Tzanetis v. Weinstein & Riley P S

Filing 67

ORDER denying 64 Motion to Alter Judgment; denying 64 Motion for Reconsideration re 64 MOTION to Alter Judgment MOTION for Reconsideration re 63 Judgment, 62 Order on Motion for Summary Judgment, filed by Kara A Tzanetis. Signed by Judge Dominic J. Squatrito on 7/26/11. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

KARA TZANETIS,
Plaintiff,
v.
WEINSTEIN & RILEY, P.S.,
Defendant.

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No. 3:09-CV-00413 (DJS)

MEMORANDUM OF DECISION AND ORDER
The plaintiff, Kara Tzanetis, brings this action against
the defendant, Weinstein & Riley, P.S. (“W&R”), alleging that a
demand letter she received from W&R violated the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692; the
Connecticut Creditor Collection Practices Act, Conn. Gen. Stat.
§ 36a-645; the Consumer Collection Agency Act, Conn. Gen. Stat.
§ 36a-800; and the Connecticut Unfair Trade Practices Act
(“CUTPA”), Conn. Gen. Stat. § 42-110a.

Jurisdiction exists

under 28 U.S.C. § 1331, 15 U.S.C. § 1692k(d), and 28 U.S.C. §
1367(a).

Now at bar is Tzanetis’ Motion for Reconsideration of

this Court’s October 26, 2010, ruling, which denied her motion
for summary judgment and granted W&R’s cross-motion for summary
judgment on all claims in her complaint.

For the following

reasons, Tzanetis’ motion (dkt. # 64) is DENIED.

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I. BACKGROUND1
Tzanetis is an individual residing in Connecticut.
a Seattle-based bankruptcy law firm.

W&R is

On June 3, 2008, W&R sent

a demand letter to Tzanetis which read as follows:
Weinstein & Riley P.S., (hereafter “W&R”) is national
legal counsel for DODEKA, L.L.C., the owner of your
credit card account with CHASE BANK USA N.A.. W&R and
its local legal counsel have been instructed to
commence legal action against you if a prompt
resolution of your debt obligation does not occur.
Demand is now made for payment of your debt with a
balance of $14,728.08 as of June 3, 2008. The amount
due on the day you pay may be greater because of
additional interest, late fees, attorney fees and
costs, and other charges that may vary from day to
day.
Please confirm with our law firm the exact
amount due and owing on the day you make payment.
We trust that you would rather resolve this matter
amicably.
You should, within thirty (30) days from
receipt of this letter, either make arrangements to
settle this matter or dispute the debt as set forth
below. Please call the following toll free number so
that we can discuss some amicable resolution[.]
If extenuating circumstances exist for paying less
than the amount owed, we still would appreciate your
call to resolve this matter.
Please call the
following toll free number[.]
If you do not pay the debt, make satisfactory payment
arrangements, or dispute the validity of the debt, W&R
will take appropriate action to collect this debt by
all lawful means and through all remedies available at
law, including bringing a suit against you by our
local legal counsel.
If you request proof of the debt or the name and
address of the original creditor within the thirty
(30) day period that begins with your receipt of this

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Unless otherwise noted, the following is drawn from filings related to
the motion at bar.

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letter, the law requires W&R to suspend its efforts
(through litigation or otherwise) to collect the debt
until it mails the requested information to you.
Thank you for your prompt attention to this matter. I
sincerely hope we can work this out swiftly and
amicably without the necessity of further action.
IMPORTANT NOTICE: Federal law gives you 30 days after
you receive this letter to dispute the validity of the
debt or any part of it. Unless you dispute this debt,
or any portion of it, within 30 days from receipt of
this notice, we will assume the debt to be valid. If
you notify us within 30 days after receipt of this
notice that you dispute the debt, or any portion of
it, we will obtain verification of the debt or copy of
the judgment against you and mail you a copy. And, if
you make a request within 30 days of receipt of this
notice, we will provide you with the name and address
of the original creditor, if the original creditor is
different from the current creditor.
(Dkt. # 57-2.)

On June 25, 2008, Tzanetis replied by way of a

letter seeking further detail.

On July 21, 2008, W&R responded

by way of a letter confirming the account’s origin and balance.
Tzanetis then filed this action.
On January 21, 2010, Tzanetis moved for summary judgment on
two grounds.

First, she took issue with the demand letter’s

passage stating: “W&R and its local legal counsel have been
instructed to commence legal action against you if a prompt
resolution of your debt obligation does not occur.”

She alleged

that this passage constituted a false representation of the
character, amount, or legal status of her debt in violation of §
1692e(2)(A), or an unfair or unconscionable means to collect or
attempt to collect a debt in violation of § 1692f.

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Specifically, she pointed to W&R’s response to one of her
interrogatories which asked W&R to “[s]tate the date of all
instructions to your local legal counsel regarding plaintiff’s
account.”

(Dkt. # 57-2.)

She argued that by responding that

“[n]o such instructions were given, as no lawsuit was ever
filed,” W&R “has admitted that its statement that ‘local legal
counsel have been instructed to commence legal action’ was
false.”

(Dkt. # 57-1, p. 4, dkt. # 60, p. 5.)

The Court rejected this first argument.

Specifically, the

Court found that given its context, the passage at issue
“unambiguously conveys that the instruction to commence legal
action to which it refers came from Dodeka, LLC—W&R’s client.”
(Dkt. # 62, p. 8.)

The Court further found that Tzanetis’

interrogatory “asked W&R to disclose its own instructions to
Miller, and understandably, was so construed by W&R.”
62, p. 8.)

(Dkt. #

Given these findings, the Court concluded that W&R’s

response to Tzanetis’ interrogatory was not inconsistent with
the passage in the demand letter with which she took issue, nor
could it support her claim that the passage somehow constituted
a false or misleading representation of the character, amount,
or legal status of her debt in violation of § 1692e(2)(A), or an
unfair or unconscionable means to collect or attempt to collect
a debt in violation of § 1692f.

(See dkt. # 62, p. 8.)

Second, Tzanetis took issue with the demand letter’s

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passage stating: “The amount due on the day you pay may be
greater because of additional interest, late fees, attorney fees
and costs, and other charges that may vary from day to day.”
She alleged that this passage also constituted a false or
misleading representation of the character, amount, or legal
status of her debt in violation of § 1692e(2)(A), and an
unauthorized “collection” in violation of § 1692f(1).2
Specifically, she observed that W&R “could not add attorney’s
fees or costs unless and until it obtained judgment,” and argued
that by failing to spell out this point, the passage at issue
implied that attorney’s fees and costs would be added to the
amount due even if she voluntarily repaid, thus rendering it
false, deceptive, and misleading.

(Dkt. # 57-1, p. 4-7.)

The Court also rejected this second argument.
Specifically, the Court found that given its context, the
passage at issue was not susceptible to the reading Tzanetis
suggested, nor could it be deemed “misleading to the least
sophisticated consumer.”

(Dkt. # 62, pp. 10-11.)

The Court

also found that the passage at issue did not constitute the
“collection” of attorney’s fees and costs which, in any event,
are expressly authorized under Connecticut law, and thus could

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15 U.S.C. § 1692f(1) specifies that “[t]he collection of any amount
(including any interest, fee, charge, or expense incidental to the principal
obligation) unless such amount is expressly authorized by the agreement
creating the debt or permitted by law” is an “unfair or unconscionable means
to collect or attempt to collect [a] debt.”

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not support her claim that it somehow violated § 1692f(1).
(Dkt. # 62, p. 11.)
In sum, the Court concluded that under the least
sophisticated consumer standard, neither of the two passages
with which Tzanetis took issue constituted a false, deceptive,
or misleading representation in violation of § 1692e or an
unfair or unconscionable means to collect or attempt to collect
a debt in violation of § 1692f.

Accordingly, the Court denied

Tzanetis’ motion for summary judgment and granted W&R’s motion
for summary judgment with respect to those claims.
pp. 11-12.)

(Dkt. # 62,

Tzanetis now moves for reconsideration of these

rulings pursuant to Rules 54(b) and 59(e) of the Federal Rules
of Civil Procedure.3
II. ANALYSIS
The standard for granting a motion for reconsideration is
“strict.”

Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d

Cir. 1995).

Such a motion “will generally be denied unless the

moving party can point to controlling decisions or data that the
court overlooked — matters, in other words, that might
reasonably be expected to alter the conclusion reached by the
court.”

Id. See Lora v. O’Heaney, 602 F.3d 106, 111 (2d Cir.

3
Having granted summary judgment in W&R’s favor with respect to all of
Tzanetis’ federal law claims, the Court declined to further exercise
supplemental jurisdiction over Tzanetis’ remaining state law claims and
dismissed the same without prejudice. (Dkt. # 62, p. 13.) Tzanetis’ Motion
for Reconsideration does not question the dismissal of her state law claims,
which therefore will remain undisturbed.

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2010).

“The major grounds justifying reconsideration are an

intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent
manifest injustice.”

Virgin Atl. Airways, Ltd. v. Nat’l

Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992); Burrell v.
United States, 467 F.3d 160, 165 n.3 (2d Cir. 2006) (citations
and quotation marks omitted).

Conversely, a “motion to

reconsider should not be granted where the moving party seeks
solely to relitigate an issue already decided.”
F.3d at 257.

Shrader, 70

See Official Comm. of Unsecured Creditors of Color

Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir.
2003) (“where litigants have once battled for the court’s
decision, they should neither be required, nor without good
reason permitted, to battle for it again.” (citation and
quotation marks omitted)).
Here, Tzanetis points to no new controlling law or evidence
warranting reconsideration.4

Rather, she forcefully repeats the

two arguments she had previously presented in support of her
motion for summary judgment.
First, Tzanetis again takes issue with the following
passage: “W&R and its local legal counsel have been instructed

4
The only relevant binding authority upon which Tzanetis’ Motion for
Reconsideration relies is Bentley v. Great Lakes Collection Bureau, Inc., 6
F.3d 60 (2d Cir. 1993), and Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993).
(Dkt. # 64-1, pp. 1, 6.) Tzanetis previously relied on both of these
decisions in support of her Motion for Summary Judgment. (See dkt. # 57-2,
pp. 3, 4, 5.)

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to commence legal action against you if a prompt resolution of
your debt obligation does not occur.”

(Dkt. # 57-2.)

Specifically, she argues that “[t]here is no dispute that the
important half of the statement (instruction to local counsel to
sue) was not true, by local counsel’s own sworn statement,” and
thus, that W&R “falsely assert[ed] that instructions had been
given to local counsel to commence litigation.”

(Dkt. # 64-1,

p. 2.)
This first argument was previously considered by the Court,
but was ultimately rejected.

(See dkt. # 62, p. 8.)

Specifically, the Court explained that W&R’s response to
Tzanetis’ interrogatory was not inconsistent with the passage at
issue, and thus could not support her claims.

(See id.)

Second, Tzanetis again takes issue with the following
passage: “The amount due on the day you pay may be greater
because of additional interest, late fees, attorney fees and
costs, and other charges that may vary from day to day.

Please

confirm with our law firm the exact amount due and owing on the
day you make payment.”

(Dkt. # 57-2.)

Specifically, she argues

that the least sophisticated consumer could interpret this
passage as meaning that “attorney’s fees would change ‘from day
to day,’” which would be false because attorney’s fees “are
fixed as a maximum after judgment.”

(Dkt. # 64-1, pp. 5-6.)

She maintains that this passage “can be considered deceptive”

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because it is “open to more than one reasonable interpretation,
at least one of which is inaccurate.”

(Dkt. # 64-1, p. 6.)

This second argument was also previously considered by the
Court, and was also rejected.

(See dkt. # 62, pp. 10-11.)

Specifically, the Court explained that given its context, the
passage was not susceptible to the reading suggested by
Tzanetis, nor could it mislead the least sophisticated consumer,
and thus could not support her claims.

(See id.)

The Court has reviewed all filings related to Tzanetis’
motion for reconsideration, and concludes that by reasserting
her two previously presented arguments without identifying any
new evidence or intervening change in the law that could
reasonably be expected to alter the Court’s conclusions,
Tzanetis “seeks solely to relitigate . . . issue[s] already
decided.”

Shrader, 70 F.3d at 257.

Accordingly, her motion

must be denied.
III. CONCLUSION
For the foregoing reasons, Tzanetis’ Motion for
Reconsideration (dkt. # 64) is DENIED.

SO ORDERED this 26th day of July, 2011.

___________/s/DJS____________
DOMINIC J. SQUATRITO
UNITED STATES DISTRICT JUDGE

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