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In re Wilborn

This is an interlocutory appeal from the bankruptcy court's certification of a class action in an adversary proceeding. The questions at issue are whether a bankruptcy judge may certify a class action comprised of debtor-plaintiffs, and if so, whether the class certification in this case was proper. The 5th Circuit concluded that a bankruptcy judge may certify a class of debtors under appropriate circumstances but that the proposed class in this case does not satisfy the requirements of Federal Rule of Civil Procedure 23 and Federal Bankruptcy Rule of Procedure 7023. 5th U.S. Circuit Court of Appeals, No. 09-20415, 06-22-2010

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Published opinion

Before REAVLEY, PRADO, and OWEN, Circuit Judges.

This is an interlocutory appeal from the bankruptcy court’s certification of a class action in an adversary proceeding. The Plaintiffs-Appellees sought to represent a class of debtors who had filed Chapter 13 petitions in the United States Bankruptcy Court for the Southern District of Texas and who had home mortgages held or serviced by Defendant-Appellant Wells Fargo Bank, N.A. The questions at issue are whether a bankruptcy judge may certify a class action comprised of debtor-plaintiffs, and if so, whether the class certification in this case was proper. We conclude that a bankruptcy judge may certify a class of debtors under appropriate circumstances but that the proposed class in this case does not satisfy the requirements of Federal Rule of Civil Procedure 23 and Federal Bankruptcy Rule of Procedure 7023. We therefore VACATE the court’s class certification order.

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