A federal judge has denied class certification in a Fair Debt Collection Practices Act lawsuit against law firm Zager Fuchs after finding the size of the putative class—26 people—failed to meet the numerosity standard.

The suit claims the firm and attorney Michael Warshaw sent plaintiff Christine Zangara several letters in 2015 seeking to collect amounts in excess of what she owed on a defaulted bail bond. In September 2016, the firm and Warshaw filed a collection suit against Zangara. The firm and Warshaw filed 25 other suits against consumers since 2016 that sought more than the amount owed, Zangara claims.

Zangara moved for class certification in April, and U.S. District Judge Michael Shipp denied the motion without prejudice Monday. Shipp said that to certify the class, Zangara must show by a preponderance of the evidence that the class is so numerous that joinder of all members is impracticable. He said that a class of 20 or fewer members is usually considered insufficiently numerous, a class of over 40 members is sufficient, and 21-40 members "may not meet the numerosity requirement depending on the circumstances," citing a 2001 decision from the U.S. Court of Appeals for the Third Circuit.

When considering whether the proposed class is sufficiently numerous, courts consider judicial economy, the proposed class members' ability and motivation to litigate as joined plaintiffs, class members' financial resources and their geographic dispersion, and whether the claims are for injunctive relief or damages, Shipp said.

Zangara's lawyer, Bharati Sharma of the Wolf Law Firm in North Brunswick, claimed that ability and motivation of proposed class members weigh in favor of numerosity because members of the class have had a lawsuit brought against them for defaulting on a debt, so they are unlikely to have the resources to pursue individual actions under the FDCPA, which caps statutory damages at $1,000 per plaintiff.

Shipp said that concern was reasonable but was ameliorated by the FDCPA's provision allowing prevailing plaintiffs to recover attorney fees. In addition, although statutory damages are capped at $1,000 per plaintiff under the FDCPA, plaintiffs may also seek actual damages.

"Plaintiff, accordingly, has not shown by a preponderance of the evidence that this factor weighs in favor of numerosity," Shipp wrote.

Because Zangara provides "cursory or misplaced" arguments regarding judicial economy and class members' ability and motivation to litigate as joined plaintiffs, and because Zangara's lawyer failed to discuss the other factors, the court found the plaintiff failed to show by a preponderance of evidence that numerosity is satisfied.

Shipp declined to rule on a defense motion for summary judgment. When a class certification decision occurs at the same time as, or following, a decision on the merits, a court should be cautious, he said. "In the interest of judicial economy, the Court finds good cause to defer consideration of the parties' summary judgment motions until Plaintiff has been afforded another opportunity to move for class certification," Shipp said.

Zangara entered into an agreement with Rapid Bail Bonds in 2013 for a $2,500 bail bond for a person identified as Anthony Zangara. The agreement called for her to pay a 25% attorney fee plus costs if she defaulted.

After Anthony Zangara failed to appear in court and the bail bond was forfeited, Zangara  allegedly failed to make required installment payments toward the principal of the bond.

Rapid Bail Bonds assigned the debt to a company called FTA Financial, which sent a letter to Zangara in April 2015 to state that she owed $1,125 on the account. A month later, FTA sent another letter stating Zangara owed $3,085, with no explanation for why the amount owed increased.

In September 2016, Zager Fuchs filed a suit against Zangara, with the complaint signed by Warshaw. The suit said Zangara incurred counsel fees of $750, with no explanation as to whom the fees were owed or when they were incurred. The collection complaint said Zangara owed FTA a total of $3,835 and that counsel fees would continue to incur.

The suit said Zager Fuchs and Warshaw are debt collectors under the FDCPA and that they violated the act's proscriptions on false or misleading representations and the use of unfair or unconscionable means to collect a debt by seeking an amount not expressly authorized by the agreement.

Sharma and the lawyer for Zagar Fuchs and Warshaw, Lawrence Bartel III of Gordon Rees Scully Mansukhani in Philadelphia, declined to comment.