9:10-cv-01756-MBS Date Filed 01/03/11 Entry Number 18 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION

Jonathon Rowles, individually and )

as class representative of others ) Civil Action No.: 9:10-cv-01756-MBS
similarly situated )
)
Plaintiff, )
) REPLY MEMORANDUM IN SUPPORT
v. ) OF MOTION FOR
) PRELIMINARY INJUNCTION
Chase Home Finance, LLC, )
)
Defendant. )
______________________________ )

The question before the Court is whether the Defendant should be preliminarily enjoined

from issuing what it characterizes as “refund” correspondence to putative class members

implicated by the instant lawsuit until the Court may rule upon the pending Rule 23(d) motion

filed by the Plaintiff seeking Court-established guidelines for any such communications.

The Defendant, Chase Mortgage, LLC, argues that the Plaintiff has failed to establish the

requisite elements of a motion for preliminary injunction. For the following reasons, Chase is

incorrect and a preliminary injunction should be ordered.

ANALYSIS

I. The Plaintiff is Likely to Succeed on the Merits

The parties disagree as to the appropriate context in which to consider whether the

underlying matter to which this motion pertains is “likely to succeed on the merits.” Defendant

wrongly insists that the likelihood of the success of the Plaintiff‟s claims must drive the Court‟s

consideration while, in reality, the Court should consider the likelihood of success of the pending

Rule 23(d) motion.

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Typically, a motion for preliminary injunction pertains to some action implicating the

ultimate substantive rights at issue in the underlying litigation. Such was the situation in Real

Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342 (4th Cir. 2009).

Because a preliminary injunction affords, on a temporary basis, the

relief that can be granted permanently after trial, the party seeking
the preliminary injunction must demonstrate by “a clear showing”
that, among other things, it is likely to succeed on the merits at
trial.

Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 345 (4th Cir. 2009) cert.

granted, judgment vacated, 130 S. Ct. 2371, 176 L. Ed. 2d 764 (U.S. 2010) and adhered to in part

sub nom. The Real Truth About Obama, Inc. v. F.E.C., 607 F.3d 355 (4th Cir. 2010). Here, the

underlying dispute giving rise to the motion for preliminary injunction is not the case itself, but

rather is the Plaintiff‟s pending motion for a Rule 23(d) order governing the parties‟ contact with

putative class members.

In this unique situation, it is useful to consider the underlying purpose of a preliminary

injunction. As long recognized by the Fourth Circuit,

The purpose of the preliminary injunction is to preserve the status

quo until the rights of the parties can be fairly and fully
investigated and determined by strictly legal proofs and according
to the principles of equity.

Meiselman v. Paramount Film Distrib. Corp., 180 F.2d 94, 97 (4th Cir. 1950). The “rights of the

parties” pertaining to the instant motion are those implicated by Rule 23(d)—not those litigated

within the underlying suit. Along the same lines, the preservation of the status quo sought by the

plaintiff is only to the extent necessary for the Court to issue an order in response to the

Plaintiff‟s fully-briefed motion—rather than a restriction of action pending trial. Thus it is

appropriate to analyze the “likelihood of success” within the context of the pending Rule 23(d)

motion rather than the body of the lawsuit itself.

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Pertinent authority establishes that the “likelihood of success” analysis is to be

considered in tandem with considerations of the potential for irreparable injury to the moving

party. As the Eastern District of North Carolina observed,

a correlation exists between the likelihood of plaintiff's success on

the merits and the probability of irreparable injury to it. As the
court in Blackwelder noted, if the likelihood of success is great, the
need for showing the probability of irreparable injury is less.
Conversely, if the likelihood of success is remote, there must be a
strong showing of the probability of irreparable injury to justify
issuance of the injunction.

Combined Ins. Co. of Am. v. Investors Consol. Ins. Co., 499 F. Supp. 484, 487 (E.D.N.C. 1980).

The Fifth Circuit Court of Appeals has described the interrelation of the two criteria as “a sliding

scale … balancing the hardships associated with the issuance or denial of a preliminary

injunction with the degree of likelihood of success on the merits.” Florida Med. Ass'n, Inc. v. U.

S. Dept. of Health, Ed. & Welfare, 601 F.2d 199, 203 (5th Cir. 1979), citing State of Texas v.

Seatrain International, S. A., 518 F.2d 175, 180 (5th Cir. 1975); Siff v. State Democratic

Executive Committee, 500 F.2d 1307 (5th Cir. 1974).

The Defendant does not dispute that the Court possesses the authority, under Fed. R. Civ.

P. 23(d), to issue guidelines governing all parties‟ communications with putative class members.

Indeed, the Supreme Court recognized that authority in Gulf Oil Co. v. Bernard, 452 U.S. 89,

101 S. Ct. 2193, 68 L. Ed. 2d 693 (1981). Rather the Defendant argues that, under the present

circumstances, there is no justification for any court supervision whatsoever of the parties‟

contact with putative class members—including the Defendant‟s proposed “refund”

correspondence.

The analysis of the likelihood of success of the Plaintiff‟s rule 23(d) motion is closely

linked to the more thorough review of irreparable injury, discussed below.

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To the extent that the likelihood of success of the underlying case is relevant to the

motion for preliminary injunction, the Defendant‟s opinion of the Plaintiff‟s case seems to be

entirely inconsistent with its pressing desire to hastily mail “refunds” to the various putative class

members. Nevertheless, Defendant insists that a “significant threshold question” remains as to

whether a private right of action exists under the SCRA. Incontestably, the issue is now pending

before the Fourth Circuit. A substantial majority of federal courts, however, have recognized a

private right of action.1 Furthermore, the legislative history of the recent amendment of the

SCRA establishes that Congress intended to clarify the existence of a private right of action,

rather than create a new right.2 The Defendant‟s questioning of the ability to certify a class of

SCRA plaintiffs is remarkably premature (particularly in view of the fact that the Defendant has

not so much as answered the complaint), but ample precedent exists of certified SCRA class

1
See Moll v. Ford Consumer Finance Co., Inc., 1998 U.S. Dist. LEXIS 3638, 1998 WL 142411
(N.D. Ill. 1998) (Implied private cause of action because legislative history of section 526
showed that Congress intended to give benefit to servicemembers not available to civilians);
Marin v. Armstrong, 1998 U.S. Dist. LEXIS 22792 (N.D. Tex. 1998) (Implied right of action in
section 518 because granted right upon military members not available to public); Cathey v. First
Republic Bank, 2001 U.S. Dist. LEXIS 13150 (W.D. La. 2001); Linscott v. VectorAerospace,
2006 U.S. Dist. LEXIS 6287, (D. Or., May 12, 2006);, Batie v. Subway Real Estate Corp., 2008
U.S. Dist. LEXIS 11458 (N.D. Tex. February 15, 2008); Hurley v. Deutsche Bank Trust
Company, 2008 U.S. Dist. LEXIS 80526 (W.D. Mich. September 30, 2008); and Clauer v.
Heritage Lakes Homeowners Association, Inc., 2010 U.S. Dist. LEXIS 8947 (E. Dist TX January
14, 2010).
2
See Testimony of North Carolina Congressmen Brad Miller, 13th District, and Walter B. Jones,
3rd District before the House Committee on Rules on Tuesday, June 23, 2009 on H.R. 2647
National Defense Authorization Act for Fiscal Year 2010, on the Amendment to FY10 National
Defense Authorization Act.

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actions3 and SCRA actions filed as class complaints but resolved prior to a ruling upon

certification or still currently pending.4

II. The Plaintiff and Putative Class Members are Likely to Suffer Irreparable
Harm in the Absence of Preliminary Relief

The Defendant‟s memorandum in opposition fails to address the extraordinarily delicate

situation in which the putative class members, such as Captain Rowles, find themselves. Rather

Defendant insists that Captain Rowles “offers only speculation as to how Chase‟s proposal for

returning potential overpayments to individuals would in any way [be abusive, coercive or

misleading].” (Dkt. 17, p. 2) Substantial prejudice, however, stems from the combination of the

class members facing the enormous pressure of serving on active duty in the military while being

asked to consider “refund” correspondence that may affect the both the substantive rights of the

class members to monetary recovery and/or the procedural rights of the same individuals to

participate in this class action.

The Defendant‟s response to these concerns is the inclusion of a “Frequently Asked

Questions” toll free phone number within its correspondence. Despite federal courts‟ grave

concerns regarding unilateral, in-person contact, see, e.g., Kleiner v. First Nat. Bank of Atlanta, 751

F.2d 1193, 1202-03 (11th Cir. 1985), the Defendant insists that its staff members will doggedly

adhere to a prepared script in all conversations with putative class members. What the Defendant

3
See Hormel v. U S, 17 F.R.D. 303 (S.D.N.Y. 1955); Emmet v. Whittier, 164 F. Supp. 563
(D.D.C 1958).
4
See, e.g., Fourte v. Countrywide Home Loans, Inc., 2:07-cv-01363-PGS-ES (D.N.J.)(Motion to
Certify currently pending); Venneman v. BMW Financial Services NA, LLC, 2:09-cv-05672-
PGS-ES (D.N.J.)(Case pending as putative class action; no motion to certify yet filed); Moll v.
Ford Consumer Finance Co., Inc., 1998 U.S. Dist. LEXIS 3638, 1998 WL 142411; 1:97-cv-
05044 (N.D. Ill. 1998) (Stipulation of Dismissal filed after motion to dismiss SCRA claim was
denied).

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does not seem to grasp, however, is that it is further burdening men and women in uniform who

have already been badgered by phone calls from Chase employees with a marked inability to

“stick to the script.” Attached as “Exhibit A” is the affidavit of Captain Rowles in which he

explains the frustrating nature of his contact with the Defendant over the past several years.

These calls were received during all hours of the day, including
some as early as 4:00 a.m. Each call was from a different person,
scripted in some manner and apparently with no knowledge of the
situation about which they were calling…

(Exhibit A, Paragraph 4)

Collection calls from Chase would often come at 7:00 a.m. and
sometimes on Saturdays. They would come during the middle of
the work day while I was preparing for a flight mission brief with
my senior officers or other pilots, or when I was on the flight line.

(Exhibit A, Paragraph 7)

I found that over the last two years the collections department of
Chase could find me any time of the day through numerous phone
numbers—they called my mother, called me at work, at home,
during dinner, while I was sleeping, while my children were
sleeping, and left many messages in order to try to collect on an
account that had been improperly processed and no one was
looking to help or fix it.

(Exhibit A, Paragraph 13) Despite Chase‟s extended history of deplorable conduct, Defendant

insists that Captain Rowles “has not demonstrated any specific evidence of abuse or coercion.”

(Dkt. 17, p. 8) But the entire purpose of the SCRA is to prevent our servicemen and women from

being burdened with the stress of resolving matters pertaining to their mortgages, car loans, and

other debts. With the Defendant‟s suggested correspondence, even if we presume that Chase‟s

employees will abandon their aggressive tactics and adhere to the Defendant‟s proposed “script,”

men and women like Captain Rowles who are actively defending our country will be given two

options: 1) cash a check with little or no explanation as to why you have received it or what you

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may be waiving; or 2) remove yourself from the line of active duty in order to contact chase via

telephone.

In disputing the threat of harm stemming from the proposed “refund” payments,

Defendant insists that “at worst, putative class members could be made whole with the refunds.”

(Dkt. 17, p. 14) The first flaw with this argument is a class member being “made whole” is

subject to the whim and whimsy of the Defendant. Both Captain Rowles and the Court, it seems,

should accept whatever definition of “whole” the Defendant chooses though the Defendant

declines to produce to either the Plaintiff or the Court a spreadsheet of putative class members,

the damages suffered, and the refunds offered.5 More revealing, however, is the fact that Chase

disputes the putative class members‟ entitlement to punitive and consequential damages, despite

the fact that such damages are explicitly provided for within the SCRA.

The penalties provided under subsection (e) are in addition to and

do not preclude any other remedy available under law to a person
claiming relief under this section, including any award for
consequential or punitive damages.

50 App. U.S.C.A. § 527(f). As Plaintiff noted in his initial motion, even District Courts

approving the issuance of “refund” correspondence have noted the real potential for abuse where

“the class action vehicle offer[s] the possibility of a more favorable result than the proposed

settlement.” Cox Nuclear Med. v. Gold Cup Coffee Services, Inc., 214 F.R.D. 696, 699 (S.D.

Ala. 2003).

The Defendant insists that such concerns are of no importance here because “the fact that

a borrower cashed a check for his potential actual damages neither waives his request for other

5
Undoubtedly such a document exists. Assuming the Defendant was being truthful when it
informed the Plaintiff that it planned to begin processing checks two weeks ago, at a bare
minimum a calculation of refunds and a mailing list is in the possession of the Defendant.

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damages, nor determines the total amount of such damages.” (Dkt. 17, p. 14) This assertion

implicates both legal and practical concerns that directly implicate the rights of the putative class

members under the instant action.

First, barring a specific stipulation from the Defendant to the contrary, whether the

acceptance of a “refund” check constitutes a waiver of additional rights (with or without a

release) may implicate a fifty state survey of common and statutory law. “A district court's duty

to determine whether the plaintiff has borne its burden on class certification requires that a court

consider variations in state law when a class action involves multiple jurisdictions.” Castano v.

Am. Tobacco Co., 84 F.3d 734, 741 (5th Cir. 1996). For example, it is clear that the affirmative

defense of accord and satisfaction is a matter of state law. See Richards v. Delta Air Lines, Inc.,

453 F.3d 525, 528 (D.C. Cir. 2006)(“Richards failed to meet this standard because „Delta's

accord and satisfaction affirmative defense ... will require the application of varying state laws

and a case-by-case factual inquiry.‟”) Defendant emphasizes that it is not requiring the putative

class members to sign a release in exchange for the “refund,” but it is clear that “release and

accord and satisfaction are separate contractual defenses.” Holland v. United States, 621 F.3d

1366, 1377 (Fed. Cir. 2010). Thus, even if no releases are executed in exchange for refund

checks, the putative class members could adversely impact their ability to participate in a class

action if their negotiation of the refund check implicates issues of state law (including, but not

necessarily limited to, accord and satisfaction).6

6
This is not a hypothetical concern. The State of Utah, for example, has held that the negotiation
of a refund check may constitute accord and satisfaction even when the individual negotiating
the check intended to seek additional amounts through litigation.

[W]e find that Estate Landscape's negotiation of the $8,613 check

satisfied Mountain Bell's obligation, regardless of Estate
Landscape's subjective intent to recover the full amount through
litigation. While it is true that, as with any contract, the parties
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But even more practical concerns are at stake. First, notwithstanding Defendant‟s

assurances to the contrary, there is no assurance that all of the putative class members suffering

financial injury from the Defendant‟s SCRA violations will be “made whole.”

Furthermore, the Defendant‟s refusal to acknowledge the availability of punitive and

consequential damages to victims of SCRA violations stands in stark contrast with the plain

language of the statute: “[t]he penalties provided under subsection (e) are in addition to and do

not preclude any other remedy available under law to a person claiming relief under this section,

including any award for consequential or punitive damages.” 50 App. U.S.C.A. § 527(f).

For some reason—instead of focusing its efforts on the arguments advanced by the

Plaintiff—Defendant chose to oppose this motion also by making several thinly-veiled slaps at

Captain Rowles and Plaintiff‟s counsel: “Interestingly, plaintiff‟s concern is not so much that

Chase will communicate with putative class members, but that the communication does not

mention plaintiff‟s counsel or the litigation” (Dkt. 17, p. 12); “this Court should reject the notion

that harm to the fee recovery for counsel would remotely justify the relief sought here” (Dkt. 17,

p. 15); and “the only other purpose notice could serve is to solicit clients.” (Dkt. 17, p. 18) These

personal slights of Captain Rowles and the undersigned attorneys are both unfortunate and

must consent to an accord and satisfaction, a party's conduct may

be conclusive proof of acceptance. Here, Estate Landscape's
negotiation of the check constituted acceptance of the accord and
satisfaction as a matter of law.

Estate Landscape & Snow Removal Specialists, Inc. v. Mountain States Tel. & Tel. Co., 844
P.2d 322, 330 (Utah 1992). It is important to note that, even assuming that every putative class
member could overcome such legal challenges, the mere fact that their claim may invoke an
individualized consideration of state law could effectively prohibit them from class participation.
According to one source, there are three major military installations in the State of Utah and
4,844 active duty personnel, not including an additional 13,583 citizens serving in the Reserve
and National Guard. http://usmilitary.about.com/library/milinfo/statefacts/blut.htm (last visited
January 3, 2011). At this point in the litigation, there is no way for the Plaintiff to determine how
many of these 18,427 members of our military may be putative class members.

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unnecessary. It goes without saying that Captain Rowles‟ true “concern”—and that of all of the

putative class members currently or formerly on active duty overseas—is of a much more

fundamental nature than others could hope to comprehend. To hint otherwise is nothing short of

insulting to Captain Rowles.

`As to the “purpose” of Plaintiff‟s counsel, it should be noted that the motion for a

preliminary injunction did not rely—at all—upon some sort of protection of attorneys‟ fees. This

stands in stark contrast to the case, cited by Defendant, of Boulas v. J.P. Morgan Chase & Co., et

al., No. 1:09-CV-00348-PAG (N.D. Ohio). There the Plaintiff sought to prohibit payments to

putative class members solely based upon a supposed threat to attorneys‟ fees and was roundly

rebuffed. Particularly in this jurisdiction the wisdom of such a strategy is hard to comprehend as

it is well-established that contingency fee agreements such as that sought to be enforced within

Boulas are not binding upon a district court in its determination of appropriate attorneys‟ fees in

the class action context. In re MRRM, P.A., 404 F.3d 863, 867 (4th Cir. 2005), citing Barber v.

Kimbrell's, Inc., 577 F.2d 216, 226 (4th Cir.1978).

III. Balance of Equities Tips in Favor of Preliminary Injunction

Defendant “balances the equities” by insisting that there is no threat of harm to the

putative class while “there is likely to be harm to Chase‟s normal course of business, were it

restricted from sending such refunds.” (Dkt. 17, p. 22) Evidence of such harm is found in

paragraph 3 of the DeAtley affidavit which describes Chase‟s normal course of business as

including the issuing of refunds where “overpayments” have been discovered. Several problems

exist with this contention.

First, the proposed preliminary injunction does not “restrict” Chase from issuing refunds.

If, in fact, the Court grants the requested injunction Chase will be prohibited from contacting

putative class members only while Plaintiff‟s Rule 23(d) motion remains pending. Furthermore,
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the pending motion does not request a total prohibition of contact with putative class members

and does not seek—in any way—to prevent the issuance of Defendant‟s proposed “refunds.”7

Secondly, the time period in which Defendant‟s actions will be restricted is very limited.

As of today, Plaintiff has filed its rule 23(d) motion (Dkt. 15), Defendant has responded with a

memorandum in opposition (Dkt. 17), and Plaintiff‟s reply is due to be filed on January 10, 2011.

Thus this matter will be fully briefed and ready for argument within the next seven (7) days. Any

harm identified by the Defendant that will result from this brief delay of the issuance of its

“refunds” is, no doubt, minimal and is outweighed by the very real threat of confusion,

misrepresentation and a compromise of the rights of the putative class members.

IV. Preliminary Injunction is in the Public Interest

As was noted in the Plaintiff‟s initial memorandum, the underlying purpose of the

Servicemembers Civil Relief Act is

to provide for, strengthen, and expedite the national defense through

protection extended by this Act [said sections] to servicemembers of the
United States to enable such persons to devote their entire energy to the
defense needs of the Nation.

50 App. U.S.C.A. § 502(1). Since the advent of the SCRA in 1940, numerous times the Supreme Court

and the Fourth Circuit have paid particular deference to the policies embraced by the Act. “The Soldiers'

and Sailors' Civil Relief Act is always to be liberally construed to protect those who have been

obliged to drop their own affairs to take up the burdens of the nation.” Boone v. Lightner, 319

7
What the Plaintiff proposed to Chase as alternatives to unilateral contact constituted—in the
opinions of Plaintiff‟s counsel—a middle ground between unbridled contact with putative class
members and an absolute prohibition of contact. It was hoped that these suggestions might serve
as a starting point for the crafting of “a carefully drawn order that limits speech as little as
possible, consistent with the rights of the parties under the circumstances.” Gulf Oil at 102, 101
S. Ct. at 2201.

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U.S. 561, 575, 63 S. Ct. 1223, 1231, 87 L. Ed. 1587 (1943); see also Le Maistre v. Leffers, 333

U.S. 1, 6, 68 S. Ct. 371, 373, 92 L. Ed. 429 (1948); California v. Buzard, 382 U.S. 386, 395, 86

S. Ct. 478, 484, 15 L. Ed. 2d 436 (1966); United States v. Onslow County Bd. of Educ., 728 F.2d

628, 636 (4th Cir. 1984). The purpose of the instant motion is to provide the Court with adequate

time to consider and craft an appropriate order that simultaneously preserves the policies of the

Act and the Defendant‟s freedom of expression. The minimal restriction upon the parties in the

meantime is justified by these venerable goals.

V. A Nominal Bond is Appropriate

Despite the limited reach of the proposed preliminary injunction, Defendant requests that

the Plaintiff “post a cash bond that encompasses both the total refund amount, as well as any pre-

judgment interest.” (Dkt. 17, p. 23) The First Circuit has recognized that the purpose of security

deposit required to obtain a preliminary injunction is for payment of such costs and damages as

may be incurred or suffered by any party who is found to have been wrongfully enjoined or

restrained. Northeast Airlines, Inc. v. Nationwide Charters & Conventions, Inc., 413 F.2d 335

(1st Cir. 1969). Considering this underlying purpose, there is no readily identifiable reason as to

why the Plaintiff should be required to post “the total refund amount” as this figure does not

represent a potential cost or damage but rather an expenditure already allocated for payment.

Along the same lines, “prejudgment interest” seems inappropriate as no judgment has been

issued in this case and—if we are to believe Defendant—no judgment is likely to accrue.

At any rate, as noted in the initial memorandum, the Fourth Circuit has noted that when

the risk posed by a preliminary injunction to the restrained party is low a nominal bond of zero

dollars ($0.00) may be appropriate. Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 424

n. 3 (4th Cir. 1999). Plaintiff asserts that such is the case here.

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Respectfully submitted,

s/ Richard A. Harpootlian
Richard A. Harpootlian (Fed. I.D. # 1730)
Graham L. Newman (Fed. I.D. # 9746)
RICHARD A. HARPOOTLIAN, P.A.
1410 Laurel Street
Post Office Box 1040
Columbia, South Carolina 29202
(803) 252-4848
(803) 252-4810 (facsimile)
rah@harpootlianlaw.com
gln@harpootlianlaw.com

William B. Harvey, III (Fed. I.D. # 1762)

HARVEY & BATTEY, P.A.
1001 Craven Street
Post Office Drawer 1107
Beaufort, South Carolina 29901-1107
(843) 524-3109
(843) 524-6973 (facsimile)
bharvey@harveyandbattey.com

ATTORNEYS FOR PLAINTIFF AND

PLAINTIFF CLASS

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