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Class Action Status Granted to Association Homeowners Alleging FDCPA Violations

Facts

Plaintiffs live in Ashbrooke Property Owners Association (“Association”) and missed their annual assessment payments of $115 for three straight years.  The Association hired Defendant, Equity Experts, to collect the past due amounts.  Under the Declaration the past due assessments accrued interest at the rate of 18% per annum, plus the Association could charge a late fee and the Owner was “liable to the Association for all costs and attorney’s fees…”  Equity Experts added fees for their constant contact package and their Pre-Foreclosure package in the amount of $750 and $1,495 respectively.  In December of 2013, Defendant advised Plaintiffs that their balance was $3,199.60, but that if they did not pay within 10 days the balance may be at least $6,644.60.  Plaintiffs filed suit seeking class certification because the interest rate charged exceeded the amount allowed under Georgia law and because the demands were in excess of sums allows under the Association documents.

Court
  1. The Georgia Federal District Court held that the Plaintiff met the four requirements for class certification under Federal Rule 23(a), specifically:
    1. Numerosity – Plaintiffs allege more than 100 class members and 40 is generally sufficient;
    2. Commonality – the excess interest rate charges is common and can be “uniformly determined” and the excess sums charges is a close decision, but for now the Plaintiffs meet this “low burden”;
    3. Typicality – The claims of Plaintiffs are typical of the claims of the class; and
    4. Adequate Representation – the Plaintiffs can adequately protect the interests of those they purport to represent, and the Court did not find any conflict of interest as argued by Defendant.
  2. Once the Rule 23(a) requirements are met, a plaintiff must then meet the Rule 23(b) requirements – Plaintiffs must show questions of law or fact common to class members predominate over any questions affecting only individual members and that class action is superior to other methods of adjudicating the case. Here the Court found that both the Predominance and Superiority tests were met.
Lessons
  1. The FDCPA is full of landmines, make sure if you recognize an issue, are sued, or are going to send a matter out for collection, that you hire an attorney knowledgeable in the FDCPA (Fair Debt Collection Practices Act).
  2. Relying on something being OK because it has always worked out in the past is a mistake and a logical fallacy. Just because you have not been caught or been sued in the past for FDCPA violations does not mean that it won’t happen in the future.

Usry v. EquityyExperts.org, LLC, N. CV 116-010 (S.D Ga. Mar 5, 2020)

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