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Ortez v. Morton

United States District Court, D. Delaware

March 29, 2019

HERMAN ORTEZ, Plaintiff,
v.
MICHAEL P. MORTON, P.A., Defendant.

          REPORT AND RECOMMENDATION

          CHRISTOPHER J. BURKE UNITED STATES MAGISTRATE JUDGE.

         In this action filed by Plaintiff Herman Ortez ("Plaintiff') against Michael P. Morton, P. A. ("Defendant"), Plaintiff alleges violations of the Fair Debt Collection Practices Act ("FDCPA"). Presently before the Court is Plaintiffs Motion for Class Certification and Appointment of Class Counsel ("Motion"), (D.I. 18), which is opposed by Defendant. For the reasons that follow, the Court recommends that Plaintiffs Motion be DENIED.[1]

         I. BACKGROUND

         A. Factual Background

         Plaintiff Herman Ortez is a resident of New Castle County, Delaware, (D.I. 1 at ¶ 12), who formerly owned property at Le Pare Condominiums ("Le Pare"), (D.I. 20-2 at ¶ 6). Defendant, Michael P. Morton, P.A., is a law firm based in Greenville, Delaware, (D.I. 1 at ¶ 16), which represents the Association of Unit Owners of Le Pare Condominiums (the "Association"), (id, ex. 1).

         On or about February 21, 2018, Defendant sent a letter to Plaintiff (the "letter" or the "Feb. 21 letter"). (Id. at ¶ 23; see also id., ex. 1) The letter explains there "is a substantial and critical life-safety infrastructure problem at Le Pare" and that in order to address that issue, "an assessment on all Unit Owners was made last summer to bring in dollars to begin the first phase of the professional work that must be done[.]" (Id., ex. 1 at 1) The letter states that although 58% of the Unit Owners had by then paid the full assessment, Plaintiff had not done so, nor had Plaintiff agreed to a payment plan with the Association. (Id.) The letter goes on to explain that due to Plaintiffs non-payment, the Association referred collection of Plaintiffs assessment to Defendant. (Id. at 2) In the letter, Defendant encourages Plaintiff to either pay the assessment or arrange for a payment plan within the next 10 days. (Id.) However, Defendant explains that if the Association did not hear from Plaintiff within 10 days of the date of the letter, then the Association would "be left with no choice but to move forward in the manner that is provided for by" the "Delaware Uniform Common Interest Ownership Act, the Le Pare Condominium Association Declaration and the Code of Regulations (collectively, the 'Covenants')." (Id.)

         At the end of the letter, Defendant included a section titled "Important Disclosures[.]" (Id.) That section read as follows:

This is an attempt to collect a debt and any information obtained will be used for that purpose. You may dispute all or any portion of this debt within thirty (30) days of receipt of this letter by sending notice of such dispute to this office. Within ten (10) days of receipt of such dispute, this office will send you written verification of the debt. If you do not dispute the entire debt within such thirty (30) day period, this office will assume the entire debt is valid. If you dispute only a portion of this debt within such thirty (30) day period, this office will assume the undisputed balance of the debt is valid. If the creditor named herein is not the original creditor, this office will provide you with the name of the original creditor upon written request.

(Id.)

         In all, Defendant issued a total of 17 letters that were substantially similar to the letter described above. (D.I. 20 at ¶¶ 3, 7) A total of 18 individuals residing in Delaware were mailed one of those 17 substantially similar letters; all of these letters were mailed to an address at Le Pare. (Id. at ¶¶ 3, 5) Another such letter was mailed to an address in Delaware, but it was returned as undeliverable; Defendant subsequently re-mailed that letter to an address in Texas. (Id. At ¶4)

         B. Procedural Background

         Plaintiff filed his Complaint in the instant case on April 13, 2018. (D.I. 1) The Complaint, which is styled as a class action complaint against Defendant, contains two Counts alleging that Defendant violated certain provisions of the FDCPA. (Id.) More particularly, Plaintiff asserts that Defendant violated the statute because the Feb. 21 letter: (1) "does not set forth the amount of the Debt [owed by Plaintiff, ]" allegedly in violation of 15 U.S.C. § 1692g(a)(1), (id. at ¶ 52); (2) "does not set forth a statement that, upon the consumer's written request within [a] thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor[, ]" allegedly in violation of 15 U.S.C. § 1692g(a)(5), (id. at ¶ 53 (emphasis in original)); and (3) includes a demand for payment within 10 days that, when read in conjunction with other portions of the letter, "contradicts the FDCPA's validation notice[, ]" in violation of 15 U.S.C. § 1692g(b), (id. at ¶ 66).

         In the Complaint, Plaintiff defined the putative class, pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3), as follows:

All persons (a) with a Delaware address, (b) to whom Michael P. Morton, P. A., (c) within one year before the date of this complaint, (d) in connection with the collection of a consumer debt, (e) mailed an initial debt collection communication not returned to Michael P. Morton, P.A. as undeliverable (f) that (1) did not state the amount of the debt, or (2) advised the consumer that he should within ten (10) days from the date of the letter, either pay the now overdue assessment, fees and penalties in full, or contact the creditor to discuss how the consumer could arrange for a payment plan that will postpone collection actions by Michael P. Morton, P.A., or (3) did not state that upon the consumer's written request within the thirty-day period, Michael P. Morton, P.A. would provide the consumer with the name and address of the original creditor, if different from the current creditor.

(Id. at ¶ 35) Then, in his opening brief regarding the Motion, Plaintiff sought to modify that proposed class definition slightly, to now include "[a] 11 persons with an address in the United States ... to whom Michael P. Morton, P.A. mailed an initial communication that [had the characteristics described in the above-referenced portion of the Complaint]." (D.I. 19 at 1); Wiesfeld v. Sun Chem. Corp., 84 Fed.Appx. 257, 259 (3d Cir. 2004) (noting that a plaintiff may revise his class definition in a motion for class certification).[2] Thus, in light of the way the class is now defined by Plaintiff and in light of the facts set out in Section LA above, 19 persons (including Plaintiff) could possibly be a part of that class. (D.I. 20 at ¶ 8; D.I. 22 at 3)

         Plaintiff filed the instant Motion on August 31, 2018, (D.I. 18), and the Motion was referred to the Court by District Judge Maryellen Noreika on September 7, 2018, (D.I. 21). Briefing on the Motion was completed on October 4, 2018. (D.I. 23) The case is currently stayed pending the resolution of the Motion. (See August 6, 2018 Oral Order)

         II. LEGAL STANDARD

         Rule 23(a) states as follows:

One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable [the "numerosity ...

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