Montano et al v. First Light Federal Credit Union

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re:
RALPH MONTANO and
ELSIE M. MONTANO,
Case No. 7-04-17866-TL
Debtors.
RALPH MONTANO and
ELSIE M. MONTANO, et al.,
Plaintiffs,
v. 	Adv. No. 07-1026
FIRST LIGHT FEDERAL CREDIT UNION,
Defendant.
MEMORANDUM OPINION
I. 	INTRODUCTION
Plaintiffs allege in this class action that Defendant violated the discharge injunction1
granted in about 1600 New Mexico bankruptcy cases by failing to update credit reports to reflect
bankruptcy discharges, instead continuing to report the debts as past due. 	Plaintiffs seek
declaratory and injunctive relief (Class 1) and compensatory and punitive damages (Class 2).
The classes were certified in October, 2008.2 Defendant has now moved to decertify the
classes.3 Pursuant to Rule 23(c)(1)(C),4 it is appropriate to revisit the class certification issue.
1 11 U.S.C. § 524(a)(2).
2 Order Certifying Class, entered October 15, 2008, doc. 40 (the “Certification Order”).
3 Motion to Decertify Class Actions, filed December 21, 2012, doc. 161 (the “Motion”). 	Plaintiffs
responded January 21, 2013, doc. 162 (the “Response”). Defendant replied February 4, 2013, doc. 163
(the “Reply”).
4 Citations to a “Rule” are to Federal Rule of Civil Procedure 23, made applicable in this adversary
proceeding by Bankruptcy Rule 7023.
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 1 of 25

-2-
Because of the changes in the law in the last four years and the evidence before the Court
developed after certification, the Court concludes both classes should be decertified.
II. 	RELEVANT FACTS
Plaintiffs have established these facts for class certification purposes:5
1. 	Plaintiffs filed this adversary proceeding February 19, 2007, and filed their First
Amended Class Action Complaint on October 1, 2007, doc. 19 (the “Amended Complaint”).
2. 	On October 15, 2008, the Court6 certified the following classes:
Class 1 shall consist of the Rule 23(b)(2) class that seeks injunctive and
declaratory relief. It shall consist of all persons that, since January 1, 1997, have
received a discharge under Title 11 of the United States Bankruptcy Code from
the United States Bankruptcy Court for the District of New Mexico, that
scheduled First Light Federal Credit Union or Fort Bliss Federal Credit Union (its
predecessor) as a creditor on his or her bankruptcy schedules or who, in fact,
owed a debt to either First Light Federal Credit Union or Fort Bliss Federal Credit
Union on the date they filed their bankruptcy petition, whether they listed First
Light Federal Credit Union or Fort Bliss Federal Credit Union on their bankruptcy
schedules or not.
Class 2 shall consist of the Rule 23(b)(3) class that seeks actual and/or punitive
damages in addition to the relief sought by Class 1. It shall consist of all persons
that, since January 1, 1997, have received a discharge under Title 11 of the United
States Bankruptcy Code from the United States Bankruptcy Court for the District
of New Mexico, that scheduled First Light Federal Credit Union or Fort Bliss
Federal Credit Union (its predecessor) as a creditor on his or her bankruptcy
schedules or who, in fact, owed a debt to either First Light Federal Credit Union
or Fort Bliss Federal Credit Union on the date they filed their bankruptcy petition,
whether they listed First Light Federal Credit Union or Fort Bliss Federal Credit
Union on their bankruptcy schedules or not, and, who claims he or she was
damaged by an alleged incorrect reporting to the national credit reporting
agencies of the status of their debt or was induced by either credit union to repay a
dischargeable or discharged debt in exchange for correction of the credit reporting
information.
Certification Order, pp. 2-3.
5 Given the burden placed on Plaintiffs to show that the class action requirements have been met
(discussed in Section IV below), the Court is not required to resolve factual disputes in Plaintiffs’ favor,
but must instead weigh the evidence and determine whether Plaintiffs have carried their burden.
6 Hon. James S. Starzynski, now retired.
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 2 of 25

-3-
3. 	The class claims are based solely on Defendant’s alleged improprieties in post-
discharge credit reporting. Amended Complaint, ¶¶ 39(b), 40, 49-55.
4. 	The Class 1 members seek a declaratory judgment that Defendant’s conduct
violated their discharge injunction, and seek to enjoin further violations.
5. 	The Class 2 members seek compensatory and punitive damages.
6. 	Class 1 has about 1,600 members.7
7. 	The size and make-up of Class 2 is unknown.8 Plaintiffs were required to identify
the members of Class 2 by July 31, 2009. See Stipulated Order Regarding Means and Timetable
to Provide Adequate Notice to Classes, p. 3, entered March 26, 2009, doc. 57. 	No such
identification has ever been made.
8. 	As much as 80% of the time, Defendant did not update its reporting to credit
reporting agencies to indicate that a Member’s debt to Defendant had been discharged in
bankruptcy, and continued to report the discharged debt as past due.9
9. 	Plaintiffs’ concerns about Defendant’s credit reporting practices were brought to
Defendant’s attention in 2003 or 2004, but Defendant did not change its policies until after
Plaintiffs brought this adversary proceeding.10
The following facts presented by Defendant are relevant to the Motion and are not
substantially disputed by Plaintiffs:
7 Response, p. 10. A member of either class is referred to as a “Member.”
8 To be a member of Class 2, one must qualify as a Class 1 member and also claim to have been damaged
by Defendant’s credit reporting practices, or claim to have been induced to pay a discharged debt in
exchange for Defendant’s agreement to correct the credit reporting. 	Certification Order, pp. 2-3
(emphasis added).
9 See Response, p. 3; Defendant’s Memorandum in Support of Motion for Summary Judgment, filed
October 1, 2010, doc. 104, p. 13, alleged fact 35.
10 Response, p. 3.
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 3 of 25

-4-
10. 	For bankruptcy cases filed after January 1, 2005, only four Members paid
Defendant a portion of their discharged, unreaffirmed debts. 11
11. 	There is no evidence about Member payments of discharged debts for bankruptcy
cases filed between January 1, 1997 and January 1, 2005, because Defendant’s records for that
period are not stored on computer. Defendant estimates it would cost about $25,000 to $30,000
to review the pre-2005 “hard copy” files.12 To date, neither party has spent the money necessary
to conduce the review.
12. 	Defendant suggested that another way for Plaintiffs to determine how many
Members paid discharged, un-reaffirmed debts for bankruptcy cases filed before January 1, 2005
would be for Plaintiffs to send a questionnaire to the Members.13 Plaintiffs did not do so.14
A disputed fact is how Defendant responded when Members asked Defendant to change
its credit reporting to include their bankruptcy discharge. 	Plaintiffs contend Defendant would
not amend its report when asked to do so. 	Response, p. 3. 	Defendant disagrees, and cites “an
abundance of evidence in the record that shows that [Defendant] did not refuse to update credit
reports.” Reply, p. 4. The Court treats this issue as disputed and unresolved.
III. 	CLASS CERTIFICATION/DECERTIFICATION IS WITHIN THE DISCRETION OF
THE TRIAL COURT
Class certification issues, including those relating to adequacy of class representation, are
11 Defendant’s Omnibus Brief in Response to Plaintiffs’ Motion for Leave to File Second Amended
Complaint, and in Reply to Plaintiffs’ Response to Motion for Entry of Order Regarding Defendant’s
Objection to Discovery Request and Motion for Protective Order, filed March 3, 2011, doc. 122 (the
“Omnibus Brief”), p. 4; Motion, pp. 1 and 6; Response, p. 11. There were a total of 42 Members who
paid post-discharge debts to Defendant, but 38 of them owed either secured or reaffirmed debts. Omnibus
Brief, p. 4 and Ex. B.
12 Response, p. 11.
13 Omnibus Brief, p. 7.
14 The suggested inquiry is relevant to whether Defendant violated the discharge injunction, but would not
help identifying the members of Class 2, since payment alone is not enough for membership. Rather, the
debtor must claim that the payment was induced by Defendant’s promise to change its credit reporting.
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 4 of 25

-5-
within the province of the trial court. 	Rector v. City and County of Denver, 348 F.3d 935, 949
(10th Cir. 2003), citing J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1287 (10 th Cir. 1999).
Trial courts are permitted to re-examine class certification at any time. Rule 23(c)(1)(C).
See also Rector v. Denver, 348 F.3d at 949 (remanding to district court after sua sponte de-
certifying the class based on lack of class representatives’ standing); Barnes v. Am. Tobacco, 161
F.3d 127, 140 (3d Cir. 1998) (“district courts are required to reassess their class rulings as the
case develops”); Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir. 1983) (“Under Rule 23 the
district court is charged with the duty of monitoring its class decisions in light of the evidentiary
development of the case. 	The district judge must define, redefine, subclass, and decertify as
appropriate in response to the progression of the case from assertion to facts”).
“In considering the appropriateness of decertification, the standard of review is the same
as a motion for class certification: whether the Rule 23 requirements are met.” 	Mendez v. The
Radec Corp., 260 F.R.D. 38, 43 (W.D.N.Y. 2009), citing Marlo v. United Parcel Service, Inc.,
251 F.R.D. 476, 479 (C.D. Cal. 2008).
A class must be decertified if the reasons for granting certification “no longer exist or
never existed.” Monaco v. Stone, 187 F.R.D. 50, 59 (E.D.N.Y. 1999).
In In re Motor Fuel Temperature Sales Practices Litigation, 279 F.R.D. 598, 601 (D.
Kan. 2012), the district court stated:
Prior to final judgment, the Court has discretion under Rule 23(c)(1)(C) to
decertify the class altogether, or to alter or 	amend its certification order.
Fed.R.Civ.P. 23(c)(1)(C); DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1201
(10th Cir. 2010). 	Indeed, a class certification order is “inherently tentative,”
particularly before notice is sent to potential class members. Gen. Tel. Co. of Sw.
v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L.Ed.2d 740 (1982). 	To
determine 	whether 	decertification 	or 	other 	alteration 	or 	amendment 	of 	its
certification 	order 	is 	appropriate, 	the 	Court 	applies 	the 	rubric 	for 	class
certification in Rule 23.
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 5 of 25

-6-
279 F.R.D. at 601. 	Thus, whether or not Class 1 and/or Class 2 were properly certified in
October, 2008 (and such certification could may well have been appropriate), the Court has the
obligation to revisit class certification if necessary.
Here, it is appropriate to revisit class certification for three reasons. 	First, the law on
class actions has changed since October, 2008.15 Second, the Tenth Circuit law on the “objective
standard” for determining whether certain actions violate the discharge injunction has developed
since class certification.16 Third, the parties have conducted substantial post-certification
discovery, and the Court now has the benefit of some of the discovery.17 Because of the major
changes in the law and the available evidence, it is reasonable to review class certification.
IV. 	IN REVIEWING CLASS CERTIFICATION, THE COURT IS REQUIRED TO
“PROBE BEHIND THE PLEADINGS”
When ruling on the propriety of class certification, the trial court is required do more than
accept plaintiffs’ allegations. The discussion of this issue in Wal-Mart, 131 S. Ct. at 2551-52, is
instructive:
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. We recognized in Falcon that
“sometimes it may be necessary for the court to probe behind the pleadings before
coming to rest on the certification question,” 457 U.S., at 160, 102 S. Ct. 2364,
and that certification is proper only if “the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23(a) have been satisfied,” id., at 161, 102
S. 	Ct. 	2364; 	see 	id., 	at 	160, 	102 	S. 	Ct. 	2364 	(“[A]ctual, 	not 	presumed,
conformance 	with 	Rule 	23(a) 	remains 	... 	indispensable”). 	Frequently 	that
“rigorous analysis” will entail some overlap with the merits of the plaintiff's
15 In particular, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) was decided in June, 2011.
16 All briefing on the class certification issue had been completed before Paul v. Inglehart (In re Paul),
534 F.3d 1303 (10th Cir. 2008) was decided. The Paul decision is not cited in any of the briefing, nor in
Judge Starzynski’s memorandum opinion on class certification.
17 All of the depositions submitted by the parties in this case were taken after class certification. 	It
appears from the docket that all written discovery took place after class certification.
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 6 of 25

-7-
underlying claim. That cannot be helped.” ‘[T]he class determination generally
involves 	considerations 	that 	are 	enmeshed 	in 	the 	factual 	and 	legal 	issues
comprising the plaintiff's cause of action.’ ” Falcon, supra, at 160, 102 S. Ct.
2364 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S. Ct. 2454,
57 L. Ed. 2d 351 (1978); some internal quotation marks omitted) [footnote
omitted]. Nor is there anything unusual about that consequence: The necessity of
touching aspects of the merits in order to resolve preliminary matters, e.g.,
jurisdiction and venue, is a familiar feature of litigation. See Szabo v. Bridgport
Machines, Inc., 249 F.3d 672, 676-677 (C.A.7 2001) (Easterbrook, J.).
See also Tabor v. Hilti, Inc., 703 F.3d 1206, 1227 (10 th Cir. 2013) (quoting Gen. Tel. Co. of
Southwest v Falcon, 457 U.S. 147 (1982), the Tenth Circuit held that the trial court is “not
limited to the pleadings but may ‘probe behind the pleadings’ and examine the facts and
evidence in the case”).
The party seeking class certification “must affirmatively demonstrate his compliance with
[Rule 23],” Wal-Mart, 131 S. Ct. 2541, and bears a “strict burden of proof” that “all of the
requirements of [Rule] 23(a) are clearly met.” 	Tabor v. Hilti, 703 F.3d at 1228, quoting Rex v.
Owens ex rel. State of Okla., 585 F.2d 432, 435 (10 th Cir. 1978).
In Epps v. JPMorgan Chase Bank N.A., 2012 WL 5250538, at *7 (D. Md. 2012), the
district court stated:
In the wake of the Supreme Court's opinion in Wal–Mart Stores, Inc. v. Dukes, __
U.S. __, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011) parties seeking class
certification face a heavy burden. Specifically, the party “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.” Id. at 2551 (emphasis in original).
See also Soutter v. Equifax Information Services, LLC, 2012 WL 5992207, at *5 (4th Cir.
2012) (Wal-Mart requires a “rigorous analysis” before certifying a class action); M.D. ex rel.
Stukenberg v. Perry, 675 F.3d 832, 837 (5th Cir. 2012) (citing Wal-Mart, the Fifth Circuit stated
that the “Named Plaintiffs, as the parties seeking certification, bear the burden of proof to
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 7 of 25

-8-
establish that the proposed class satisfies the requirements of Rule 23”); Midland Pizza, LLC v.
Southwestern Bell Telephone Co., 277 F.R.D. 637, 639 (D. Kan. 2011) (citing Shook v. El Paso
County, 386 F.3d 963, 968 (10 th Cir. 2004), the court stated that it must conduct a “rigorous
analysis,” and that plaintiff bears the burden of proof).
In conducting the review, the Court must keep in mind that the class action is “an
exception to the usual rule that litigation is conducted by and on behalf of the individual named
parties only.” Wal-Mart, 131 S. Ct. at 2550, citing Califano v. Yamasaki, 442 U.S. 682, 700-01
(1979).
The Court gave the parties an opportunity to supplement the evidence in support of their
positions. See Order Denying Plaintiffs’ Motion to Reconsider Protective Order, entered March
7, 2013, doc. 167, p. 8. Neither party elected to do so.
V. 	RULE 23(a) REQUIREMENTS
A class may be certified only if all of the following Rule 23(a) requirements are met: (1)
“numerosity;” (2) “commonality;” (3) “typicality;” and (4) “adequacy of representation.”
Treviso v. Adams, 455 F.3d 1155, 1161-62 (10th Cir. 2006). 	The class must also be properly
defined. Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977).
A. 	Class Definition. 	As a prerequisite to class certification, the class must be
adequately defined. See Rochford, 565 F.2d at 977 (7th Cir. 1977) (recognizing a “definiteness”
requirement implied by Rule 23(a)). 	There can be no class action if the proposed class is
“amorphous” or “imprecise.” 5 James W. Moore et al., Moore’s Federal Practice § 23.21[1], at
23-47 (Matthew Bender 3d ed. 1997). See also Owner Operator Independent Drivers Ass’n, Inc.
v. Arctic Express, Inc., 2001 WL 34366624, at *5 (S.D. Ohio 2001) (“Where named plaintiffs
fail to define the class adequately, the court need not proceed to a full analysis under Rule 23”);
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 8 of 25

-9-
Metcalf v. Edelman, 64 F.R.D. 407, 409 (N.D. Ill. 1974) (“the inability to define concisely a
proper class to bring this action precludes plaintiff from fulfilling all the requirements of Rule
23”); Givens v. Van Devere, Inc., 2012 WL 4092803, at *16 (N.D. Ohio 2012) (magistrate court
recommends denial of class certification because, inter alia, class definition is inadequate).
A proper definition includes the requirement that the class not include members who
have no claim against the defendant. 	See Oshana v. Coca-Cola Bottling Co., 225 F.R.D. 575,
580 (N.D. Ill. 2005), affirmed, 472 F.3d 506 (7th Cir. 2006), citing Guillory v. American Tobacco
Co., 2001 WL 290603 (N.D. Ill. 2001) (“the description must not be so broad as to include
individuals who are without standing to maintain the action on their own behalf”).
B. 	Numerosity (Rule 23(a)(1)). 	Discussing the numerosity requirement, the Tenth
Circuit stated:
In order to meet this element, “[t]he burden is upon plaintiffs seeking to represent
a 	class 	to 	establish 	that 	the 	class 	is 	so 	numerous 	as 	to 	make 	joinder
impracticable.” Peterson v. Okla. City Housing Auth., 545 F.2d 1270, 1273 (10th
Cir. 1976). 	Here, the district court concluded that, although the number of
putative class members-eighty-four-was not insignificant, it was not such an
overwhelmingly large number as to be prohibitive of joinder. Nor was there any
problem locating the remaining individuals for joinder since all the names and
addresses of potential plaintiffs had been provided during discovery.
The plaintiffs argue that the district court should have followed cases from other
jurisdictions which hold numerosity may be presumed at a certain number. See
Consol. Rail Corp. v. Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (presuming
numerosity at forty members); see also Polich v. Burlington Northern, Inc., 116
F.R.D. 258, 261 (D. Mont. 1987) (finding sixty potential members sufficient to
support a presumption that joinder was not practicable). Our circuit has never
adopted such a presumption. To the contrary, we have specifically stated there is
“no set formula to determine if the class is so numerous that it should be so
certified.” Rex v. Owens ex rel. State of Okla., 585 F.2d 432, 436 (10th Cir. 1978).
Indeed, because it is such a fact-specific inquiry, we grant wide latitude to the
district court in making this determination. Johnson by Johnson v. Thompson, 971
F.2d 1487, 1498 (10th Cir. 1992). Here, the district court carefully reviewed the
record and made an appropriate judgment call. We therefore find no abuse of
discretion.
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 9 of 25

-10-
Treviso v. Adams, 455 F.3d at 1162. See also Roberts v. Target Corp., 2012 WL 2357420, at *3
(W.D. Okla. 2012) (“While plaintiff does not need to allege numerosity with mathematical
precision, she does need to allege some facts that support the claim”) (emphasis in original).
C. 	Commonality (Rule 23(a)(2)). 	Wal-Mart sets the standard for determining
whether a proposed class satisfies the “commonality” requirement of Rule 23(a)(2):
Commonality requires the plaintiff to demonstrate that the class members “have
suffered the same injury,” Falcon, supra, at 157, 102 S. Ct. 2364. This does not
mean merely that they have all suffered a violation of the same provision of law.
Title 	VII, 	for 	example, 	can 	be 	violated 	in 	many 	ways—by 	intentional
discrimination, or by hiring and promotion criteria that result in disparate impact,
and by the use of these practices on the part of many different superiors in a single
company. 	Quite obviously, the mere claim by employees of the same company
that they have suffered a Title VII injury, or even a disparate-impact Title VII
injury, gives no cause to believe that all their claims can productively be litigated
at once. Their claims must depend upon a common contention—for example, the
assertion of discriminatory bias on the part of the same supervisor. That common
contention, moreover, must be of such a nature that it is capable of classwide
resolution—which means that determination of its truth or falsity will resolve an
issue that is central to the validity of each one of the claims in one stroke.
“What matters to class certification ... is not the raising of common ‘questions'—
even in droves—but, rather the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the litigation. Dissimilarities
within the proposed class are what have the potential to impede the generation of
common answers.” Nagareda, supra, at 132.
131 S. Ct. at 2551. See also Stukenberg v. Perry, 675 F.3d at 839 (reversing class certification
ruling, the Fifth Circuit held that, while the district court’s Rule 23(a)(2) commonality “analysis
may have been a reasonable application of pre– Wal–Mart precedent, the Wal–Mart decision has
heightened the standards for establishing commonality under Rule 23(a)(2), rendering the district
court's analysis insufficient”); Luiken v. Domino’s Pizza, LLC, 2013 WL 399248, at *5 (8th Cir.
2013) (reversing class certification ruling, the Eighth Circuit held that, in light of Wal-Mart, the
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 10 of 25

-11-
district court erred in finding that the claims were capable of class-wide resolution by ruling on a
common contention).
D. 	Typicality (Rule 23(a)(3)). Rule 23(a)(3) requires that “the claims or defenses of
the representative parties are typical of the claims or defenses of the class.” 	The recent Fourth
Circuit case of Soutter v. Equifax Information Servs., LLC, 2012 WL 5992207, at *4 (4th Cir.
2012), analyzes the “typicality” requirement:
Typicality “goes to the heart of a representative['s] ability to represent a class.”
Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006). 	Thus, Soutter's
“interest in prosecuting [her] own case must simultaneously tend to advance the
interests of the absent class members.” 	Id. 	Typicality “tend[s] to merge” with
commonality, insofar as both “serve as guideposts for determining whether under
the particular circumstances maintenance of a class action is economical and
whether the named plaintiff's claim and the class claims are so interrelated that the
interests of the class members will be fairly and adequately protected in their
absence.” 	General Tele. Co. of Southwest v. Falcon, 457 U.S. 147, 158 n. 13
(1982). 	Thus, “[t]he essence of the typicality requirement is captured by the
notion that ‘as goes the claim of the named plaintiff, so go the claims of the
class.’” Deiter, 436 F.3d at 466 (quoting Broussard v. Meineke Discount Muffler
Shops, Inc., 155 F.3d 331, 340 (4th Cir. 1998)). 	While Soutter's claim need not
be “perfectly identical” to the claims of the class she seeks to represent, typicality
is lacking where “the variation in claims strikes at the heart of the respective
causes of action.” Id. at 467.
2012 WL 5992207, *4. See also Sprague v. General Motors Corp., 133 F.3d 388, 398 (6 th Cir.
1998) (“the premise of the typicality requirement is simply stated: as goes the claim of the named
plaintiff, so go the claims of the class”).
E. 	Adequacy of Representation (Rule 23(a)(4)). Rule 23(a)(4) requires that the class
representatives “fairly and adequately protect the interests of the class.” 	As stated in Colorado
Cross-Disability Coalition v. Abercrombie & Fitch Co., 2012 WL 1378531, at *5 (D. Colo.
2012):
The Tenth Circuit has held that adequacy of representation depends on resolution
of two questions. Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188
(10th Cir. 2002). 	These questions are: “‘(1) do the named plaintiffs and their
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 11 of 25

-12-
counsel have any conflicts of interest with other class members and (2) will the
named plaintiffs and their counsel prosecute the action vigorously on behalf of the
class?’” Id. at 1187–88 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020
(9th Cir. 1998)).
VI. 	RULE 23(b) REQUIREMENTS
If the trial court concludes that the requirements of Rule 23(a) are satisfied, the court may
certify a class only if it also finds the movant has satisfied the conditions of Rule 23(b) (1), (2),
or (3). Vallario v. Vandehey, 554 F.3d 1259, 1267 (10th Cir. 2009), citing Amchem Prods., Inc.
v. Windsor, 521 U.S. 591, 614 (1997).
A. 	Risk of Inconsistent Rulings/Claim Preclusion (Rule 23(b)(1)). 	Plaintiffs have
never sought class certification under Rule 23(b)(1), so no discussion of this subsection is
needed.
B. 	Injunctive Relief (Rule 23(b)(2)). Class 1 is certified under Rule 23(b)(2). Wal-
Mart makes clear that the relief available in a Rule 23(b)(2) class action is limited to injunctive
and declaratory relief; monetary damages cannot be recovered unless incidental thereto. 	Wal-
Mart, 131 S. Ct. at 2557:
Our opinion in Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121, 114 S. Ct. 1359,
128 L.Ed.2d 33 (1994) (per curiam) expressed serious doubt about whether
claims for monetary relief may be certified under [Rule 23(b)(2)]. We now hold
that they may not, at least where (as here) the monetary relief is not incidental to
the injunctive or declaratory relief.
C. 	Money Damages (Rule 23(b)(3)). Class 2 is certified under Rule 23(b)(3).
To qualify for class certification under rule 23(b)(3), a class must satisfy the
following two conditions in addition to the Rule 23(a) prerequisites: (1) common
questions 	must 	“predominate 	over 	any 	questions 	affecting 	only 	individual
members;” and (2) class resolution must be “superior to other available methods
for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3).
Coleman v. ReconTrust Co., N.A., 2012 WL 1302567, at *5 (D. Utah 2012). “The predominance
criterion 	of 	Rule 	23(b)(3) 	is 	‘far 	more 	demanding’ 	than 	the 	Rule 	23(a) 	commonality
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 12 of 25

-13-
requirement.” 	In re Bank of America Wage and Hour Employment Litigation, __ F.R.D. ___,
2012 WL 4463285, at *4 (D. Kan. 2012), quoting Amchem Prods., Inc. v. Windsor, 	521 U.S.
591, 623-24 (1997).
The 	predominance 	inquiry 	tests 	“whether 	proposed 	classes 	are 	sufficiently
cohesive to warrant adjudication by representation.” Id. at 623, 117 S. Ct. 2231.
Generally, the predominance requirement is satisfied “if resolution of some of the
legal 	or 	factual 	questions 	that 	qualify 	each 	member's 	case 	as 	a 	genuine
controversy can be achieved through generalized proof, and if these particular
issues are more substantial than the issue subject only to individualized proof.” In
re American Int'l Group, Inc. Sec. Lit., 689 F.3d 229, 240 (2d Cir. 2012). Rule
23(b)(3) 	requires 	the 	judge 	to 	“make 	findings 	about 	predominance 	and
superiority” before allowing the class. Wal-Mart, 131 S. Ct. at 2559.
Id.
Common questions may not predominate if individualized proof of injury is required.
See Midland Pizza, LLC v. Southwestern Bell Telephone Co., 277 F.R.D. at 641-42 (class
certification not appropriate because, inter alia, no common proof is possible to demonstrate
injury for all class members, so individualized damage proof issues predominate over common
issues); Stern v. Cingular Wireless Corp., 2009 WL 481657, at *5 (C.D. Cal. 2009) (to the same
effect); Brown v. SBC Comm’ns, Inc., 2009 WL 260770, at *3 (S.D. Ill. 2009) (same). See also
DWFII Corp. v. State Farm Mut. Auto. Ins. Co., 469 Fed. Appx. 762, 765 (11 th Cir. 2012),
quoting Klay v. Humana, 382 F.3d 1241, 1255 (11 th Cir. 2004) (class certification not
appropriate if class members must “introduce a great deal of individualized proof or argue a
number of individualized legal points to establish most of all of the elements of their individual
claims”).
VII. 	CURRENT LAW ON § 524(a)(2) AND CREDIT REPORTING
A. 	The Tenth Circuit’s “Objective Standard” For Facially Permissible Activities That
Might Nevertheless Violate the Discharge Injunction. 	Section 524(a)(2) provides that a
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 13 of 25

-14-
bankruptcy discharge:
operates as an injunction against the commencement or continuation of an action,
the employment of process, or an act, to collect, recover or offset any such debt as
a personal liability of the debtor, whether or not discharge of such debt is waived.
The “such debt” is a reference to the language in § 524(a)(1) about “any debt discharged under
section 727, 944, 1141, 1228, or 1328 of this title . . . .”
Certain actions are facially impermissible and are plainly prohibited by § 524(a)(2),
including dunning letters, collection calls, and collection actions. 	Further, in the Tenth Circuit
some actions that are “facially permissible” can nevertheless violate the discharge injunction if
the effect of the actions is to coerce payment of discharged debts. In such cases, the test whether
the action violates the discharge injunction is set out in In re Paul, 534 F.3d at 1308:
The inquiry is objective; the question is whether the creditor's conduct had the
practical, concrete effect of coercing payment of a discharged debt, and bad faith
is not required. In re Pratt, 462 F.3d at 19; In re Schlichtmann, 375 B.R. at 95.
By the same token, the presence of some other procedural impropriety or error in
connection with the creditor's action will not give rise to a violation of the
discharge injunction if the objective effect is not to coerce payment of a
discharged debt.
See also Mahoney v. Washington Mutual (In re Mahoney), 368 B.R. 579, 589 (Bankr. W.D. Tex.
2007) (articulating his version of the “objective” standard, Judge Leif Clark held that “for any act
to count as an act that violates the discharge, there must be evidence of an effective connection
between the conduct of the creditor and the collection of the debt.”).
In Paul, the Tenth Circuit reversed the bankruptcy court’s imposition of sanctions against
creditor Tammy Inglehart, imposed for alleged violations of the discharge injunction. 	Ms.
Inglehart had sought discovery from the debtors in a state court action against a corporation
debtors were associated with. 	The discovery was sought after the debtors filed bankruptcy and
obtained a discharge, and the debtors claimed that the discovery requests violated the discharge
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 14 of 25

-15-
injunction. 	The bankruptcy court agreed, and sanctioned Ms. Inglehart. 	The district court
affirmed. 	The Tenth Circuit reversed, holding that pursuing discovery in support of claims
against non-debtor parties was legitimate on its face, and could be considered a violation of the
discharge injunction only if there was evidence that the objective effect of the discovery was to
coerce payment of a discharged debt. 534 F.3d at 1309. The Tenth Circuit held:
In sum, Ms. Iglehart pursued discovery from the Pauls relating to claims that did
not concern their pre-petition liabilities. As such, her conduct did not violate any
prohibition in § 524(a)(2). 	Clearly it imposed incidental burdens, as discovery
does on anyone. 	But, notwithstanding the “fresh start” gloss on the statute,
discharged debtors are not broadly free from any inconvenience and expense that
otherwise permissible litigation may impose on them. 	Their special protection
has been delimited by Congress in § 524(a)(2), and a creditor cannot be
sanctioned for conduct that does not fall within its terms. Of course, conduct that
facially appears permissible may still violate § 524(a)(2) if its objective effect is
prohibited, i.e., if it really serves to pressure the debtor to pay a discharged debt.
The bankruptcy court made no such finding here; indeed, the record would not
have supported such a finding.
534 F.3d at 1312-13 (emphasis added). 	See also In re Williams, 438 B.R. 679, 694 (10 th Cir.
BAP 2010) (citing and following Paul); Ammons v. Eddy Federal Credit Union (In re Ammons),
2012 WL 1252621, *8 (Bankr. D.N.M. 2012) (citing Paul). See generally In re Pratt, 462 F.3d
14, 19 (1st Cir. 2006) (refusal to either repossess collateral or release lien was “objectively
coercive” and violated discharge injunction); Parraway v. Andrews Univ. (In re Parraway), 50
B.R. 316, 319 (W.D. Mich. 1984) (university’s policy of withholding transcripts until students
paid their debts violated discharge injunction).
B. 	Credit Reporting and the Discharge Injunction. 	Many cases have held that a
creditor’s failure to update reported information to reflect a bankruptcy discharge by itself is not
an “act” within the meaning of § 524(a)(2),18 and therefore does not violate the discharge
18 § 524(a)(2) states that the discharge “operates as an injunction against the commencement or
continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt
as a personal liability of the debtor, whether or not discharge of such debt is waived.”
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 15 of 25

-16-
injunction. 	See In re Vogt, 257 B.R. 65, 70 (Bankr. D. Colo. 2000); In re Irby, 337 B.R. 293,
295 (Bankr. N.D. Ohio 2005); In re Small, 2011 WL 1868839, at *8 (Bankr. E.D. Ky. 2011); In
re Mahoney, 368 B.R. at 584; Davis v. Farm Bureau Bank, FSB, 2008 WL 1924247, at *2 (W.D.
Tex. 2008); In re Miller, 2003 WL 25273851, at *2 (Bankr. D. Id. 2003); In re Mogg, 2007 WL
2608501, at *4 (Bankr. S.D. Ill. 2007); In re Bruno, 356 B.R. 89, 92 (Bankr. W.D.N.Y. 2006).
Most of these cases also point out that continued reporting of a discharged debt as “due”
is accurate, since the discharge injunction does not eradicate the debt, but only prevents the
creditor from collecting it. See, e.g., In re Vogt, 257 B.R. at 70 (discharge does not wipe away
the debt, it only serves to eliminate the debtor’s personal responsibility to pay the debt); In re
Irby, 337 B.R. at 295 (upon discharge, it is only a debtor’s personal obligation to pay the debt
that is effectively extinguished; the debt itself remains); In re Mahoney, 368 B.R. at 584
(bankruptcy does not erase debt; the discharge is only an injunction against attempts to collect
the debt as a personal liability of the debtor).
Other courts have held that the failure to update credit information, if willful, could
violate the discharge injunction. See e.g. In re McKenzie-Gilyard, 388 B.R. 474, 481-82 (Bankr.
E.D.N.Y. 2007); In re Torres, 367 B.R. 478, 490 (Bankr. S.D.N.Y. 2007). 	These cases use a
“subjective” standard for determining whether a facially permissible activity (credit reporting)
violated the discharge injunction. 	The Tenth Circuit chose the objective standard instead, and
looks at the results of a creditor’s activity, rather than the creditor’s intent or state of mind.
The Court finds that credit reporting of the sort complained of in this adversary
proceeding, if it qualifies as an “act,” is facially permissible and does not constitute a per se
violation of § 524(a)(2). Under Paul, the credit reporting nevertheless could be found to violate
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 16 of 25

-17-
the discharge injunction “if its objective effect is prohibited, i.e., if it really serves to pressure the
debtor to pay a discharged debt.” 534 F.3d at 1313.
C. 	Damages. 	As noted in a prior decision, Plaintiffs do not have a private right of
action arising from Defendant’s alleged violation of the discharge injunction. 	Memorandum
Opinion, entered November 2, 2012, doc 151, p. 4. 	Instead, Plaintiffs’ remedy is an order
finding Defendant in contempt of court for violating the injunction. Id.
In their Amended Complaint, Plaintiffs seek a contempt order and ask for actual damages
as a result of the contumacious conduct. Amended Complaint, p. 14. There is no question that
the Court has the ability to grant such relief as part of its power to enter civil contempt orders.
See Cox v. Zale Delaware, Inc., 239 F.3d 910, 916-17 (7 th Cir. 2001); Paul, 534 F.3d at 1306; In
re Ammons, 2012 WL 1252621, at *7. See generally Law v. National Collegiate Athletic Assoc.,
134 F.3d 1438, 1442 (10th Cir. 1998). Civil contempt “is a sanction to enforce compliance with
an order of the court or to compensate for losses or damages sustained by reason of
noncompliance.” 	Law, 134 F.3d at 1442, citing McComb v. Jacksonville Paper Co., 336 U.S.
187 (1949).
It is less clear whether this Court has the authority to award punitive damages for a
willful violation of the discharge injunction. 	See e.g. Cox v. Zale, 239 F.3d at 916-17
(questioning the bankruptcy court’s criminal contempt powers). 	The Court need not decide the
issue.
Plaintiffs’ request for actual damages requires proof of actual injury. Ammons, 2012 WL
1252621, at *7; see also In re Martin, 474 B.R. 789, at *5 (6th Cir. BAP 2012) (debtor cannot
rely on undue conjecture or speculation, but instead must support its claim of actual injury with
adequate proof); In re Hart, 246 B.R. 709, 739-40 (Bankr. D. Mass. 2000), citing Lugo v. de
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 17 of 25

-18-
Jesus Saez (In re de Jesus Saez), 721 F.2d 848 (1st Cir. 1983) (civil contempt proceedings are
limited to redressing actual injury of those harmed by the contemnor’s conduct).
The Court also has the power to enjoin further violations of the discharge injunction. See
11 U.S.C. § 105(a); Paul, 534 F.2d at 1306 (“Under 11 U.S.C. § 105(a), bankruptcy court have
the equitable power to enforce and remedy violations of the substantive provisions of the
Bankruptcy Code, including in particular the discharge injunction in § 524(a)(2)”).
VIII. 	DISCUSSION
A. 	Class 1. Class 1 includes all New Mexico debtors who were granted a discharge
after January 1, 1997 and who owed money to Defendant pre-petition. Certification Order, p. 2.
Class 1 members seek injunctive and declaratory relief premised on Defendant’s alleged post-
discharge credit misreporting. Certification Order, p. 3.
(i) 	Class Definition. 	The main problem with Class 1 is that the definition
appears to include many Members who do not have claims against Defendant. Class 1 Members
seek 	a 	declaration 	that 	Defendant 	violated 	their 	discharge 	injunction, 	and 	an 	injunction
prohibiting further violations. 	To proceed as a class action, Plaintiffs must provide some
evidence that Defendant did in fact violate the Class 1 members’ discharge injunctions.
Here, the only substantially evidence is that, in about 80% of the cases,19 Defendant did
not report a Member’s bankruptcy discharge to credit reporting agencies, but continued to report
their debt as past due. 	As discussed above, this alleged credit reporting practice is not a per se
violation of § 524(a)(2). 	To prove that the practice violated the Class 1 Members’ discharge
injunctions, Plaintiff would have to show that the “objective effect” of the credit reporting is
prohibited, because it “really serve[d] to pressure the debtor to pay a discharged debt.” 	Paul,
534 F.3d at 1313.
19 See Fact 8, above.
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 18 of 25

-19-
At this point, the only evidence available to the Court is that Defendant’s class-wide
credit reporting practice did not have the objective effect of pressuring Members to pay
discharged debts. On the contrary, the available evidence shows that Defendant collected almost
no discharged debts from Members. 20 Per Wal-Mart’s heightened requirements for “probing
behind the pleadings,” Plaintiffs have the burden of coming forward with significant evidence
that Defendant’s class-wide conduct violated the discharge injunction under the Paul standard.
They have not done so.
Furthermore, there are reasons to believe that many Class 1 members do not have claims
against the Defendant for violating their discharge injunction. 	These Members likely include
those:
 	who did not pay any discharged, unsecured, un-reaffirmed debt;
 	with secured and/or reaffirmed debts;
 	who were never aware that Defendant was reporting their discharged debts
as still due;21
 	whose debts were properly reported by Defendant (perhaps about 20% of
the class); and/or
 	who complained to Defendant about how their debt was being reported, in
response to which Defendant changed its reporting.
It seems likely, based on the current evidence, that many more Class 1 Members have no
claims against Defendant than have claims. 	The inclusion of a substantial percentage of
Members who have no claim is grounds to decertify the class. 	See J.B. ex rel. Hart. v. Valdez,
186 F.3d 1280, 1290 (10 th Cir. 1999) (class certification inappropriate when some class members
clearly have no claim); Romberio v. Unumprovident Corp., 385 Fed. Appx. 423, 431 (6th Cir.
2009) (class action inappropriate when certain class members have no claim at all); Pueblo of
Zuni v. U.S., 243 F.R.D. 436, 443 (D.N.M. 2007) (class certification denied because, inter alia,
20 Four of 1600 members paid discharged, unsecured, non-reaffirmed debts in bankruptcy cases filed after
January 1, 2005.
21 It would be difficult or impossible to show coercion if the Members were unaware of Defendant’s acts.
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 19 of 25

-20-
class definition included members with no claim against the defendant); Daigle v. Shell Oil Co.,
133 F.R.D. 600, 604 (D. Colo. 1990) (class certification denied because the proposed class could
easily contain many who sustained no injury); Rogers v. NationsCredit Financial Services Corp.,
2000 WL 1499354, at *3-4 (N.D. Cal. 2000) (certification denied where a substantial portion of
proposed class members would not have a claim). 	See also In re Refrigerant Compressors
Antitrust Litigation, 2011 WL 2623317, at *2 (E.D. Mich. 2011) (denying request to certify class
because the proposed definition would contain members who had no claim and therefore lacked
standing); Lanson Development Co., v. City of Dearborn, 2011 WL 1561065 (E.D. Mich. 2011)
(denying proposed class certification because the class definition “appears to encompass
individuals who have no . . . claim at all”).
The definition of Class 1 likely seemed reasonable in 2008, before Paul was decided and
the Court had the benefit of the evidence now available. Because it now appears that most Class
1 members have no claim against Defendant, continued certification of the class would be
improper.
(ii) 	Commonality. 	Rule 23(a)(2) commonality is also a problem. 	Plaintiffs
must show that “there are questions of law or fact common to the class.” Rule 23(a)(2). Under
Wal-Mart, furthermore, a finding of the truth or falsity of an alleged common question must
“resolve an issue that is central to the validity of each of the claims in one stroke.” 131 S. Ct. at
2551.
The current record indicates that almost all Members would have to put on individualized
evidence of coercion to show Defendant violated their discharge injunction. 	The need for such
individualized proof means that there are not significant “questions of law or fact common to the
class,” as required by Wal-Mart.
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 20 of 25

-21-
In the typical post-Wal-Mart class action, proof that the defendant took a particular class-
wide action concludes the liability portion of the case. 	See, e.g. In re Rodriguez, 695 F.3d 360
(5th Cir. 2012) (class action appropriate where the activity complained of was charging fees in
violation of Bankruptcy Rule 2016(a)); Mazzei v. Money Store, 2012 WL 6622706 (S.D.N.Y.
2012) (certifying class action for breach of contract and other wrongs, alleging that a lender
improperly charged certain fees in contravention of form loan agreements). Cf. In re Gilliland,
474 B.R. 482, 496 (Bankr. N.D. Miss. 2012) (denying class certification because the facts
concerning creditor’s alleged violation of the discharge injunction varied widely between
putative class members, and the case therefore was not a “one size fits all cause of action.”).
Here, the only reasonably substantiated evidence of Defendant’s class-wide actions is not
enough to prove that Defendant violated all Members’ discharge injunctions. As far as the Court
can tell from the current record, Plaintiffs would need to prove at trial, on a Member-by-Member
basis, that the Defendant’s other actions had an actual coercive effect on the Member to pressure
payment of a discharged debt. The class claims therefore lack commonality as defined by Wal-
Mart.
(iii) 	Other Requirements. 	The Court does not know how many of the 1600
Class 1 Members might have individualized evidence that Defendant violated their discharge
injunction. It could be a very small minority. This brings into question whether Plaintiffs have
satisfied the numerosity requirement of Rule 23(a)(1). 	In addition, there is no evidence the
named Plaintiffs are typical of the class Members who might be able to show proof of a
discharge injunction violation. Neither Plaintiff paid a discharged debt, so it could be that they
have no claim against Defendant. 	If not, they could not satisfy the typicality requirement. 	See
Epps v. JPMorgan Chase, 2012 WL 5250538, at 2 (“[Plaintiff’s] claims cannot be ‘typical’
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 21 of 25

-22-
within the meaning of Rule 23(a)(3) if she does not have a claim herself). 	Furthermore, the
record indicates substantial variation in Defendant’s interaction with different Members, so
Plaintiffs’ interactions likely differed from those of the other Members.22 Thus, Plaintiffs have
not shown that they satisfy the “typicality” requirement of Rule 23(a)(3).23
In sum, at this stage of the case, Plaintiffs have not made the required showing, under the
“rigorous analysis” required post-Wal-Mart, that Class 1 is properly defined and satisfies Rule
23(a)’s commonality, numerosity, or typicality requirements. 24
(iv) 	Mootness. Apart from the problems discussed above, there is a substantial
mootness problem with the requested injunctive relief. 	It is undisputed Defendant has changed
its credit reporting policies in a way that addresses Plaintiff’s concerns. 	Motion, p. 11;
Response, p. 18. 	The Court finds it very unlikely that Defendant would revert to its former
policies, regardless of the outcome of this litigation. Given that, the Class 1 claim may be moot.
B. 	Class 2. Class 2 includes all New Mexico debtors who were granted a discharge
after January 1, 1997, who owed money to Defendant pre-petition, and who claim that they were
damaged by Defendant’s credit reporting practices, or else claim they were induced to pay a
discharged debt in exchange to Defendant changing its credit reporting. Certification Order, pp.
2-3. 	Class 2 members seek money damages, including punitive damages. 	Order Certifying
22 The probable differences include (i) whether the Member’s debt to Defendant was reported by
Defendant as discharged; (ii) whether the Member ever discovered any such reporting; (iii) whether the
Member ever asked Defendant to change its reporting; (iv) if so, whether Defendant did so; (v) which of
Defendant’s employee(s) the Member talked to, when, how many times, etc.; (vi) whether any collections
letters or telephone calls were received from Defendant, post-discharge about the discharged debt; (vii)
whether the Member ever paid any portion of the discharged debt; and (viii) whether the Member ever
tried to borrow money, post-discharge, and if so whether Defendant’s reporting of the Member’s
discharged debt had any effect on such borrowing. There is no indication in the evidence of uniformity in
the answers to any of these questions, thus making this case, like Gilliland, not a “one size fits all” cause
of action.
23 The inclusion of class members with no claim also raises doubts about typicality. See Rogers v.
NationsCredit, 2000 WL 1499354, at p. 4 (typicality requirement not met when some class members have
no claim).
24 The Court has no concerns about the adequacy of the representation given by Plaintiff’s counsel.
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 22 of 25

-23-
Class, p. 3.
(i) 	Predominance. 	Class 2 does not withstand the scrutiny required by Wal-
Mart. 	Class 2 has the same Rule 23(a) problems as Class 1. 	In addition, since proof of actual
damages is required in civil contempt proceedings like this one, the damages evidence would be
different for each Member. The discussion of this issue in Lester v. Percudani, 217 F.R.D. 345
(M.D. Pa. 2003) is instructive:
In this case, the injuries alleged are economic in nature and consist of the
increased mortgage payments and fees that class members must pay allegedly as a
result of the inflated home appraisals, the low tax assessments provided before
closing, and the incorrect estimated monthly mortgage payments provided before
and at closing. Thus, the very fact of injury, apart from the amount of damages,
depends almost entirely on individual circumstances [. . . .] The issue of damages,
a prerequisite of claims under both RICO and the Pennsylvania UTPCPL,
presents the court with the prospect of holding hundreds or thousands of
individual hearings.
345 F.R.D. at 352. 	The Lester court denied class certification because of the individualized
damages evidence. 	Here, as in Lester, to show and quantify actual injury each Member would
have to introduce his or her own proof. 25 Cf. In re Brannan, 2013 WL 85158, at *12 (Bankr.
S.D. Ala. 2013) (certifying a Rule 23(b)(3) class after finding that the damages claimed by class
members would not be individualized). 	Because of this, and because individualized proof of
violation of the discharge injunction also would be required in most cases, the Court cannot find
that common questions of law or fact predominate over questions affecting only individual
Members, nor that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy. Rule 23(b)(3).
(ii) 	Commonality and Numerosity. Another significant problem with Class 2
is that its members have never been identified. 	Class 2 members consist of Class 1 members
25 E.g., payment, increased difficulty in obtaining credit, higher borrowing costs, loss of employment or
promotion, and the like.
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 23 of 25

-24-
who either claim to have been damaged by Defendant’s credit reporting practices, or else claim
they were induced by Defendant to repay discharged debt. 	Certification Order, p. 2 (emphasis
added). 	So far, four Class 1 members have been identified as having paid discharged debt
(although the reasons for the payment are unknown, and no effort has been made to determine in
the members make the required claims). 	To the Court’s knowledge, the only Class 1 members
who claim to have been damaged are Plaintiffs. Thus, currently there are may be six identified
Class 2 members. Plaintiffs were supposed to identify all Class 2 members by July 31, 2009, but
never did so.
In a recent status conference held in this adversary proceeding, Plaintiffs’ counsel stated
he did not want to send a questionnaire to the Class 1 members because the Members would “not
understand” the survey and would not want to “go back and re-live” anything related to their
bankruptcy. 	Status Conference held March 4, 2013, doc. 166 (recording at 11:00-11:20).
Without such a polling of potential Class 2 members, however, the Court does not see how the
class members could ever be identified, nor how Plaintiffs could ever satisfy the commonality
and numerosity requirements of Rule 23(a)(1) and (a)(2). At this late point in the proceeding, it
is not acceptable to have such a vaguely defined class, with such an apparently tiny membership.
For this reason also, the Court cannot make the required finding required for continued
certification of Class 2.
IX. 	CONCLUSION
The Court is not ruling on the merits of Plaintiffs’ claims against Defendant, nor on the
merits of the claims of any other class member. 	Rather, the ruling is limited to whether the
classes should remain certified, given the facts presented to the Court, the current case law on
class actions, and the standards in the Tenth Circuit for determining whether facially permissible
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 24 of 25

-25-
activities violate the discharge injunction. 	The evidence before the Court is that the current
classes are not properly defined and do not satisfy the requirements of Rule 23. Furthermore, it
seems clear that a class action trial would be unworkable from the Plaintiffs’ (and the Court’s)
perspective because, inter alia, individualized proof would be required for both the alleged
violation of the discharge injunction, and for damages.
The Motion will be granted. 	This Memorandum Opinion shall constitute the Court's
findings of fact and conclusions of law under Fed.R.Bankr.P. 7052. An appropriate order will be
entered.
________________________________________
Hon. David T. Thuma,
United States Bankruptcy Judge
Entered on the docket: March 21, 2013.
Copies to:
Trey Arvizu
P.O. Box 1479
Las Cruces, NM 88004-1479
Kelly Albers
650 Montana Ave., Ste. D
Las Cruces, NM 88001-4294
Dennis E. Jontz
201 Third St., NW, Suite 1950
Albuquerque, NM 87102
Case 07-01026-t Doc 169 Filed 03/21/13 Entered 03/21/13 10:38:22 Page 25 of 25