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Joseph Mazzei, On Behalf of v. the Money Store

December 20, 2012


The opinion of the court was delivered by: John G. Koeltl, District Judge:


The plaintiff, Joseph Mazzei, brings this purported class action on behalf of himself and all others similarly situated against The Money Store, TMS Mortgage, Inc., and HomEq Servicing Corporation (collectively, "The Money Store defendants"). The plaintiff alleges breach of contract, violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1666d, TILA Regulation Z, 12 C.F.R. § 226.21, and California Business & Professional Code § 17200 et seq. (West 2011), in connection with the defendants' allegedly improper debt collection practices.*fn1 The plaintiff moves for class certification of a breach of contract class, a TILA class, and two California subclasses pursuant to Rule 23 of the Federal Rules of Civil Procedure.


The following facts are undisputed unless otherwise noted.


In 1994, the named plaintiff, Joseph Mazzei, took out a home mortgage loan from The Money Store on his home in Sacramento, California. Mazzei v. Money Store, No. 01 Civ. 5694, 2011 WL 4501311, at *2 (S.D.N.Y. Sept. 29, 2011). The loan was issued pursuant to Fannie Mae form loan documents, including a Note and Deed of Trust (collectively, the "form loan agreement").*fn2 (Grobman Decl. ¶¶ 3-5.)

In December 1999, Mazzei began to experience financial difficulties and fell behind on his loan. Mazzei, 2011 WL 4501311, at *2. He defaulted on several occasions. Id. In or about March 2000, pursuant to the Deed of Trust, The Money Store defendants accelerated Mazzei's loan obligations and declared the full amount of the debt immediately due and payable.

(Grobman Decl. Ex. MM at 189.) After Mazzei's loan was accelerated, he was charged several late fees, allegedly for his failure to make monthly payments. (Grobman Decl. Ex. E at 2881; Grobman Decl. Ex. MM at 189.) Mazzei filed for bankruptcy in July 2000. Mazzei, 2011 WL 4501311, at *2. In October 2000, Mazzei dismissed his bankruptcy petition and he alleges that he sold his home. (Dunnery Decl. Ex. K; Am. Compl. ¶ 33.) At that time, in an effort to satisfy his outstanding obligation to the defendants, Mazzei made a payment of $61,147.32. Mazzei, 2011 WL 4501311, at *2. That amount included payment for all attorneys' fees, late fees, and other expenses that the defendants allegedly had incurred as a consequence of Mazzei's defaults.*fn3 After the payment of $61,147.32, Mazzei contends that his loan was paid off in full, but the defendants claim that a small balance was left unpaid and was subsequently written off.*fn4


The Money Store defendants are mortgage lenders and servicers of mortgage loans. (Dunnery Decl. ¶ 1.) The defendants had outsourcing arrangements with a law firm, Moss, Codilis, Stawiarski, Morris, Schneider & Prior LLP ("Moss Codilis"), and a non-legal entity, Fidelity National Default Solutions ("Fidelity"), each of which are central to Mazzei's allegations that he was charged improper fees in connection with his default. (Dunnery Decl. ¶ 9.)

The Money Store defendants retained Moss Codilis to help manage collection efforts for loans that were in default. (Dunnery Decl. ¶ 9(a).) Moss Codilis, a law firm located in Colorado, sent breach letters to delinquent borrowers on loans serviced by the defendants (the "Breach Letter Program"). (Dunnery Decl. ¶ 9(a); Grobman Decl. ¶ 32.) From 1997 through 2000, Moss Codilis sent out 88,937 breach letters on behalf of the defendants. (Grobman Decl. Ex. Z. at 4.) Fees for these breach letters were charged to the borrowers' accounts pursuant to the form loan agreement provisions regarding attorneys' fees. (Dunnery Decl. ¶ 9(a).) On February 23, 2000, Moss Codilis sent a breach letter to Mazzei about his delinquent loan.*fn5 (Dunnery Decl. Ex. G.) On April 6, 2000, a fee of $35.00 for the breach letter was charged to Mazzei's account. (Dunnery Decl. ¶ 9(a); Grobman Decl. Ex. E at 2881; Grobman Decl. Ex. G at 3.)

The Money Store defendants also employed Fidelity to assist with bankruptcies and foreclosures. Fidelity, a non-legal entity, had a national network of hundreds of law firms to which it would refer cases from The Money Store defendants for representation in foreclosure and bankruptcy proceedings. (Dunnery Decl. ¶ 9(c).) As of July 2005, the defendants had referred over 46,000 loans to Fidelity for foreclosure and bankruptcy matters. (Grobman Decl. Ex. Q at 9.) Under the agreement between the defendants and Fidelity, the law firms sent their bills to Fidelity as an intermediary. (Dunnery Decl. ¶¶ 9(c), 9(c)(iii); Grobman Decl. Ex. N at 13.) Fidelity would then bill the defendants. (Dunnery Decl. ¶¶ 9(c), 9(c)(iii).) After receiving invoices from Fidelity, The Money Store defendants paid Fidelity, which then passed on these payments to the law firms. (Dunnery Decl. ¶¶ 9(c), 9(c)(iii).) The law firms paid Fidelity a "technology and referral fee," allegedly for a software system which helped the law firms handle the matters Fidelity referred to them. (Dunnery Decl. ¶¶ 9(c), 9(c)(iii).)*fn6 The "technology and referral fee" paid by the law firms was included in the amount that Fidelity calculated for the Fannie Mae allowable limits on legal fees for bankruptcy and foreclosure actions. (Grobman Decl. Ex. K at 417.) The fee charged by Fidelity as an "attorneys' fee" included the amount that was paid to the attorneys as well as a technology and referral fee. The defendants claim that their policy was to delay charging the borrowers' accounts for attorneys' fees until after the defendants had already sent payment to Fidelity for the legal services. (Dunnery Decl. ¶¶ 9(c)(i), 18(e).)

Under a part of the agreement between The Money Store defendants and Fidelity (the "Bonus/Penalty Agreement"), if an individual foreclosure or bankruptcy was completed before a set deadline, Fidelity would receive a bonus payment from The Money Store defendants. (Dunnery Decl. ¶ 9(c)(ii).) However, if Fidelity failed to meet the deadline for the completion of an individual bankruptcy or foreclosure, Fidelity had to pay the defendants a penalty. (Grobman Decl. Ex. A at 462-77; Grobman Decl. Ex. N at 19-21.) In instances where a penalty was assessed against Fidelity, the borrower was not paid back the portion of the funds that the defendants collected as a penalty. (Grobman Decl. Ex. A at 476-77.)


This action arises out of The Money Store defendants' alleged breaches of the form loan agreement. Mazzei purports to represent a class of individuals who were charged improper attorneys' fees and late fees in contravention of the form loan agreement. Specifically, the plaintiff asks the Court to certify one class consisting of:

All similarly situated borrowers who signed [form loan agreements] on loans which were owned or serviced by [the defendants] and who from March 1, 2000 to the present ("Class Period") were charged the following fees that were not permitted under the [form loan agreements]:

[1] attorneys' fees and expenses which [the Money Store defendants] never paid to [Fidelity] or their attorneys, including penalties paid back by Fidelity from attorneys' fees which were not credited to borrowers; and

[2] amounts paid to Fidelity, a non-lawyer entity, from attorneys' fees charged to borrowers;

[3] attorneys' fees improperly collected from borrowers for issuance of breach letters by [Moss Codilis]; and

[4] late fees after the borrower's loan was accelerated, and where the accelerated loan was paid off (or foreclosed on).

(Pl.'s Mem. Supp. Class Certif. 1.)*fn7

Subgroups [1], [2], and [3] rely on provisions of the form loan agreement regarding attorneys' fees. The form loan agreement requires that the borrower pay all reasonable attorneys' fees the defendants incur in connection with a borrower's default, bankruptcy, or foreclosure. Specifically, the Note provides that upon default, "the Note Holder will have the right to be paid back for all of its costs and expenses to the extent not prohibited by applicable law. These expenses include, for example, reasonable attorneys' fees . . . ." (Grobman Decl. Ex. B at ¶ 4(D) (emphasis added).) Similarly, the Deed of Trust allows for acceleration of the debt upon default and requires the borrower pay for reasonable attorneys' fees related to the default and acceleration:

7. Protection of Lender's Rights in the Property . . . If Borrower fails to perform the covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a proceeding in bankruptcy . . .), then Lender may do and pay for whatever is necessary to protect the value of the property and Lender's rights in the Property . . . Lender's actions may include . . . paying reasonable attorneys' fees . . . any amounts disbursed by Lender under this paragraph [] shall become additional debt of the Borrower secured by this Security Instrument . . .

19. Acceleration; Remedies . . . If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by applicable law. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 19, including, but not limited to, reasonable attorneys' fees and costs of title evidence. (Grobman Decl. Ex. C at ¶¶ 7, 19 (emphasis added).) Mazzei alleges that the defendants charged him and others several different types of improper "attorneys' fees."

Subgroup [4] focuses on a provision of the form loan agreement that allows the defendants to charge late fees for late monthly payments. Mazzei claims that he and other members of the class were improperly charged late fees after the defendants had already accelerated their loans ("Post-Acceleration Late Fees"). The Note provides that late fees may be charged if a monthly payment is late:

If the Note Holder has not received the full amount of any of my monthly payments by the end of 10 calendar days after the date it is due, I will promptly pay a late charge to the Note Holder.*fn8 (Grobman Decl. Ex. B at ¶ 4(A).) The Deed of Trust also provides that a borrower could have his or her loan reinstated despite a default and after acceleration by the lender, if the borrower, among other things, "pays Lender all sums which then would be due under this Security Instrument and the Note had no acceleration occurred . . . ." (Grobman Decl. Ex. C. at ¶ 18.) The defendants allege that this provision allowed the defendants to charge late fees after acceleration of a loan if the borrower reinstated that loan. (Dunnery Decl. ¶ 18(b) n.8.)

If the borrower did not reinstate the loan-that is, if the borrower paid off the loan or the loan was foreclosed on-the form loan agreement is silent with regard to whether the lender may charge late fees after the borrower has defaulted and the lender has accelerated the remaining debt. The defendants allege that it was their policy not to charge late fees after acceleration for loans in bankruptcy, (Dunnery Decl. Ex. N at 173), or for loans in which the underlying property was sold upon foreclosure (Dunnery Decl. Ex. N at 186-88). The defendants also claim that they had a policy of reviewing state laws regularly and only charging late fees after acceleration in those states where the form loan agreement had not been interpreted to prohibit such charges. (Dunnery Decl. ¶ 9(b); Dunnery Decl. Ex. N at 186-88.)

The form Deed of Trust also has a provision that requires the refund of any improper loan charges:

If the loan secured by this Security Instrument is subject to a law which sets maximum loan charges, and that law is finally interpreted so that the interest or other loan charges collected or to be collected in connection with the loan exceed the permitted limits, then . . . any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower. (Dunnery Decl. Ex. B at ¶ 12.) The plaintiff alleges that each of the improper fees must be returned because they are prohibited under the form loan agreement and/or exceed the permissible charges under the laws of all fifty states.


On June 22, 2001, the plaintiff filed his Complaint in this Court. On December 1, 2004, Judge Sprizzo granted summary judgment dismissing the plaintiff's claims under the Fair Debt Collection Practices Act but denied without prejudice the defendants' motion for summary judgment on the plaintiff's claims under TILA and the Real Estate Settlement Procedures Act. On April 25, 2008, Judge Sprizzo granted summary judgment on the plaintiff's claims under the Real Estate Settlement Procedures Act but again denied summary judgment without prejudice on the plaintiff's TILA claim. See Mazzei, 552 F. Supp. 2d at 413. On September 29, 2011, this Court denied the defendants' motion for summary judgment on the plaintiff's claim under TILA. Mazzei, 2011 WL 4501311, at *3.


Before certifying a class, the Court must determine that the party seeking certification has satisfied the four prerequisites of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. See Fed. R. Civ. P. 23(a); see, e.g., Teamsters Local 445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 202-03 (2d Cir. 2008); In re Initial Pub. Offerings Sec. Litig. ("In re IPO"), 471 F.3d 24, 32 (2d Cir. 2006). The Court must find, more specifically, that: "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). The Court must also find that the class qualifies under one of the three sets of criteria set forth in Rule 23(b). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997); Teamsters, 546 F.3d at 203; In re IPO, 471 F.3d at 32.

The plaintiff here seeks certification under Rule 23(b)(3), which provides for a class to be maintained where "the questions of law or fact common to the class members predominate over any questions affecting only individual members, and . . . a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). If the requirements of 23(a) have been met, and the claims fall within the scope of Rule 23(b)(3), a court may, in its discretion, certify the class. See In re IPO, 471 F.3d at 41 ("[A] district judge may certify a class only after making determinations that each of the Rule 23 requirements has been met.").

"Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). Plaintiffs seeking class certification bear the burden of demonstrating by a preponderance of the evidence that the proposed class meets each of the requirements for class certification set forth in Federal Rule of Civil Procedure 23. Teamsters, 546 F.3d at 202. When assessing whether plaintiffs have met this burden, courts must take into account "all of the relevant evidence admitted at the class certification stage." In re IPO, 471 F.3d at 42. A court may certify a class only after determining that "whatever underlying facts are relevant to a particular Rule 23 requirement have been ...

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