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Class not certified in suit against lawyer

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A federal judge denied a motion for class certification in a suit filed under the Fair Debt Collection Practices Act against an Indianapolis attorney. However, he did suggest the plaintiff file another motion for class certification for two separate groups.

U.S. District Judge William Lawrence denied Mark R. Rayl's motion for class certification Thursday because he didn't believe Rayl is an appropriate class representative for the entire proposed class. Rayl filed the suit in federal court against Merrill Scooter Moores in May 2009 alleging Moores' form of initial debt collection communication violated the FDCPA.

Moores filed more than 100 notices of claim in Marion County Small Claims Court in May 2008 alleging unpaid or delinquent dues for the Wildcat Run Homeowners' Association. The notices had a telephone number for Moores that went to a voicemail message from Moores about the unpaid dues. Rayl received a notice and believed the message was an "initial communication" by a debt collector as defined by the FDCPA and that Moores violated the act by failing to provide certain information that the statute requires provided within five days of the initial communication.

Rayl wanted the court to certify a class of people who were sued by Moores regarding the Wildcat Run debt between May 1, 2008 and May 1, 2009, in which "a telephone number leading to a pre-recorded voice mail message was referenced as a contact telephone number" for Moores on the small claims complaint.

The case, Mark R. Rayl, individually and on behalf of those similarly situated v. Merrill Moores, No. 1:09-CV-554, was filed in the U.S. District Court, Southern District of Indiana, Indianapolis Division.

Judge Lawrence had concerns regarding the typicality requirement and the related adequacy of representation requirement under Federal Rule of Civil Procedure 23.

"The problem is this: the proposed class includes all of those who were sued by means of a notice of claim containing a telephone number that led to the Defendant's pre-recorded voice mail message," he wrote. "Without prejudging the merits, it is not entirely clear to the Court how those members of the class who did not actually listen to the voice mail message (or at least learn of its contents) will be able to demonstrate that the voice mail message was an 'initial communication' as to them."

Judge Lawrence suggested the proposed class actually is made of two groups: people who heard the message and those who did not. As such, Rayl would only be an appropriate class representative for one of those two groups. The judge explained Rayl is free to file another motion to certify addressing the concerns of the court or the case can proceed as to Rayl individually.

Moores faces potential sanctions in this case for his failure to appear and his blatant ignoring of the case, opposing counsel, and the court's orders, according to a Jan. 22 order following a show cause hearing. Magistrate Judge Tim Baker laid out in the order how Moores, who is representing himself in the action, "has wholly abandoned any defense of this action." Moores was ordered to respond to Rayl's outstanding discovery by today. Magistrate Judge Baker suggested sanctions such as reimbursement of Rayl's reasonable fees and costs because of Moores' "insouciant conduct" even if Rayl doesn't prevail on his claim or even possible admonishment.

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  1. Living in South Bend, I travel to Michigan a lot. Virtually every gas station sells cold beer there. Many sell the hard stuff too. Doesn't seem to be a big deal there.

  2. Mr. Ricker, how foolish of you to think that by complying with the law you would be ok. Don't you know that Indiana is a state that welcomes monopolies, and that Indiana's legislature is the one entity in this state that believes monopolistic practices (such as those engaged in by Indiana Association of Beverage Retailers) make Indiana a "business-friendly" state? How can you not see this????

  3. Actually, and most strikingly, the ruling failed to address the central issue to the whole case: Namely, Black Knight/LPS, who was NEVER a party to the State court litigation, and who is under a 2013 consent judgment in Indiana (where it has stipulated to the forgery of loan documents, the ones specifically at issue in my case)never disclosed itself in State court or remediated the forged loan documents as was REQUIRED of them by the CJ. In essence, what the court is willfully ignoring, is that it is setting a precedent that the supplier of a defective product, one whom is under a consent judgment stipulating to such, and under obligation to remediate said defective product, can: 1.) Ignore the CJ 2.) Allow counsel to commit fraud on the state court 3.) Then try to hide behind Rooker Feldman doctrine as a bar to being held culpable in federal court. The problem here is the court is in direct conflict with its own ruling(s) in Johnson v. Pushpin Holdings & Iqbal- 780 F.3d 728, at 730 “What Johnson adds - what the defendants in this suit have failed to appreciate—is that federal courts retain jurisdiction to award damages for fraud that imposes extrajudicial injury. The Supreme Court drew that very line in Exxon Mobil ... Iqbal alleges that the defendants conducted a racketeering enterprise that predates the state court’s judgments ...but Exxon Mobil shows that the Rooker Feldman doctrine asks what injury the plaintiff asks the federal court to redress, not whether the injury is “intertwined” with something else …Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-Feldman doctrine does not block this suit. It must be reinstated.” So, as I already noted to others, I now have the chance to bring my case to SCOTUS; the ruling by Wood & Posner is flawed on numerous levels,BUT most troubling is the fact that the authors KNOW it's a flawed ruling and choose to ignore the flaws for one simple reason: The courts have decided to agree with former AG Eric Holder that national banks "Are too big to fail" and must win at any cost-even that of due process, case precedent, & the truth....Let's see if SCOTUS wants a bite at the apple.

  4. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  5. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

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