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Ademiluyi v. Pennymac Mortgage Investment Trust Holdings I, LLC

United States District Court, D. Maryland

February 10, 2015

CHRISTIE ADEMILUYI, Plaintiff, on behalf of herself and others similarly situated,



Nearly three years ago, in March 2012, plaintiff Christie Ademiluyi filed a putative class action in this Court against defendants PennyMac Mortgage Investment Trust Holdings I, LLC ("PennyMac"); PennyMac Mortgage Investment Trust; and N.K.A. PennyMac Holdings, LLC. See ECF 1 (filed Mar. 10, 2012). In her Complaint, plaintiff alleged that defendants' unlicensed debt collection activity violated various provisions of the Fair Debt Collection Practices Act ("FDCPA"), including 15 U.S.C. §§ 1692e & 1692f; that defendants' unlicensed debt collection activity constituted mortgage fraud, in violation of the Maryland Mortgage Fraud Protection Act ("MMFPA"), Md. Code (2010 Repl. Vol, 2012 Supp.), § 7-401 et seq. of the Real Property Article ("R.P."); and that defendants had been unjustly enriched by their unlawful debt collection activity. Id. Defendants filed a Motion to Dismiss all claims. ECF 10 (Motion).

In March 2013, after extensive briefing by the parties, I granted in part and denied in part defendants' Motion to Dismiss. ECF 26 (Memorandum); ECF 27 (Order). In particular, I dismissed all of plaintiff's claims except for the FDCPA claim. Id.

Five motions are currently pending: plaintiff's Motion to Certify the Class (ECF 61, "Class Motion"); plaintiff's Motion for Summary Judgment (ECF 62); defendants' Motion for Summary Judgment (ECF 69); plaintiff's "Motion to Substitute the Named Party and Other Relief" (ECF 90); and plaintiff's "Motion to Amend Motion to Substitute the Named Plaintiff and Other Relief (DOC#90)" (ECF 92).

This Memorandum addresses all but the motions for summary judgment. As discussed, infra, the motions have been fully briefed, and no hearing is necessary to resolve them. See Local Rule 105.6. For the reasons that follow, I will grant the Motion to Amend (ECF 92), insofar as it "amends, " and renders moot, the Motion to Substitute (ECF 90), but I will deny the relief requested in ECF 92. I will also deny the Motion to Certify the Class (ECF 61).

Factual Background

The facts relevant to the motions at issue are entirely procedural. As stated, plaintiff filed suit in March 2012. ECF 1. In March 2014, at the close of discovery, plaintiff filed a Motion to Amend her Complaint. ECF 49 (Motion). The Court granted the motion. ECF 52 (Order). Plaintiff filed her Amended Complaint on March 26, 2014, ECF 53, and defendants answered soon after. ECF 57. On May 15, 2014, plaintiff filed her Class Motion (ECF 61), and a Motion for Summary Judgment (ECF 62). On June 11, 2014, defendants filed a Cross-Motion for Summary Judgment. ECF 69. Defendants opposed the Class Motion, ECF 68, and both sides filed responses in opposition to the opposing motion for summary judgment. See ECF 72 (plaintiff's response); ECF 74 (defendants' response).

On October 2, 2014, April Ademiluyi, Esq., the daughter of plaintiff, appeared on behalf of plaintiff, see ECF 83 (Notice of Appearance), and the attorneys who had been representing plaintiff since initiation of the lawsuit moved to withdraw as plaintiff's counsel. See ECF 84 (Motion to Withdraw). I granted the Motion to Withdraw on October 6, 2014. ECF 85 (Order).

On October 15, 2014, plaintiff filed a "Motion to Appoint Class Counsel and Other Relief" (ECF 88, "Motion to Appoint"), along with a memorandum of law (ECF 88-1). In particular, plaintiff asked the Court to appoint an attorney to represent the putative class, and provided the names and contact information of two attorneys "who may accept appointment of this case." ECF 88-1 at 3. Plaintiff explained her request as follows, id. at 1 (citations omitted) (emphasis added):

Due to irreconcilable differences occurring a couple weeks ago, Plaintiff had to discharge counsel representing her and others similarly situated in the instant case. On October 2, 2014 Plaintiff's daughter... entered an appearance on her behalf.... Unlike the previous counsel, Plaintiff's current counsel does not have the necessary experience in handling class action cases. The Motion to Certify Class, which addresses counsel to represent the class, must be amended prior to this Court's consideration.
Plaintiff further argued, id. at 2-3 (emphasis added):
While Plaintiff's current counsel [ i.e., April Ademiluyi] would be honored at the opportunity to litigate a class action suit, this Court will likely find that the due [sic] to relationship between the name [sic] Plaintiff and counsel or the lack of experience in class action cases, Plaintiff's counsel cannot adequately represent the class. Rule 23g(1)(a) (ii) [sic] ("in [sic] appointing class counsel, the court must consider...counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action."). At this juncture, the Court will find that the class is unrepresented.

In an Order of October 20, 2014 (ECF 89), I denied plaintiff's Motion to Appoint Class Counsel, for the reasons stated. But, I granted plaintiff thirty days from the docketing of the Order to secure her own class counsel, and held the pending Class Motion and cross-motions for summary judgment in abeyance for the same thirty-day period. Id.

At the end of the thirty-day period, on November 20, 2014, plaintiff filed a "Motion to Substitute the Named Party and Other Relief" (ECF 90, "Motion to Substitute"), along with a supporting memorandum (ECF 90-1) and affidavits of Christie Ademiluyi (ECF 90-2) and Jennifer Ferguson (ECF 90-3). Plaintiff asked the Court to grant the following relief, ECF 90 at 1:

1) pursuant to Rule 21 or in the alternative Rule 15, substitute the named Plaintiff with Jennifer and Shirrita Ferguson and allow them additional time to amend the pleadings; 2) if this Court allows substitution of the named plaintiff, issue a new scheduling order; and 3) pursuant to rule 41a(2), dismiss Ms. Ademiluyi's claim without prejudice.

In the supporting memorandum, plaintiff argued, inter alia, that "Ms. [April] Ademiluyi requested this Court appoint counsel to represent the class because of her familial relationship with the named the Plaintiff [sic] may create difficulties with certifying the class." ECF 90-1 at 2. Plaintiff added that, "[s]hould this Court grant the motion to substitute the named plaintiff, it moots the possible necessity for additional counsel to enter an appearance, " because "Plaintiff's counsel has no relationship with the potential named plaintiff and counsel's lack of experience in handling class action cases does not disqualify her to be appointed class counsel." Id. at 10.

Plaintiff indicated that granting her the relief requested in ECF 90 would be tantamount to re-starting the suit from scratch. She stated, inter alia, ECF 90-1 at 4, 9, 12 (emphasis added):

The Fergusons anticipate bringing individual claims of additional violations of the fair debt collections practices act; mortgage fraud; gross negligence; invasion of privacy; and ...

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