Court Strikes Class Allegations Against Lender And Foreclosure Service Providers For Failure To Satisfy Rule 23(a)(2)’S Commonality Requirement

The Northern District of Illinois recently granted a motion to strike class allegations prior to class discovery. Plaintiff mortgagor alleged, inter alia, that in foreclosure proceedings, defendants engaged in unfair and deceptive business practices in violation of the Fair Debt Collection Practices Act (“FDCPA”) and Illinois Consumer Fraud Act (“ICFA”) by entering and possessing his and putative class members’ homes before the mortgagee had legal possession of the properties.

In granting the motion to strike, the court reasoned that the surviving ICFA claim required individual inquiries into each class member’s circumstances to determine the answer to such questions as what harm occurred, whether the property was entered before the mortgagee obtained possession, whether any action was authorized by law or contract, or whether any court orders were applicable. As such, the plaintiff failed to satisfy the commonality test of Rule 23(a)(2). The court also noted that certification under Rule 23(b)(2) would be inappropriate in any event, as plaintiff’s requested relief related exclusively or predominantly to money damages as opposed to any threatened future conduct; thus, class members would have nothing to gain from an injunction. 

Alqaq v. CitiMortgage, Inc., No. 13-C-5130, slip op. (N.D. Ill. Apr. 29, 2014)

 

Topics:  Class Action, Commonality, Debt Collection, FDCPA, Foreclosure, Lenders, Mortgages

Published In: Business Torts Updates, Civil Procedure Updates, Finance & Banking Updates, Residential Real Estate Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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