District Court (N.Y.) Says Consumer v. Commercial Nature of Debt Does Not Defeat Certification in FDCPA Class Action

In Bitzko v. Weltman, No. 1:17-CV-00458 (BKS/DJS), 2019 U.S. Dist. LEXIS 161495 (N.D.N.Y. Sep. 23, 2019), the District Court held that having to inquire about the consumer nature of a debt from putative class members in an FDCPA class action did not defeat class certification.

Defendant asserts that using its records to identify potential class members, and then asking those members about the nature of their debt during the class notification process would require “extensive and individualized fact-finding or mini-trials.” (Dkt. No. 52, at 17) (citation omitted). 29 Despite Defendant’s contention, numerous federal courts throughout the country have certified similar classes using similar means. See Grubb v. Green Tree Servicing, LLC, No. 13-cv-07421, 2017 WL 3191521, at *18, 2017 U.S. Dist. LEXIS 117465, at *52 (D.N.J. July 27, 2017); Luther v. Convergent Outsourcing, Inc., No. 15-cv-10902, 2016 WL 1698396, at *4, 2016 U.S. Dist. LEXIS 56456, at *10-11 (E.D. Mich. Apr. 28, 2016); Kalkstein, 304 F.R.D. at 120; Gold, 306 F.R.D. at 630; Butto, 290 F.R.D. at 383; Selburg v. Virtuoso Sourcing Grp., LLC, No. 1:11-cv-1458, 2012 WL 4514152, at *3, 2012 U.S. Dist. LEXIS 142653, at *8-10 (S.D. Ind. Sept. 29, 2012); Macarz v. Transworld Sys., Inc., 193 F.R.D. 46, 57 (D. Conn. 2000). Butto is instructive. 290 F.R.D. at 381-83. In a similar FDCPA action, the court foundevidence to suggest that the defendant’s records would be useful in determining which of the individuals mailed letters were protected by the FDCPA. However, the court found that even if the defendant’s records could not differentiate between consumer and non-consumer debt, “this fact alone does not preclude class treatment . . . class members may be asked a single question to determine whether they are entitled to relief . . . The Court does not find it particularly arduous to ask potential class members the simple question of whether the individual’s debt at issue qualifies as a consumer debt.” 290 F.R.D. at 383 (citations omitted); see also Kalkstein, 304 F.R.D. at 120. In Gold, another FDCPA class certification decision, the court found that the proposed class was ascertainable because the defendant’s records could serve as a starting place for the purposes of identification, and then “[f]urther identification of class members may be carried out through use of a court-approved notice and claim form.” 306 F.R.D. at 630. So too, here. As Plaintiff points out, there is evidence in the record that suggests that Defendant’s records can identify, at least as a preliminary matter, who is a consumer. The individuals so 30 identified can be asked a simple about whether their debt at issue qualifies as consumer debt in conjunction with class notification.11 The Court thus finds that the “modest threshold requirement” of ascertainability has been fulfilled. Petrobras, 862 F.3d at 264. And whether Defendant’s argument regarding the difficulty of proving class membership is considered as part of the ascertainability analysis or as part of numerosity, commonality, typicality, or superiority, under the circumstances of this case the Court finds that individualized inquiries into each class member’s debt does not preclude class certification. If Defendant discovers, after the class is certified, that the “class identification is unworkable or unreliable, [it] may move to decertify the class.” Gold, 306 F.R.D. at 634.12