FEUERSTACK v. WEINER, ESQ. et al

Filing 40

OPINION. Signed by Judge Stanley R. Chesler on 7/22/14. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EDWARD FEUERSTACK, on behalf of himself
and all others similarly situated,
Plaintiffs,

:
:
:
:
v.
:
:
STANLEY WEINER, ESQ. and JOHN DOES 1-25, :
:
Defendant.
:
:
:

Civ. No. 12-04253 (SRC)
OPINION

CHESLER, District Judge
This matter comes before the Court upon two motions for summary judgment, pursuant
to Federal Rule of Civil Procedure 56: 1) the motion filed by Defendant Stanley Weiner, Esq.
(“Defendant”) [ECF No. 35]; and 2) the cross-motion for summary judgment filed by Plaintiff
Edward Feuerstack (“Plaintiff”) [ECF No. 37]. The motions have been fully briefed, and the
Court has opted to rule on the papers submitted, and without oral argument, pursuant to Federal
Rule of Civil Procedure 78. For the reasons discussed below, this Court denies in part and grants
in part Defendant’s motion for summary judgment, and denies Plaintiff’s cross-motion for
summary judgment.
BACKGROUND
Plaintiff brings a class action lawsuit pursuant to Rule 23 of the Federal Rules of Civil
Procedure, alleging that Defendant sent abusive, deceptive, and unfair debt collection letters to
hundreds of people. (Complaint at 1-3). Plaintiff argues that these letters violated the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692.

1

Plaintiff received one of Defendant’s letters after Dr. William Silver treated the Plaintiff
at Good Samaritan Hospital in Suffern, New York. Dr. Silver charged Plaintiff $1,425.00 for his
services, but Plaintiff failed to pay the bill. To represent him with regard to the unpaid debt, Dr.
Silver hired Defendant as his attorney. On March 28, 2012, Defendant mailed the letter at issue
to Plaintiff, seeking to collect Plaintiff’s $1,450 debt owed to Defendant’s client, Dr. Silver.
Plaintiff alleges that the letter conveyed that a lawsuit had been commenced against him, when
no such action had been taken. (Complaint 6).
The letter appears on Defendant’s attorney letterhead and the subject line states “Re:
William Silver, M.D. v. Edward Feuerstack.” (ECF No. 35-13). The letter reads as follows:
Dear Mr. Feuerstack:
I am the attorney for William Silver, M.D. in regard to the above-entitled matter, who
advises me that there is presently the sum of $1,450.00 due my client, representing the
amount due with regard to services rendered, as appears by the verification of the debt
annexed hereto.
Unless, within thirty days after you receive this notice, you dispute the validity of the
debt, or any portion thereof, the debt will be assumed to be valid.
A lawsuit may be started if you do not make payment or satisfactory payment
arrangements. Such legal action will result in additional expenses to you which may
include court costs, Sheriff’s fees, Process Server fees, and other disbursements of a like
nature.
All checks, bank checks, or money orders should be forwarded directly to this firm and
made payable to STANLEY WEINER, As Attorney. Please give this matter your
immediate attention.
Sincerely yours,
STANLEY WEINER
This office is attempting to collect a debt from you. Any information obtained will be
used for that purpose.
(ECF No. 35-13). Defendant attached an invoice from Dr. Silver, verifying the amount due and
the creditor’s name. (ECF No. 35-13).

2

In his Complaint, Plaintiff specifically alleges that Defendant, through his letter, engaged
in three distinct kinds of conduct prohibited by the FDCPA: (1) falsely representing the legal
status of a debt by insinuating that Defendant had already initiated a lawsuit, (2) threatening
litigation in New Jersey when Defendant was not admitted to practice law in New Jersey, and (3)
failing to follow the proper notice requirements under the Act. Plaintiff raises claims pursuant to
15 U.S.C. §§ 1692d, 1692e, 1692f, 1692g and 1692j. Defendant moves for summary judgment
under Federal Rule of Civil Procedure 56(b). In response, Plaintiff cross-moves for summary
judgment.
ANALYSIS
I.

Legal Standard
The standard upon which a court must evaluate a summary judgment motion is well

established. Federal Rule of Civil Procedure 56(a) provides that summary judgment should be
granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202,
204 (3d Cir. 2000). A factual dispute is genuine if a reasonable jury could return a verdict for
the non-movant, and it is material if, under the substantive law, it would affect the outcome of
the suit. Anderson, 477 U.S. at 248. “In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be
drawn in his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting
Anderson, 477 U.S. at 255). The moving party bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

3

In this case, both Plaintiff and Defendant have moved for summary judgment. The
showing required of Plaintiff and Defendant to establish that there is no genuine issue of material
fact differs based on which party bears the burden of proof at trial. Plaintiff bears that burden on
the claims that remain active in this case. Thus, for Plaintiff to obtain summary judgment on his
claims, he must show that, on all the essential elements of the case on which he bears the burden
of proof at trial, no reasonable jury could find for Defendant. In re Bressman, 327 F.3d 229, 238
(3d Cir. 2003). In contrast, to prevail on their motion for summary judgment, Defendant must
point out to the district court “that there is an absence of evidence to support the nonmoving
party’s case.” Celotex, 477 U.S. at 325.
Once the moving party has properly supported that there is no triable issue of fact, the
nonmoving party “must do more than simply show that there is some metaphysical doubt as to
material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). The party opposing the motion for summary judgment cannot rest on mere allegations
and instead must present actual evidence that creates a genuine issue as to a material fact for
trial. Anderson, 477 U.S. at 248; see also Fed.R.Civ.P. 56(c) (setting forth types of evidence on
which nonmoving party must rely to support its assertion that genuine issues of material fact
exist). “[U]nsupported allegations . . . and pleadings are insufficient to repel summary
judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). “[T]he
nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to
allow a reasonable jury to find for him at trial.” Brewer v. Quaker State Oil Ref. Corp., 72 F.3d
326, 330 (3d Cir. 1995) (quoting Anderson, 477 U.S. at 248). If the nonmoving party has failed
“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, . . . there can be ‘no genuine

4

issue of material fact,’ since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Katz v. Aetna Cas. &
Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322–23).
II.

The FDCPA
Congress enacted the FDCPA in 1977 to address “abundant evidence of the use of

abusive, deceptive and unfair debt collection practices by many debt collectors.” 15 U.S.C.
§1692a. The Act provides consumers with a private cause of action against debt collectors who
fail to comply with the Act. 15 U.S.C. §1692k. Because the FDCPA is a remedial statute, the
Third Circuit construes its language broadly, so as to effect its purpose. See Brown v. Card
Service Center, 464 F.3d 450, 453 (3d Cir. 2006). Thus, in determining whether a debt
collector’s communication with a debtor violates the FDCPA, the court must analyze the
communication from the perspective of the “least sophisticated debtor.” See Wilson v.
Quadramed Corp., 225 F.3d 350, 354 (3d Cir. 2000); Graziano v. Harrison, 950 F.2d 107, 111
(3d Cir. 1991). This standard is meant “to ensure that the FDCPA protects all consumers, the
gullible as well as the shrewd.” Clomon v. Jackson, 998 F.2d 1314, 1318 (2d Cir. 1993).
“The least sophisticated debtor standard requires more than simply examining whether
particular language would deceive or mislead a reasonable debtor because a communication that
would not deceive or mislead a reasonable debtor might still deceive or mislead the least
sophisticated debtor.” Brown, 464 F.3d at 454 (citing Quadramed, 225 F.3d at 354) (internal
quotation marks and citation omitted). Thus, “[t]he FDCPA requires that collection letters must
present certain information in a non-confusing manner.” Morse v. Kaplan, 468 F. App’x 171,
172 (3d Cir. 2012). A debt collector’s communication with a debtor is considered deceptive
under the Act if “it can be reasonably read to have two or more different meanings, one of which

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is inaccurate.” Rosenau v. Unifund Corp., 539 F.3d 218, 222 (3d Cir. 2008). While the least
sophisticated debtor standard protects naïve consumers, “it also prevents liability for bizarre or
idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness and
presuming a basic level of understanding and willingness to read with care.” Quadramed, 225
F.3d at 354-355. “Even the least sophisticated debtor is bound to read collection notices in their
entirety.” Campuzano-Burgos v. Midland Credit Mgmt., 550 F. 3d 294, 299 (3d Cir. 2008).
III.

The Cross-Motions for Summary Judgment
a. False Representation that a Lawsuit was Filed
Plaintiff claims that Defendant violates § 1692e, § 1692d, § 1692f, and § 1692j because

Defendant’s letter gave a false impression that a lawsuit had been filed against Plaintiff. Plaintiff
argues that Defendant used his position as an attorney to make confusing statements about the
status of the litigation in an attempt to collect the debt. (Complaint at 8). Defendant, on the
other hand, moves for summary judgment, arguing that his letter complied with the FDCPA and
did not make a false representation that a lawsuit had already been filed. Plaintiff cross-moves.
1. Section 1692e
Section 1692e states that “[a] debt collector may not use any false, deceptive, or
misleading representation or means in connection with the collection of any debt.” 15 U.S.C. §
1692e. The statute enumerates a non-exhaustive list of specific practices that are considered
“false or misleading.” Plaintiff claims that Defendant engaged in three of these specific
practices: (1) falsely representing “the character, amount or legal status of any debt” in violation
of 15 U.S.C. § 1692e(2)(a); (2) threatening “to take any action that cannot legally be taken or
that is not intended to be taken” in violation of 15 U.S.C. § 1692e(5); and (3) using a “false
representation or deceptive means to collect or attempt to collect any debt or to obtain

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information concerning a consumer” in violation of 15 U.S.C. § 1692e(10). 1 Plaintiff argues that
Defendant’s use of attorney letterhead and the subject line “Re: William Silver, M.D. v. Edward
Feuerstack” was misleading because it deceived Plaintiff into believing that a lawsuit had been
initiated against him when no such action had been taken. (Complaint at 6). He argues that the
letter contains “contradictory and confusing language” about the status of litigation when it
states: “a lawsuit may be started if [Plaintiff] do[es] not make payment or satisfy payment
arrangements.” Id. (emphasis added). Defendant, on the other hand, argues that the sentence “a
lawsuit may be started” means that “if no response was received by the debtor, [Defendant]
would pursue further legal action on behalf of Dr. Silver.” (ECF No. 35-4, at 9). Defendant
argues that “the lease [sic] sophisticated debtor would not be deceived or mislead by Mr.
Weiner’s March 28, 2012 letter.” (ECF No. 35-4, at 1).
“Abuses by attorney debt collectors are more egregious than those of lay collectors
because a consumer reacts with far more duress to an attorney’s improper threat of legal action
than to a debt collection agency committing the same practice. A debt collection letter on an
attorney’s letterhead conveys authority and credibility.” Crossley v. Lieberman, 868 F.2d 566,
570 (3d Cir. 1989). The Court must read a collection notice “in its entirety” – including the
subject line and text – to determine whether the body of the letter clarifies any suggestion that a
lawsuit is pending in other parts of the letter. Philip v. Sardo & Batista, P.C., CIV.A. 11-4773
(SRC), 2011 WL 5513201, at *5 (D.N.J. Nov. 10, 2011); see also Pipiles v. Credit Bureau of

1

Plaintiff also claims Defendant violated § 1692e(3). Section 1692e(3) prohibits “[t]he false
representation or implication that any individual is an attorney or that any communication is
from an attorney.” 15 U.S.C. § 1692e(3). Plaintiff admits, however, that Defendant is an
attorney and Plaintiff does not contest that Defendant’s letter was from an attorney. (Complaint
at 2, 5). Therefore, this Court grants summary judgment in favor of the Defendant regarding the
§ 1692e(3) claim.

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Lockport, Inc., 886 F.2d 22, 25 (2d Cir. 1989) (considering “[t]he clear import of the language,
taken as a whole” in determining whether the communication threatens “that some type of legal
action has already been or is about to be initiated and can be averted from running its course only
by payment.”). 2
Here, a reasonable juror could find that the debt collection letter, read in its entirety, gives
an impression of a lawsuit’s existence. The letter is written on attorney letterhead, includes the
caption “William Silver, M.D. v. Edward Feuerstack” and begins with the statement “I am the
attorney for William Silver, M.D. in regard to the above-entitled matter. . . .” (ECF No. 35-13).
Defendant’s opening line of the letter potentially reinforces the message of a pending lawsuit
because the phrase “above-entitled matter” refers back to the subject line and might confuse a
reader into thinking that the litigation matter has already begun. Moreover, the letter states that:
“A lawsuit may be started if you do not make payment or satisfactory payment arrangement.
Such legal action will result in additional expenses to you, which may include court costs,
Sheriff’s fees, Process Server fees, and other disbursements of a like nature.” (ECF No. 35-13)
(emphasis added). The letter can be reasonably read to have two or more different meanings,
one of which is that a lawsuit has already been filed. A reasonable juror could therefore
conclude that, to the least sophisticated debtor, Defendant’s letter falsely represented the legal

2

Both Plaintiff and Defendant argue that the question of whether language in a collection letter
violates the FDCPA is a question of law. (ECF No. 35-4, at 7; ECF No. 36, at 4). Neither
Plaintiff nor Defendant, however, brings any support for this rule. While the question of whether
language in a collection letter contradicts or overshadows a validation notice is a question of law,
Quadramed, 225 F.3d at 353, neither party shows that this rule applies more broadly. In fact,
courts have held that material fact issues exist when language in a collection letter is unclear as
to whether a debt collection letter threatens legal action and whether that legal action was
intended against the debtor. See Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1177-78 (11th Cir.
1985) (“[W]e are confident that whether the ‘least sophisticated consumer’ would construe [the
debt collector’s] letter as deceptive is a question for the jury.”).

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status of the debt in violation of § 1692e(2)(a), threatened unintended legal action in violation of
§ 1692e(5), or used deceptive means to collect a debt in violation of § 1692e(10).
Defendant argues that this case is analogous to Philip, in which this Court held that a debt
collector letter did not violate 15 U.S.C. § 1692e because the body of the letter corrected any
ambiguity that arose from the subject line of the letter. 2011 WL 5513201, at *5-*6. In that
case, the subject line, like here, used “vs.” between the parties’ names, suggesting that a lawsuit
was already pending. Id. at *5. Yet, the first line of the letter stated: “The above account has
been turned over to this office for collection,” emphasizing that the author of the letter was a debt
collector, rather than emphasizing his position as an attorney. Philip v. Sardo & Batista, Civil
No. 11-4773, ECF Document #1, filed on Aug. 18, 2011 (emphasis added). Moreover, the letter
clearly stated that “[u]nless, I receive a check . . . within thirty (30) days after you receive this
letter, suit will be initiated against you in the appropriate court and the amount due will be
increased by court costs, attorney’s fees, and interest as may be permitted by Law.” Id. The
Court thus held that “even by the unsophisticated consumer standard, ‘will institute suit’ is more
than sufficient to negate any confusion arising from the subject line of the letter.” Philip, 2011
WL 5513201, at *5.
Here, in contrast to Philip, a reasonable juror could conclude that the body of the letter
does not cure the impression of an existing lawsuit, but actually reinforces that message. Aside
from the implication created by subject line “William Silver, M.D. v. Edward Feuerstack” and
the attorney letterhead, Defendant specifically identifies himself as an attorney in the first
sentence of the letter – not as a debt collector, as in Philip. Defendant refers to the “aboveentitled matter” and his “client,” which could further mislead the least sophisticated debtor into
believing that a lawsuit had been initiated. These references in connection with the adversarial

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connotation of the subject line strongly suggest the present existence of a lawsuit. The statement
that a lawsuit “may” be started is inconsistent with the earlier suggestion that a suit had already
been initiated. While it is possible that a consumer might read its language as indicating that a
lawsuit had not yet been filed, a reasonable juror could nevertheless find that the letter misleads
the least sophisticated debtor into believing that a lawsuit has already been filed. Therefore, this
Court denies Defendant’s motion for summary judgment with regard to FDCPA §§ 1692e(2)(a),
1692e(5), and 1692e(10). This Court also denies Plaintiff’s cross-motion for summary
judgment, as he has not demonstrated that there is no genuine factual dispute as to whether the
letter would mislead the least sophisticated debtor.
2. Section 1692d
Plaintiff argues that because the letter conveys that litigation has commenced, it violates
§ 1692d. Defendant, on the other hand, argues that he did not violate § 1692d because the
conduct prohibited by § 1692d includes “threats or use of violence, obscene language, or abusive
telephone calls,” none of which is alleged. (ECF No. 35-4, at 7).
Section 1692d states that “[a] debt collector may not engage in conduct the natural
consequence of which is to harass, oppress, or abuse any person in connection with the collection
of a debt” and enumerates a non-exhaustive list of practices considered harassing, oppressive, or
abusive. 15 U.S.C. § 1692d. The list of prohibited behavior includes:
(1) The use or threat of use of violence or other criminal means to harm the physical
person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural consequence of which
is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a
consumer reporting agency or to persons meeting the requirements of section 1681a(f) or
1681b(3) of this title.
(4) The advertisement for sale of any debt to coerce payment of the debt.

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(5) Causing a telephone to ring or engaging any person in telephone conversation
repeatedly or continuously with intent to annoy, abuse, or harass any person at the called
number.
(6) Except as provided in section 1692b of this title, the placement of telephone calls
without meaningful disclosure of the caller's identity.
15 U.S.C. § 1692d. Courts generally allow juries to determine whether debt collector conduct is
considered annoying, abusive, or harassing. Derricotte v. Pressler & Pressler, LLP, CIV.A. 101323, 2011 WL 2971540, at *3 (D.N.J. July 19, 2011) (citing Jeter v. Credit Bureau, Inc., 760
F.2d 1168, 1179 (11th Cir. 1985)). Nevertheless, if the debt collector’s conduct “has—or does
not have—the natural consequence of harassing, oppressing or abusing the consumer as a matter
of law,” summary judgment is appropriate. Dericotte, 2011 WL 2971540, at *3 (citing Regan v.
Law Offices of Edwin A. Abrahamsen & Assocs., CIV.A. 08-5923, 2009 WL 4396299, at *6
(E.D.Pa. Dec. 1, 2009)). “Deception or falsehood alone . . . is wholly different from the conduct
condemned in subsections (1) through (6) of § 1692d.” Jeter v. Credit Bureau, Inc., 760 F.2d
1168, 1179-80 (11th Cir. 1985). Therefore, even if a letter that threatens to sue a consumer may
violate § 1692e, it does not necessarily violate § 1692d. Id.
Here, the record lacks evidence that Defendant engaged in the conduct proscribed by the
statute; he did not use violence or obscene language, publish any list or advertisement, or make
repetitive phone calls to Plaintiff. Defendant sent a debt collection letter that may have
threatened suit to the least sophisticated debtor, but this letter does not have the “natural
consequence of harassing, oppressing or abusing” the consumer. Even though this is potentially
deceptive conduct under § 1692e, no reasonable juror could find this conduct to be abusive under
§ 1692d. This Court therefore grants summary judgment for Defendant and denies Plaintiff’s
cross-motion for summary judgment with regard to the § 1692d claim.

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3. Section 1692f
Plaintiff argues that Defendant’s letter uses “unfair or unconscionable means to collect or
attempt to collect” the debt, in violation of 15 U.S.C. § 1692f. Section 1692f enumerates a list of
prohibited conduct that is considered “unfair and unconscionable.” Threatening litigation is not
one of the prohibited actions listed. Section 1692f “allows a court to sanction improper conduct
the FDCPA fails to address specifically.” Turner v. Prof'l Recovery Servs., Inc., 956 F. Supp. 2d
573, 580 (D.N.J. 2013) (citing Adams v. Law Offices of Stuckert & Yates, 926 F.Supp. 521, 528
(E.D.Pa. 1996)). “Accordingly, [c]ourts have . . . routinely dismissed § 1692f claims when a
plaintiff does not identify any misconduct beyond that which [he] assert[s] violate[s] other
provisions of the FDCPA.” Ali v. Portfolio Recovery Associates, LCC, CIV. 13-4531 (KM),
2014 WL 1767564, at *4 (D.N.J. May 2, 2014) (citing Corson v. Accounts Receivable Mgmt.,
Inc., 13-01903 JEI/, 2013 WL 4047577, at *21 (D.N.J. Aug. 9, 2013)). Plaintiff does not allege
unfair or unconscionable conduct that is not already addressed by his § 1692e claims, and thus
his § 1692f claims are redundant. This Court therefore grants summary judgment in favor of
Defendant regarding the § 1692f claim and denies Plaintiff’s cross-motion regarding the same
claim.
4. Section 1692j
Plaintiff finally argues that Defendant violates 15 U.S.C § 1692j by mentioning a lawsuit
in his debt collection letter. According to § 1692j(a),
It is unlawful to design, compile, and furnish any form knowing that such form would be
used to create the false belief in a consumer that a person other than the creditor of such
consumer is participating in the collection of or in an attempt to collect a debt such
consumer allegedly owes such creditor, when in fact such person is not so participating.

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15 U.S.C § 1692j(a). Nevertheless, “attorneys who, inter alia, litigate collection actions are debt
collectors under the FDCPA.” Bock v. Pressler & Pressler, LLP, CIV. 11-7593 (KM MCA),
2014 WL 2937929, at *7 (D.N.J. June 30, 2014), as corrected (July 1, 2014), as corrected (July
7, 2014) (citing Heintz v. Jenkins, 514 U.S. 291, 294 (1995)). Here, Plaintiff concedes in his
Complaint that “Upon information and belief, Weiner is primarily in the business of collecting
debts allegedly due to another and is therefore a ‘Debt Collector’ as that term is defined by 15
U.S.C. § 1692a(6).” (Complaint at 2). Defendant was thus clearly participating in the collection
of the debt and did not give a false impression that he was participating. This Court grants
summary judgment for the Defendant, and denies Plaintiff’s cross-motion for summary
judgment, regarding the § 1692j claim.
b. Defendant’s Lack of Admission to Practice Law in New Jersey
Plaintiff claims that the letter violates the FDCPA because it gave a false impression that
a lawsuit would begin in New Jersey when Defendant did not have the authority to take legal
action in New Jersey. (Complaint at 6). Plaintiff contends that because Defendant is not
admitted to practice law in New Jersey, 3 Defendant’s letter violates § 1692d, § 1692e, and §
1692f. Defendant moves for summary judgment and Plaintiff cross-moves.
This Court grants Defendant’s motion with regard to the specific conduct for two reasons.
First, Defendant’s letter never specifies that the legal action will take place in New Jersey, and
thus it cannot be said that the letter deceptively informed Plaintiff that a lawsuit had been or
would be filed in New Jersey. See ECF No. 35-13. Next, Plaintiff lacks a legal basis for his

3

Defendant concedes that he is not admitted to practice law in New Jersey. (ECF No. 35-4, at
9).

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argument. 4 Plaintiff points to no statutory provision or precedential cases providing that there is
a violation of the FDCPA when an attorney sends a debt collection letter to a debtor residing in a
jurisdiction where the attorney is not admitted. 5 Plaintiff lacks a legal basis to show that this
practice “harass[es], oppress[es], or abuse[s]” the debtor in violation of § 1692d, that it is “false,
deceptive, or misleading” in violation of § 1692e, or that is “unfair or unconscionable” in
violation of § 1692f. Therefore, this Court denies Plaintiff’s cross-motion for summary
judgment and grants Defendant’s motion for summary judgment regarding the issue of whether
Defendant deceptively claimed a lawsuit could be started in New Jersey when he was not
admitted to practice in New Jersey.
c. The Improper Notice Claim
Section 1692g(a) sets forth the information that must be included in a debt collection
notice:
Within five days after the initial communication with a consumer in connection
with the collection of any debt, a debt collector shall, unless the following information is
contained in the initial communication or the consumer has paid the debt, send the
consumer a written notice containing—
(1) the amount of the debt;
4

Defendant argues that Dr. Silver could have filed suit in New Jersey by hiring local counsel to
work with Defendant in pursuing legal action against Plaintiff in New Jersey or that Defendant
could have moved to be admitted pro hac vice. Defendant also argues that Defendant could have
filed suit in New York because Defendant is a licensed attorney in New York and there was a
contract signed for the doctor’s services in New York. See ECF No. 35-4. These arguments
appear to be valid and provide an additional basis for granting Defendant’s motion.
5

Plaintiff cites the non-binding decision in Rosa v. Gaynor, 784 F. Supp. 1 (D. Conn. 1989) to
argue that “a debt collector’s letter may be considered deceptive when it threatens legal action by
a lawyer not admitted in the jurisdiction where the Plaintiff resides.” (ECF No. 36, at 6).
Plaintiff’s reliance on Rosa is misplaced. The letter in Rosa specifically suggested the locations
where a lawsuit could be filed by stating: “any remedy may be filed against you that is available
to attorneys in your area.” Id. Here, the letter makes no mention of where the lawsuit could be
filed, and therefore does not deceptively suggest that a lawsuit could be filed in a particular
jurisdiction. Furthermore, the objection of representation in Rosa focused on the false
impression of an immediate lawsuit, rather than the jurisdictional issue. Id.
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(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the
notice, disputes the validity of the debt, or any portion thereof, the debt will be
assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within
the thirty-day period that the debt, or any portion thereof, is disputed, the debt
collector will obtain verification of the debt or a copy of a judgment against the
consumer and a copy of such verification or judgment will be mailed to the
consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day
period, the debt collector will provide the consumer with the name and address of
the original creditor, if different from the current creditor.
15 U.S.C. § 1692g(a). Plaintiff asserts that Defendant violated 1692g(a)(4) by failing to notify
Plaintiff that Plaintiff could submit a written request to Defendant to provide verification of the
debt within a specified time period. (Complaint at 6).
Plaintiff’s argument lacks merit because Defendant attached a copy of an invoice,
authenticating the amount being collected and the creditor’s name, without Plaintiff’s request.
Defendant did not violate the statute by failing to notify Plaintiff that he could request
verification, because Defendant sent verification even without Plaintiff’s request. Plaintiff does
not dispute this in his reply brief or cross-motion. See ECF No. 36. “[U]nsupported . . .
pleadings are insufficient to repel summary judgment.” Schoch, 912 F.2d at 657. Therefore,
there is no material fact at issue, and this Court grants Defendant’s motion for summary
judgment regarding Plaintiff’s § 1692g improper notice claim.

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CONCLUSION
For all of the forgoing reasons, the Court denies in part and grants in part Defendant’s
motion for summary judgment and denies Plaintiff’s cross-motion for summary judgment.
Specifically, both Plaintiff’s and Defendant’s motions will be denied as to the 15 U.S.C. §§
1692e(2)(a), 1692e(5), and 1692e(10) claims. Defendant’s motion will be granted as to the
claims pursuant to 15 U.S.C. §§ 1692e(3), 1692d, 1692f, 1692g, and 1692j.
An appropriate Order accompanies this Opinion.

___s/ Stanley R. Chesler____
STANLEY R. CHESLER
United States District Judge
Dated: July 22, 2014

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