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Glazer v. Reimer, Arnovitz, Chernek & Jeffrey Co.

United States District Court, N.D. Ohio, Eastern Division

March 28, 2018



          CHRISTOPHER A. BOYKO United States District Judge

         This matter is before the Court on Plaintiff Lawrence Glazer's Motion to Amend the Complaint and to Reinstate Plaintiff's Counsel of Record. (ECF # 272). For the following reasons, the Court, grants in part, and denies in part, Plaintiff's Motion.

         Procedural Background

         Plaintiff filed his initial Complaint on June 2, 2009 against Chase Home Finance, LLC. and Reimer, Arnovitz, Chernek & Jeffrey Co. (“RACJ”), Cindy Smith and other unnamed Defendants arising out of a foreclosure action. On March 31, 2010, the Court adopted the Report and Recommendation of the Magistrate Judge recommending dismissal of all Plaintiff's federal claims against Chase, RACJ, Smith and other Defendants. Because the Court dismissed all the federal claims, the Court refused to exercise jurisdiction over the state law claims. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed, in part, and reversed, in part. The Sixth Circuit found that this Court properly dismissed the claims against Chase, but that it erred in dismissing the claims against RACJ because a law firm conducting a mortgage foreclosure is partaking in “debt collection” under the FDCPA. Glazer v. Chase Home Finance, LLC, 704 F.3d 453, 464 (6th Cir. 2013). In addition to reinstating the federal claims against RACJ, the Sixth Circuit reinstated the state law claims as well. Plaintiff did not appeal the Court's decision to dismiss Smith. During the pendency of Plaintiff's appeal, Plaintiff prosecuted his state law claims in state court. Those claims were adjudicated and are no longer before this Court.

         In June of 2013, Plaintiff sought to amend his Complaint to add class claims against RACJ. The Court granted the Motion in part allowing Plaintiff to add class claims and allegations against RACJ but denied as to naming new Defendants. He also filed a Motion for Class Certification which Defendants opposed. However, Plaintiff never filed the amended Complaint. Discovery commenced and in 2015 Defendant moved to disqualify Plaintiff's counsel as she was a fact witness in the case. The Court granted the Motion to Disqualify and ordered Plaintiff to obtain new counsel. Glazer did not obtain new counsel.

         When considering the Motion for Class Certification, the Court noted Plaintiff never filed the Second Amended Complaint. The Court issued its order denying as moot Plaintiff's Class Certification motion holding as follows:

However, Plaintiff never filed an Amended Complaint let alone an Amended Complaint that complied with the Court's ruling on the Motion for Leave. Although the Court subsequently disqualified Plaintiff's counsel post-filing of the Motion for Class Certification, Plaintiff was represented by counsel at the time the Motion for Leave was granted in part. The original Complaint in this action did not plead class claims but reserved the right to pursue class claims.
Because there is no operative Complaint alleging class claims, the Motion for Class Certification is premature and is denied as moot, subject to refiling upon the filing of an Amended Complaint which comports with the Court's March 25, 2014 ruling. Plaintiff shall file a compliant Amended Complaint no later than April 6, 2016 and Defendants shall file their Amended Answer to the Amended Complaint no later than April 20, 2016. Plaintiff may refile his Motion for Class Certification at that time.

         Plaintiff's Second Amended Complaint seeks to add newly defined classes, enlarge the class time period and amend around Defendants' arguments that the originally defined classes were fail-safe classes that could not be certified. Because this new Complaint bears little resemblance to the original that the Court granted in part, Defendants argue it must be denied. Nor is the Class Certification motion a “renewed” motion as ordered by the Court but instead presents a new motion with an entirely different class.

         Defendants' Opposition to the Motion

         Defendants argue Plaintiff's latest attempt to amend severely prejudices their defense. Plaintiff attempts to redefine the class after class discovery and briefing has closed and after having the benefit of Defendants' Opposition exposing the flaws in Plaintiff's original class definition. Furthermore, Plaintiff attempts to greatly expand the scope of the class while offering no evidence to support such an expansion of the class from two years to eights years at this late juncture. Finally, Defendants contend the new class definitions are still fail-safe classes and that depend on the validity of the claims.

         Arguing futility, Defendants contend the GSE class is still a fail-safe class because even though Plaintiff removed language about the “rightful” creditor, his new class definition requires that there be a merits determination that Defendants were liable before a putative class member could be included in the class.

         Similarly, Defendants contend the Corporate Advance Class is overbroad and includes class members for whom Defendants may have legitimately attempted collection efforts against.

         Also, Defendants contend Plaintiff's attempt to add allegations in his Complaint must be denied because these allegations substantially alter Plaintiff's theories, including matters already ruled upon by the Court. Plaintiff's new allegation in paragraph 43 concerning Chase assuming the day to day servicing rights on the Klie loan on November 1, 2007, alters his prior allegation that Chase assumed the loan on November 1, 2007. This is an attempt by Plaintiff to change factual allegations already ruled upon by the Court and affirmed by the Sixth Circuit. It is important because the Court originally dismissed claims against Chase because Chase was the servicer of the loan prior to default and was therefore a creditor. Under the law, if a servicer is assigned a debt before the debt is in default the servicer is exempt from the FDCPA because they are ...

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