23(a) and 23(b)(3):
(1) Notice of Lien Class: All North Carolina homeowners, during the respective
statute of limitations period, that recetved a Notice of Lien from EquityExperts
substantially identical to the Notice of Lien delivered to Plaintiff, and thereafter
made a payment to EquityExperts.
(2) Notice of Intent to Foreclose Class: All North Carolina homeowners, during the
respective statute of limitations period, that recerved a Notice of Intent to Foreclose
from EquityExperts substantially identical to the Notice of Intent to Foreclose
delivered to Plaintiff, and thereafter made a payment to EquityExperts.
Plaintiffs’ attorneys of record are appointed as class counsel, and plaintiff is designated class
representative. Within 60 days of the date of this order, the parties are DIRECTED to file, jointly,
a proposed plan for providing notice to class members, or if the parties cannot agree upon a
proposed plan, then to file their proposals separately. Plaintiff's motion for extension of time (DE
GRANTED on the terms set forth herein.
SO ORDERED, this the 6th day of January, 2025.
C eet W. FLANSOAN
United States District Judge
32