Tullie v. Quick Cash, Inc.

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: QUICK CASH, INC., a New Mexico corporation, 	No. 11-15-11800 JA
Debtor.
CAROLINE TULLIE,
on her own behalf as next
friend of Nelson Tullie, and on
behalf of all others similarly situated,
Plaintiff,
v. 	Adversary No. 15-1063 J
QUICK CASH, INC, d/b/a
CASH COW LOAN CO.,
Defendant.
MEMORANDUM OPINION
Plaintiff Caroline Tullie, on her own behalf as next friend of Nelson Tullie, and on behalf
of all others similarly situated, filed a class action against Defendant Quick Cash, Inc. (“Quick
Cash”) in the United States District Court for the District of New Mexico as Case No. 1:14-cv-
00491-SMV-SCY (the “Class Action Suit”). Ms. Tullie removed the Class Action Suit to this
Court initiating this adversary proceeding on August 5, 2015. Before removal, the parties had
briefed the issue of class certification, but the class had not been certified as of the removal date.
Upon review of Plaintiff’s Motion for Class Certification and the competing briefs, and being
otherwise sufficiently informed, the Court finds that the Motion for Class Certification should be
granted and the class certified pursuant to Fed. R. Civ. P. 23, made applicable to this adversary
proceeding by Fed. R. Bankr. P. 7023.
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DISCUSSION
Ms. Tullie requests class certification pursuant to Fed. R. Civ. P. 23 to pursue her claims
against Quick Cash under the federal Truth in Lending Act and the New Mexico Unfair Practices
Act. Class certification requires satisfaction of all four requirements of Rule 23(a), plus the
requirements of one of the three categories of class actions described in Rule 23(b). Wal-Mart
Stores, Inc. v. Dukes, __ U.S.__, 131 S.Ct. 2541, 2548, 180 L.Ed.2d 374 (2011) (“Under Rule
23(a), the party seeking certification must demonstrate first, that [the requirements of 23(a) are
met]. Second, the proposed class must satisfy at least one of the three requirements listed in Rule
23(b)”); In re Integra Realty Res., Inc. 354 F.3d 1246, 1262 (10 th Cir. 2004) (the proposed class
must meet “the four prerequisites of numerosity, commonality, typicality, and fair and adequate
representation set forth in Rule 23(a)[,]” and the claim must be “maintainable as a class action
under one of the three categories of suits described in Rule 23(b)”) (citation omitted). Rule 23(a)
provides:
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;
(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).
Ms. Tullie asserts that the Class Action Suit is the type of class action described in category 3 of
subsection (b), which provides:
A class action may be maintained if Rule 23(a) is satisfied and if:
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(3) the court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently
adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed.R.Civ.P. 23(b)(3).
The party requesting class certification bears the burden of demonstrating that the requirements
for class certification have been met. See Wal-Mart Stores, 131 S.Ct. at 2551 (“A party seeking
class certification must affirmatively demonstrate his compliance with the Rule”); Trevizo v.
Adams, 455 F.3d 1155, 1162 (10 th Cir. 2006) (“A party seeking class certification must show
‘under a strict burden of proof’ that all four requirements are clearly met.”) (quoting Reed v.
Bowen, 849 F.2d 1307, 1309 (10 th Cir. 1988)).
“Certification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that
the prerequisites of Rule 23(a) have been satisfied.’” Wal-Mart Stores, 131 S.Ct. at 2551
(quoting General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364,
72 L.Ed.2d 740 (1982)). In conducting its analysis, the Court cannot rely solely on the
allegations of the complaint because “Rule 23 does not set forth a mere pleading standard.” Wal-
Mart Stores, 131 S.Ct. at 2551. See also, Montano v. First Light Fed. Credit Union, (In re
Montano), 488 B.R. 695, 703 (Bankr. D.N.M. 2013) (“When ruling on the propriety of class
certification, the trial court is required to do more than accept plaintiff’s allegations.”). The party
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seeking class certification must provide some evidentiary basis to demonstrate “‘that there are in
fact sufficiently numerous parties, common questions of law or fact,’ typicality of claims or
defenses and adequacy of representation, as required by Rule 23(a) . . . . [and] must also satisfy
through evidentiary proof at least one of the provisions of Rule 23(b).” Comcast Corp. v.
Behrend, __ U.S.__, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 5158 (2013) (quoting Wal-Mart Stores,
131 S.Ct. at 2552). With these standards in mind, the Court will consider whether Ms. Tullie has
satisfied the requirements for class certification.
A. Rule 23(a)
“As a prerequisite to class certification, the class must be adequately defined.” Montano,
488 B.R. at 704 (citing Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir.
1977)). See also Warnick v. Dish Network LLC, 301 F.R.D. 551, 555 (D.Colo. 2014), appeal
docketed, No. 15-1100 (10 th Cir. Mar. 20, 2015) (“although not specifically mentioned in Rule
23, there must be an ascertainable class.”) (citations omitted). “If the members of the class can
be ascertained by reference to objective criteria, then the class is adequately defined.” Warnick,
301 F.R.D. at 556 (quoting Edwards v. Zenimax Media Inc., 2012 WL 4378219, at *4 (D.Colo.
Sept. 25, 2012) (remaining citations omitted)). Ms. Tullie defines the class as consisting “of all
natural persons who, within four years prior to the filing of the Complaint, borrowed money
from Cash Cow (including the refinancing of previous loans), where Cash Cow (1) charged a
$25 ‘application fee’ but failed to include that fee in the Finance Charge, and/or (2) failed to
disclose the dates and frequency of payments.” See Plaintiff’s Brief in Support of Motion for
Class Certification (“Plaintiff’s Certification Brief”) – Docket No. 1-5, p. 11. This definition
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sufficiently describes a discrete set of class members using objective criteria who have been
affected by Quick Cash’s lending practices.
1. 	Numerosity
The numerosity element under Rule 23(a)(1) requires plaintiff to demonstrate “that the
class is so numerous as to make joinder impracticable.” Trevizo, 455 F.3d at 1162 (quoting
Peterson v. Okla. City Housing Auth., 545 F.2d 1270, 1273 (10 th Cir. 1976)). There is “‘no set
formula to determine if the class is so numerous that it should be so certified.’” Trevizo, 455 F.3d
1162 (quoting Rex v. Owens ex rel. State of Okla., 585 F.2d 432, 436 (10 th Cir. 1978)). But the
class representative must present “some evidence of established, ascertainable numbers
constituting the class.” Rex, 585 F.2d at 436.
Ms. Tullie contends that the class consists of more than 4,700 members, and supports this
contention with excerpts from the deposition of Quick Cash’s representative stating that there
were 4,000 instances between May 23, 2012 to May 23, 2013 where Quick Cash charged
application fees that were not disclosed as part of a finance charge on the loan documents, and in
the year before there were “possibly” more than a thousand. See Plaintiff’s Certification Brief –
Exhibit B. Quick Cash has not disputed that Ms. Tullie has satisfied the numerosity
requirement.1 The Court agrees that 4,000 plus class members satisfies the numerosity
requirement. Joinder of more than 4,000 individuals as plaintiffs in this adversary proceeding
would be impracticable.
1 The Court also notes that the creditor mailing matrix in Quick Cash’s bankruptcy case has over 7,000 listed
creditors. See Bankruptcy Case No. 15-11800.
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2. 	Commonality
Rule 23(a)(2), referred to as the “commonality requirement” requires the presence of
“questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). Commonality requires
the putative class members to “possess the same interest and suffer the same injury.” Falcon,
457 U.S. at 157, 102 S.Ct. 2364. In Wal-Mart Stores, the Supreme Court heightened this
commonality standard, explaining that commonality “does not mean merely that [the class
members] have all suffered a violation of the same provision of law,” and clarifying that the
“claims must depend on a common contention . . . . [which] must be of such a nature that it is
capable of classwide resolution.” Wal-Mart Stores, 131 S.Ct. at 2551.
Ms. Tullie identifies several questions of law and fact common to all class members. She
alleges that Quick Cash used the same form of Retail Installment Contract for all if its retail
loans including those loans extended to Ms. Tullie and other members of the putative class,
charged its customers a $25 application fee when customers borrowed money from Quick Cash,
and did not include the “application fee” in the Finance Charge reported in the standard Retail
Installment Contract. In support of these common factual issues, Ms. Tullie attached excerpts
from the deposition transcript for Quick Cash’s representative acknowledging that Quick Cash
uses the identical Retail Installment Contract form for all of its retail loans, and charged its
customers a $25 “application fee” but did not include the application fee as a finance charge. See
Plaintiff’s Certification Brief – Exhibit B. 	“‘Claims arising out of standard documents present a
classic case for treatment as a class action.’” Maez v. Springs Automotive Group, LLC, 268
F.R.D. 391, 396 (D.Colo. 2010) (quoting Arenson v. Whitehall Convalescent and Nursing Home,
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Inc., 164 F.R.D. 659, 664 (N.D.Ill. 1996)). As for common questions of law, Ms. Tullie
contends that the $25 application fee constitutes a “Finance Charge” under TILA, that Quick
Cash violated the TILA by failing to accurately disclose the Finance Charge and the Annual
Percentage Rate on the loan agreement, that Quick Cash violated the TILA by failing to disclose
to class members all required information in the payment schedule, and that Quick Cash’s
alleged misrepresentation of the Finance Charge states a claim for damages under the UPA.
Whether the putative class members suffered the same injury, i.e., was the application fee
improperly charged and not disclosed as a finance charge in violation of the TILA and the UPA,
is capable of classwide resolution. Quick Cash has not disputed that Ms. Tullie has satisfied the
commonality requirement. The Court finds that Ms. Tullie has satisfied the commonality
requirement.
3. 	Typicality
Typicality under Rule 23(a)(3) requires that “the claims or defenses of the representative
parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). 	To satisfy this
standard, the representative’s “interest in prosecuting [her] own case must simultaneously tend to
advance the interests of the absent class members.” Deiter v. Microsoft Corp., 436 F.3d 461, 466
(4 th Cir. 2006). However, the representative party’s claim need not be identical to the claims of
the other members of the class to satisfy Rule 23(a)(3)’s typicality requirement. See DG v.
Devaughn, 594 F.3d 1188, 1198 (10 th Cir. 2010) (“The interests and claims of Named Plaintiffs
and class members need not be identical to satisfy typicality.”) (citing Anderson v. City of
Albuquerque,690 F.2d 796, 800 (10 th Cir. 1982)). When the class representative’s claim and the
claims of the other “class members are based on the same legal or remedial theory, differing fact
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situations of the class members do not defeat typicality.” Devaughn, 594 F.3d at 1198-1199
(citing Adamson v. Bowen, 855 F.2d 668, 676 (10 th Cir. 1988)). “[L]ike commonality, typicality
exists where . . . all class members are at risk of being subjected to the same harmful practices,
regardless of any class member’s individual circumstances.” Devaughn, 690 F.2d at 1199
(citation omitted).
Ms. Tullie’s claim and the claims of all other class members are premised on Quick
Cash’s use of the same form Retail Sales Installment Contract, the same $25 application fee, and
the same course of conduct in disclosing payment schedules. Ms. Tullie’s claims are premised
on the same legal theories as those raised on behalf of the class. That Ms. Tullie’s individual
claimed recovery may vary from other class members is insufficient to defeat typicality. Quick
Cash has not disputed that Ms. Tullie has satisfied the typicality requirement. The Court finds
that Ms. Tullie has satisfied the typicality requirement.
4. 	Adequacy of Representation
Quick Cash’s only objection to the Motion for Class Certification is that Ms. Tullie
cannot provide the potential class with adequate representation and has, therefore, not satisfied
the requirements of Rule 23(a)(4). Adequacy of representation under Rule 23(a)(4) requires that
“the representative parties will fairly and adequately protect the interests of the class.”
Fed.R.Civ.P. 23(a)(4). The Court examines legal adequacy by answering the following
questions: “(1) do the named plaintiffs and their 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?’” Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10 th
Cir. 2002) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1988)). Also
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relevant to the second question is the experience and competence of plaintiff’s counsel. See In re
Thornburg Mortg., Inc. Securities Litigation, 912 F.Supp.2d 1178, 1223 (D.N.M. 2012) (“In
considering the second question, the experience and competence of the attorney representing the
class may inform the court’s analysis.”) (citing Lopez v. City of Santa Fe, 206 F.R.D.285, 289-90
(D.N.M. 2002)). To satisfy the adequate representation requirement, the class representative
must demonstrate that his or her interests are aligned with the interests of the class, and that he or
she “will vigorously prosecute those interests with the assistance of qualified counsel.” In re
Adam Aircraft Indus., Inc., 2009 WL 2100929, *12 (Bankr.D.Colo. Mar. 20, 2009) (citing
Rutter, 314 F.3d at 1187-88).
Quick Cash asserts that Ms. Tullie is not an adequate class representative because she is a
class representative in a different consumer class action suit against a different defendant,
because she is confused about her status, role and obligations as class representative in this
lawsuit, and because she does not understand the nature of her claims asserted against Quick
Cash in this lawsuit. Quick Cash relies on deposition testimony from Ms. Tullie indicating that
she believes her suit against Quick Cash involves her truck title and that she really does not
know about whether the lawsuit against Quick Cash is an individual or class action suit. Ms.
Tullie’s serving as a class representative in other litigation, her possible confusion about her
claims in this adversary proceeding, or her status, role and obligations as class representative fail
to show that Ms. Tullie cannot adequately represent the class.
There is no evidence or claim of any conflict of interest between Ms. Tullie and other
members of the class, or between her counsel and other members of the class. Ms. Tullie’s
interests are aligned with those of other similarly situated consumers who borrowed money from
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Quick Cash under a Retail Sales Installment Contract. In addition, with the assistance of
counsel, the Court is convinced that Ms. Tullie will prosecute the action vigorously on behalf of
the class. Ms. Tullie’s counsel has prosecuted the action both in Federal District Court and now
in this Court. Her counsel is familiar with consumer class action lawsuits and is competent to
represent Ms. Tullie in this case. He has brought over 20 class action suits in federal court.
Many of those federal class actions suits resulted in recovery to the classes. Plaintiffs’ counsel
has represented numerous clients in bringing claims under the TILA and the UPA. See
Plaintiff’s Certification Brief – Exhibit C, Declaration of Richard N. Feferman. Ms. Tullie’s
counsel has ably and vigorously asserted the interests of his client before this Court. The Court,
therefore, finds that Ms. Tullie has satisfied the adequate representation requirement for class
certification.
B. Rule 23(b)(3)
Ms. Tullie seeks to certify the class under subsection (3) of Rule 23(b), which requires
that “questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). The Court must
“make findings about predominance and superiority” before certifying the class. Wal-Mart, 131
S.Ct. at 2559. Rule 23(b)(3) directs the Court to a non-exclusive list of pertinent matters relating
to the Court’s findings of predominance and superiority:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already begun by or against class members;
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(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed.R.Civ.P. 23(b)(3)(A) – (D).2
The Court will separately examine the predominance and superiority requirements with
these factors in mind. See Bustillos v. Board of Cnty. Comm’rs of Hidalgo Cnty.__ F.R.D. __,
2015 WL 6393567, *22 (D.N.M. Sept. 16, 2015) (“These four factors are not generally
considered separately, but rather are analyzed at the level of two requirements—both of which
must be satisfied: predominance and superiority. The four factors in (b)(3)(A) through (b)(3)(D)
are all probative of both requirements.”).
1. 	Predominance
“[T]he predominance criterion [of Rule 23(b)(3)] is far more demanding” than Rule
23(a)’s commonality requirement. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 624, 117
S.Ct. 2231, 138 L.Ed.2d 689 (1997). Whereas commonality requires that the claims of all class
members share common questions of law or fact, predominance requires that those common
questions “predominate over any questions affecting only individual members.” Fed.R.Civ.P.
23(b)(3). The predominance inquiry tests whether the proposed class is “sufficiently cohesive to
warrant adjudication by representation,” Amchem Products, 521 U.S. at 623, and requires that
issues common to all class members predominate over individual issues. Foster v. Merit Energy
Co., 282 F.R.D. 541, 562 (W.D.Okla. 2012) (quoting In re Hydrogen Peroxide Antitrust Lit., 552
F.3d 305, 311 (3rd Cir. 2008) and citing Monreal v. Potter, 367 F.3d 1224, 1237-38 (10th Cir.
2 See also Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)(“Rule
23(b)(3) includes a nonexhaustive list of factors pertinent to a court’s ‘close look’ at the predominance and
superiority criteria”).
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2004)). The need to conduct damages calculations on an individualized basis does not
automatically defeat class certification. See Behrend, 133 S.Ct. at 1437 (Ginsburg & Breyer, JJ.,
joined by Sotomayor & Kagan, JJ., dissenting) (“Recognition that individual damages
calculations do not preclude class certification under Rule 23(b)(3) is well nigh universal.”). But
where issues subject only to individualized proof predominate, class certification under Rule
23(b) is not appropriate. See Klay v. Humana, 382 F.3d 1241, 1255 (11 th Cir. 2004), abrogated
in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct.
1231, 170 L.Ed.2d 1012 (2008) (finding that class certification is not appropriate where class
members must “introduce a great deal of individualized proof or argue a number of
individualized legal points to establish most or all of the elements of their individual claims.”).3
The class claims are all premised on Quick Cash’s use of the form Retail Sales
Installment Contract, charging customers a standard $25 application fee, and whether its lending
procedures in relation to those charges violated the TILA and the UPA. The question of liability
is, therefore, uniform as to all class members, and will necessarily involve resolution of common
questions of law. As for damages, although individual members of the class may claim a
different damage amount depending upon the number of loans and how many “application fees”
were charged, the damages amount is easily calculable. The Court finds that Ms. Tullie has
satisfied the predominance requirement for certification of her class claims.
3 See also, Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) (predominance 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 that the issues subject only to individualized
proof.’”) (quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002)).. .
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2. 	Superiority
In addition to the predominance requirement, the Court must also find that a class action
“is superior to other available methods for fairly and efficiently adjudicating the controversy”
before certifying a class under Rule 23(b)(3). Fed.R.Civ.P. 23(b)(3). A class action is
particularly well-suited to vindicate “the rights of groups of people who individually would be
without effective strength to bring their opponents to court at all.” Amchem, 521 U.S. at 617
(quotation marks and citation omitted). “The policy at the very core of the class action
mechanism is to overcome the problem that small recoveries do not provide the incentive for any
individual to bring a solo action prosecuting his or her rights.” Id. (quoting Mace v. Van Ru
Credit Corp., 109 F.3d 388, 344 (7th Cir. 1997)).
Here, the amounts of the individual claims are small. The members of the class are likely
unsophisticated, and may be unaware of their potential claims. This is precisely the type of
action best suited to filing as a class action. See, e.g., Maez v. Springs Automotive Group, LLC,
268 F.R.D. 391 (D.Colo. 2010) (certifying class action asserting TILA claims); Yazzie v. Ray
Vicker’s Special Cars, Inc., 180 F.R.D. 411 (D.N.M. 1998) (certifying class alleging claims that
pawn ticket disclosures violated the TILA). The class members likely would have no interest in
controlling the litigation through separate, individual claims. See Fed.R.Civ.P. 23(b)(3)(A)
(directing the Court to consider “the class members’ interest in individually controlling the
prosecution . . . of separate actions.).
There is little evidence before the Court regarding the second factor, which considers “the
extent and nature of any litigation concerning the controversy already begun by or against class
members.” Fed.R.Civ.P. 23(b)(3)(B). Quick Cash has asserted that Ms. Tullie is a class
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representative in another class action initiated against a different defendant in a different forum
and that she believes her claim against Quick Cash concerns her truck title. But there is no
evidence of any other similar actions currently pending against Quick Cash.
The third and fourth factors, the desirability of concentrating the claims in a particular
forum and the anticipated difficulties in managing a class action, appear to go hand in hand when
applied to this case. Quick Cash filed its voluntary petition in bankruptcy after Ms. Tullie
initiated the Class Action Suit. One benefit of a bankruptcy case is that it concentrates all claims
against the debtor in one forum. See In re Woodward & Lothrop Holdings, Inc., 205 B.R. 365,
376 (Bankr. S.D.N.Y. 1997) (“A bankruptcy proceeding offers the same procedural advantages
as the class action because it concentrates all the disputes in one forum.”) (citations omitted).
Adjudicating all claims, including the claims asserted in the Class Action Suit, in the bankruptcy
court is desirable because it is consistent with the goals of bankruptcy. Manageability
“encompasses the whole range of practical problems that may render the class action format
inappropriate for a particular suit.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164, 94 S.Ct.
2140, 40 L.Ed.2d 732 (1974). The noticing requirements for class action suits and the noticing
requirements for claims in the bankruptcy process complicate the management of this Class
Action Suit. But these additional complications are insufficient to render the class action format
unmanageable. The Court has already determined that Quick Cash must provide additional
notice of the general claims bar date in the bankruptcy case to members of the class. The Court
can manage the class action consistent with the claims process in the bankruptcy case.
Based on the foregoing, the Court concludes that Ms. Tullie has satisfied all the
requirements for class certification under Rule 23. The Court further finds that the class falls
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into the category of class actions described in Rule 23(b)(3). The Court will enter a separate
order consistent with this Memorandum Opinion directing Ms. Tullie to submit a class
certification order.
___________________________________
ROBERT H. JACOBVITZ
United States Bankruptcy Judge
Date entered on docket: November 10, 2015
COPY TO:
Richard N Feferman
Attorney for Plaintiff
300 Central Ave SW Ste 2000 W
Albuquerque, NM 87102-3298
Daniel J. Behles
Moore, Berkson, Bassan & Behles, P.C.
Attorney for Defendant
3800 Osuna Rd NE, Suite #2
Albuquerque, NM 87109
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