Rebollo v. AllianceOne Receivables Management, Inc.

Filing 19

MEMORANDUM--This matter is before the Court on Plaintiff's Motion for Summary Judgment, filed on November 11, 2012. (ECF No. 11 ). The Court will therefore deny Plaintiff's Motion for Summary Judgment without prejudice at this time. Signed by District Judge Jean C. Hamilton on 06/03/2013. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JENNIFER REBOLLO,

)
)
)
)
)
)
)
)
)
)

Plaintiff(s),
vs.
ALLIANCEONE RECEIVABLES
MANAGEMENT, INC.,
Defendant(s).

Case No. 4:12CV1245 JCH

MEMORANDUM
This matter is before the Court on Plaintiff’s Motion for Summary Judgment, filed on
November 11, 2012. (ECF No. 11). Plaintiff seeks summary judgment in her favor on her
“overshadowing” and “refusal to validate” claims under § 1692g of the Fair Debt Collection
Practices Act (“FDCPA”) with respect to liability and statutory damages only.
By way of background, Plaintiff incurred a debt for home cable television service that gave
rise to Defendant’s collection activities.

(Plaintiff’s Statement of Uncontroverted Facts in

Conjunction with Her Motion for Summary Judgment, ECF No. 11-1, ¶ 5). Defendant sent Plaintiff
a dunning letter dated May 14, 2012, which Plaintiff received on or about May 18, 2012. (Id., ¶ 6).
Plaintiff called Defendant about the debt on May 18, 2012. (Id., ¶ 7). Plaintiff then brought this
action against Defendant on May 22, 2012, in the Circuit Court of St. Louis County, State of
Missouri. (Notice of Removal, ECF No. 1, ¶ 4). Defendant removed this action on July 11, 2012,
on the basis of federal question jurisdiction under 28 U.S.C. §§ 1331, 1441(a) and 15 U.S.C. § 1692,
et seq. Plaintiff’s Complaint contains a single count for “violations” of the FDCPA.
The Court may grant a motion for summary judgment if “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
As to Plaintiff’s overshadowing claim, the Court finds Plaintiff has not shown that she is
entitled to judgment as a matter of law. Section 1692g of the FDCPA provides that a debt collector
must send a consumer a written statement explaining that if the consumer notifies the debt collector
in writing within a thirty-day period that the debt is disputed, the debt collector will obtain
verification of the debt and will mail a copy of such verification to the consumer. “Any collection
activities and communication during the 30-day period may not overshadow or be inconsistent with
the disclosure of the consumer’s right to dispute the debt or request the name and address of the
original creditor.” 15 U.S.C. § 1692g(b). Defendant’s dunning letter contained the requisite
statement. Plaintiff has not shown that Defendant’s subsequent activity overshadowed her right to
dispute the debt or request the name and address of the original creditor under § 1692g(b).
As to Plaintiff’s refusal to validate claim, the Court finds Plaintiff’s claim is not cognizable
under the FDCPA. A validation notice is the portion of a collection letter containing the information
required by § 1692g(a). See Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 88 (2d Cir. 2008).
Section 1692g(a)(4) permits a debtor to request a verification of the debt discussed in the validation
notice. Thus, the FDCPA does not recognize a claim for “refusal to validate.”
The Court will therefore deny Plaintiff’s Motion for Summary Judgment without prejudice
at this time.

Dated this 3rd day of June, 2013.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
-2-