TORITTO et al v. PORTFOLIO RECOVERY ASSOCIATES, LLC et al

Filing 17

OPINION FILED. Signed by Judge Robert B. Kugler on 4/5/16. (js)

NOT FOR PUBLICATION

(Doc. No. 14)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
Andrea N. TORITTO & Joshua TORITTO, :
:
Civil No. 14–7034 (RBK/JS)
Plaintiffs,
:
:
OPINION
v.
:
:
PORTFOLIO RECOVERY
:
ASSOCIATES, LLC & Carrie A. BROWN, :
:
Defendants. :
___________________________________ :
KUGLER, United States District Judge:
This action comes before the Court upon the motion for summary judgment of
Defendants Portfolio Recovery Associates, LLC (“PRA”) and Carrie A. Brown (“Ms. Brown”)
against Plaintiffs Andrea N. Toritto and Joshua Toritto. For the following reasons, Defendants’
Motion (Doc. No. 14) is GRANTED.
I.

SUMMARY JUDGMENT STANDARD
The court should grant a motion for summary judgment when the moving party “shows

that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter the
outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict
for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In
deciding whether there is any genuine issue for trial, the court is not to weigh evidence or decide
issues of fact. Id. at 248. Because fact and credibility determinations are for the jury, the nonmoving party’s evidence is to be believed and ambiguities construed in her favor. Id. at 255.
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Although the movant bears the burden of demonstrating that there is no genuine issue of
material fact, the non-movant likewise must present more than mere allegations or denials to
successfully oppose summary judgment. Id. at 256. The nonmoving party must at least present
probative evidence from which jury might return a verdict in his favor. Id. at 257. Furthermore,
the nonmoving may not simply allege facts, but instead must “identify those facts of record
which would contradict the facts identified by the movant.” Port Auth. of New York and New
Jersey v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002). The movant is entitled to
summary judgment where the non-moving party fails to “make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
II.

FACTUAL BACKGROUND
On July 26, 2011, Ms. Brown filed a complaint on behalf of PRA against Ms. Toritto in

the Superior Court of New Jersey, Law Division, Special Civil Part. See Dominczyk Decl., Ex.
B; Brown Decl. ¶ 7; Dreano Decl. ¶ 19. Ms. Toritto called PRA regarding the suit on August 8,
2011. Dreano Decl. ¶ 20; Andrea Toritto Decl. ¶ 6. The Superior Court of New Jersey granted
default judgment against Ms. Toritto in the amount of $4,233.95 on February 2, 2012. Id. ¶ 21;
Dominczyk Decl., Ex. B. A Special Civil Part Court Officer levied the fund in Ms. Toritto’s
account with Wells Fargo Bank, N.A. (“Wells Fargo”) on August 25, 2014. Dreano Decl., Exs.
A & B. PRA filed motions for turnover of funds on October 28, 2014 and January 9, 2015.
Dreano Decl. ¶¶ 25, 27. On November 13, 2014 and February 20, 2015, the Superior Court of
New Jersey granted PRA’s motions and ordered Wells Fargo to pay the levied funds to the
Special Civil Part Court Officer who made the levy. Id. ¶¶ 26, 28, Exs. D & E. Plaintiffs filed
their Complaint on November 10, 2014 (Doc. No. 1).

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III.

DISCUSSION
Plaintiffs bring suit under various provisions of the Fair Debt Collection Practices Act

(“FDCPA”), 15 U.S.C. § 1692 et seq. Plaintiffs assert that Defendants violated the FDCPA by
“attempting to collect an alleged debt beyond the statute of limitations” in the state court action.
See Compl. ¶ 31. This Court has subject matter jurisdiction over Plaintiffs’ claims only if
brought “within one year from the date on which the violation occurs.” See 15 U.S.C. §
1692k(d). See also McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756 F.3d 240, 245 n.8 (3d
Cir. 2014) (noting that district court’s jurisdiction was pursuant to Section 1692k(d)). Defendants
argue that Plaintiffs did not bring their claims within the one year statute of limitations. See
Defs.’ Br. at 11.
The Third Circuit’s decision in Schaffhauser v. Citibank is persuasive and on point. See
340 Fed. Appx. 128, 130–31 (3d Cir. 2009). In Schaffhauser, Citibank and its counsel were
granted summary judgment in a state court debt collection action against Annette and Steve
Schaffhauser. Id. at 129. The Schaffhausers subsequently brought suit under the FDCPA in
federal court, arguing that Citibank and its counsel “initiated and pursued the debt collection
actions in a deceptive and abusive manner and without legitimate cause[]” because the statute of
limitations on the debts at issue had expired. Id. at 129 & n.2. The District Court granted
summary judgment to Citibank’s counsel because it held that the FDCPA claims were barred by
the statute of limitations. Id. at 130. The Third Circuit affirmed on appeal, rejecting the
Schaffhausers’ argument that the “continuing violation” doctrine applied to “FDCPA claims
premised upon allegations of improper pursuit of debt collection litigation[.]” Id. at 130–31.
Such claims accrue either “upon filing the underlying collection action” or “the date on which
the purported debtor was served with the complaint.” Id. at 131. “The question of when a

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defendant learns that his conduct violates the FDCPA” is not relevant to the statute of limitations
analysis. See Glover v. F.D.I.C., 698 F.3d 139 (3d Cir. 2012) (FDCPA claims accrues on date of
violation).
As in Schaffhauser, Plaintiffs’ claims in this case are “premised upon allegations of
improper pursuit of debt collection litigation[.]” Id. at 130–31. Ms. Brown filed the underlying
collection action on behalf of PRA on July 26, 2011. Ms. Toritto acknowledged receipt of the
complaint on August 8, 2011 when she called PRA regarding the underlying collection action.
The statute of limitations on Plaintiffs’ claims therefore expired, at the latest, on August 8, 2012.
Plaintiffs did not file their Complaint in this Court until November 10, 2014, well after the
statute of limitations had expired. This Court therefore does not have jurisdiction under 15
U.S.C. § 1692k(d) to consider Plaintiffs’ FDCPA claims.
IV.

CONCLUSION
Because Plaintiffs’ FDCPA claims were not filed within the time required by 15 U.S.C. §

1692k(d), this Court does not have subject matter jurisdiction. Defendants’ Motion for Summary
Judgment is therefore GRANTED.

Dated:

04/05/2016

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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