NASRUDDIN v. HARRISON
OPINION. Signed by Judge Kevin McNulty on 10/11/2017. (ld, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 16-935 (KM)
MICHAEL HARRISON, ESQ.,
The plaintiff, Nasr Nasruddin, brings this action pro se
collection attorney, Michael Harrison, Esq., claiming breach of the federal Fair
Debt Collection Practices Act (FDCPA), 15 U.S.C.
§ 1692. Now before the Court
is Mr. Harrison’s motion (ECF no. 22) for summary judgment, pursuant to Fed.
R. Civ. P. 56. For the reasons expressed below, Mr. Harrison’s motion for
summary judgment (ECF no. 22) is GRANTED.
In August 2012, Mr. Nasruddin received medical services at Englewood
Hospital Medical Center. (ECF no. 22-2 at 2) In connection with the
Mr. Harrison submitted a “Statement of Facts” which is mainly a summary of
matters of public record, consisting of the relevant procedural history in New Jersey
state court. (ECF no. 22-2 at 2 to 4)
received, Mr. Nasruddin signed Englewood Hospital and Medical Center’s
“consent for treatment, assignment of insurance benefits, release of
information and financial agreement” form, dated August 13, 2012. (Ex. B, ECF
no. 22-4; see also ECF no. 26-1)
Paragraph 7 of the form, entitled “Anesthesiology, Pathology, Emergency
Room, Radiology, Cardiology, and other professional fee assignment and
In the event the patient is entitled to benefits of any type arising
out of any policy of insurance covering the patient, the said
benefits are also assigned to the Anesthesiologist, Pathologist,
Emergency Room Physician, Radiologist, Cardiologist, and/or other
appropriate physician, I understand that it is the responsibility of
the patient to obtain information from his/her insurance company
to determine if the above mentioned physicians are participating in
the patient’s insurance plan. Participation by Englewood Hospital
and Medical Center in any given insurance plan does not indicate
participation by the above mentioned physicians, I understand
that I am responsible to the above mentioned physicians for any
charges not covered by my insurance plan.
(Ex. B, ECF no. 22-4 at 2)
Paragraph 8, labeled “Financial Agreement”, states
The undersigned agrees, whether he/she signs as agent or patient,
that in consideration of the services rendered to the patient,
he/she hereby individually obligates himself/herself to pay the
account of the Medical Center in accordance with the regular rates
and forms of the Medical Center. I understand that I am
responsible to the Medical Center for any charges billed to and not
covered by any insurance carrier(s), including any charges denied
by insurance carrier for no pre-certification or referral. Should the
account be referred for collection after a default, the undersigned
agrees to pay costs of collection, including reasonable attorney’s
fees. All delinquent accounts bear interest at legal rates.
(Ex. 3, ECF no. 22-4 at 2)
On or about August 14, 2013, Mr. Harrison, a collection attorney, mailed
an initial communication to Mr. Nasruddin seeking to collect the amount due
and owing to Cardiac Surgery Group of Hackensack2 (“Cardiac Surgery Group”)
for medical services provided to Mr. Nasruddin. (ECF no. 22-5, Ex. C, Cert. of
Harrison ¶4) Mr. Nasruddin did not make a payment on the medical bill. (ECF
no. 22-5, Ex. C, Cert. of Harrison ¶5)
On or about July 2, 2015, on behalf of Cardiac Surgery Group, Mr.
Harrison filed a lawsuit in the Superior Court of New Jersey, Law Division,
Bergen County, Special Civil Part, against Mr. Nasruddin for non-payment of
bills for services rendered to Mr. Nasruddin at Englewood Hospital and Medical
Center. (ECF no. 22-2 at 2; ECF no. 22-5, Ex. C, Cert. of Harrison ¶6)
During that litigation, Mr. Harrison provided Mr. Nasruddin with a copy
of Englewood Hospital and Medical Center’s “consent for treatment, assignment
of insurance benefits, release of information and financial agreement” form,
dated August 13, 2012 and signed by Mr. Nasruddin. (ECF no. 4-1 at 2) He
also entered the form into evidence at a subsequent trial. (ECF no. 4-1 at 3) Mr.
Harrison, acting on behalf of Cardiac Surgery Group, ultimately prevailed and
obtained a judgment against Mr. Nasruddin in the amount of $15,000. (ECF
no. 22-2 at 2; ECF no. 22-5, Ex. C, Cert. of Harrison ¶7) Nothing further about
the causes of action asserted or the state court’s decision appears in the
B. Procedural History
On February 19, 2016, Mr. Nasruddin, acting pro Se, initiated this
federal-court action against the attorney, Mr. Harrison. The complaint alleges
that, in connection with the events leading to the state court judgment against
Mr. Nasruddin, Mr. Harrison failed to comply with the FDCPA, 15 U.S.C.
1692. (Compl., ECF no. 1) In particular, Mr. Nasruddin asserts that Mr.
Harrison violated six sections of the FDCPA: Sections 1692e, 1692f(l), 1692g,
1692j, 1692k, and 1692i.
Mr. Harrison does not explain the relationship between the Englewood Hospital
Medical Center and the Cardiac Surgery Group of Hackensack, which he says was the
creditor and plaintiff in the state action. Moreover, none of the exhibits he provided
give the Court any further insight on the relationship.
The allegation here seems to be that, despite receiving letters from Mr.
Nasruddin contesting the debt, Mr. Harrison failed to supply him with required
information: specifically, any written agreement between himself and Cardiac
Surgery Group. Mr. Nasruddin’s main argument focuses on the identity of the
creditor. In particular, Mr. Nasruddin alleges that the only agreement he ever
signed was with Englewood Hospital and Medical Center. However, the creditor
on the debt upon which he was sued was Cardiac Surgery Group, not
Englewood Hospital and Medical Center.
Mr. Nasruddin asserts that under the FDCPA, he is entitled to see a copy
of the alleged payment agreement between himself and Cardiac Surgery Group.
He further argues that such an agreement did not exist and that therefore,
under the FDCPA, Mr. Harrison had no basis to file a lawsuit against him in
New Jersey state court. Mr. Nasruddin also objects to Mr. Harrison’s tactics
and the state court judge’s decisions in the state action. Mr. Nasruddin now
asks this Court to vacate the state court judgment because the judgment
violates the FDCPA by not being based on a signed contract between Mr.
Nasruddin and Cardiac Surgery Group. (Compl. ¶V, Relief).
On March 4, 2016, Mr. Harrison filed a motion to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)(6). (ECF no. 4) On March 21, 2016, Mr.
Nasruddin filed a response (ECF no. 5), and Mr. Harrison filed a reply (ECF no.
6). Mr. Nasruddin then filed what amounts to a surreply (ECF no. 8). On
September 27, 2016, this Court issued a memorandum opinion and order
denying Mr. Harrison’s motion to dismiss the complaint. (ECF no. 9)
Two days after I issued my decision, on September 29, 2016, Mr.
Harrison filed an answer to the complaint. (ECF no. 10) On November 29,
2016, the parties filed a joint discovery plan. (ECF no. 13) On December 8,
2016, Mr. Nasruddin sent a letter to Magistrate Judge James B. Clark, III and
Mr. Harrison, requesting a copy of the payment agreement between himself and
Cardiac Surgery Group, and the name and address of the creditor and the
amount of debt. (ECF no. 15) Mr. Nasruddin also reiterated his legal claims
under the FDCPA. (ECF no. 15)
On March 15, 2017, Mr. Harrison filed a motion to dismiss for failure to
comply with discovery obligations pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v).
(ECF no. 17) The next day, Judge Clark filed a letter-order reminding the
parties that a January 3, 2017 Scheduling Order required the parties to submit
a letter outlining discovery disputes before filing a motion. (ECF no. 18; see
ECF no. 16 ¶7). Accordingly, Judge Clark terminated Mr. Harrison’s motion to
dismiss3, and ordered the parties to submit letters. (ECF no. 18)
Pursuant to Judge Clark’s order, on March 20, 2017, Mr. Harrison filed a
letter regarding discovery disputes, including having not received Mr.
Nasruddin’s answers to the interrogatories. (ECF no. 19) On March 23, 2017,
Mr. Nasruddin filed an answer to Mr. Harrison’s interrogatories. (ECF no. 20)
On April 12, 2017, Mr. Harrison filed the motion for summary judgment,
pursuant to Fed. R. Civ. P. 56, that is now before the Court. (ECF no. 22) He
attaches three exhibits to the brief. (ECF nos. 22-3 to -5) Exhibit A is a copy of
Mr. Nasruddin’s answer to Mr. Harrison’s interrogatories. (ECF no. 22-3; see
also ECF no. 20) Exhibit B is a copy of Englewood Hospital and Medical
Center’s “consent for treatment, assignment of insurance benefits, release of
information and financial agreement” form signed by Mr. Nasruddin and dated
August 13, 2012. (ECF no. 22-4; see also ECF no. 26-1) Exhibit C is a
certification from Mr. Harrison. (ECF no. 22-5)
On May 19, 2017, Mr. Nasruddin filed a letter in response to Mr.
Harrison’s motion. (ECF no. 25) On May 31, 2017, Mr. Nasruddin filed a
On April 11, 2017, after Judge Clark terminated Mr. Harrison’s motion to
dismiss, Mr. Nasmddin filed a response to the motion and attached exhibits. (ECF no.
23) Mr. Harrison submitted a reply on April 21, 2017, explaining that “jajs the only
motion filed by the defendant that is currently before the Court is defendant’s motion
for summary judgment, for the purposes of this reply, the defendant will assume ECF
23 is the plaintiffs opposition to the defendant’s motion for summary judgment.” (ECF
The copy provided by Mr. Harrison includes three pages, and the copy provided
by Mr. Nasruddin includes two pages.
second letter in response to Mr. Harrison’s motion. (ECF no. 26) He attached
five exhibits to the letter. (ECF nos. 26-1 to 26-5)5
Exhibit 1 includes the following seven documents: 1) a copy of the online
profile of the state judge, who handled the medical billing lawsuit in state
court, from the website “The Robing Room”; 2) a copy of Englewood Hospital
and Medical Center’s “consent for treatment, assignment of insurance benefits,
release of information and financial agreement” form signed by Mr. Nasruddin
and dated August 13, 2012; 3) a letter from Equifax to Mr. Nasruddin
regarding Mr. Nasruddin’s “reinvestigation request” on the collection agency
information on his account6; 4) a January 17, 2017 letter from Chase Bank
informing Mr. Nasruddin that his credit line was reduced to $4,300, based in
part on Mr. Nasruddin’s credit report showing a collection balance that is “too
high compared to credit limits”; 5) a May 14th letter7 from Discover rejecting
Mr. Nasruddin’s application for a personal loan, based in part on the existence
of a “derogatory public record or collection filed”; 6) a February 2, 2016 letter
from Chase informing Mr. Nasruddin that it received a garnishment order and
therefore placed his accounts on hold; and 7) an August 29, 2015 letter from
American Express informing Mr. Nasruddin that his credit line was reduced to
$1,000, based in part on “a serious delinquency on one of more of [his]
accounts.” (ECF no. 26-1)
Exhibit 2 includes copies of letters Mr. Nasruddin sent to Harrison,
Judge Clark (ECF no. 15), and the Bergen County Superior Court, and mail
return receipts from letters Mr. Nasruddin sent to Mr. Harrison. (ECF no. 26-2)
Exhibit 3 includes three copies of reminders mailed by the Bergen County
A side-by-side comparison of Mr. Nasruddin’s May 19, 2017 and the May 31,
2017 submissions shows that they are nearly identical, the differences being that the
May 19, 2017 submission includes two additional pages (labeled “Page 2 of 19”, and
“Page 3 of 19”), and that the May 31, 2017 submission attached exhibits. To the extent
they differ, I consider them both. They were not filed timely, which I will overlook in
light of the plaintiffs pro se status.
This document is identified as being one of two pages. Mr. Nasruddin only
provided the first page.
The information identifying the year does not appear on the copy.
Special Civil Part informing Mr. Nasruddin of upcoming court dates. (ECF no.
26-3) Exhibit 4 includes tracking information for certified mail sent to this
court, and a certified mail receipt. (ECF no. 26-4) Exhibit 5 includes tracking
information for certified mail sent to Harrison, and a certified mail receipt.
(ECF no. 26-5)
ROOKER-FELDMAN/SUBJECT MATTER JURISDICTION
Mr. Nasruddin alleges that this Court has federal question jurisdiction
under 28 U.S.C.
§ 1331, based upon his FDCPA claims. See 15 U.S.C.
§1692k(d) (allowing FDCPA claims to “be brought in any appropriate United
States district court without regard to the amount in controversy
required, however, to raise sua spont& any other grounds that may appear to
bar the court’s subject matter jurisdiction. See Mt. Healthy City Sch. Dist. Bd. of
Ethic. u. Doyle, 429 U.s. 274, 278 (1977); Nesbit v. Gears Unlimited, Inc., 347
F.3d 72, 76—77 (3d Cir. 2003). Upon a closer look of the parties’ submissions,
it appears that some if not all of Mr. Nasruddin’s claims would be barred by the
Rooker-Feldman doctrine, which is of jurisdictional stature. See District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker a
Fidelity Trust Co., 263 U.S. 413, 416 (1923).
A federal district court does not sit to hear appeals from state court
judgments. Rocker-Feldman operates to prevent a disgruntled party in state
court litigation from collaterally attacking the results of that litigation in federal
court, claiming constitutional or other error. See also B.S. v. Somerset County,
704 F.3d 250 (3d Cir. 2013). To put it another way, Rocker-Feldman bars
“cases brought by state-court losers complaining of injuries caused by statecourt judgments rendered before the district court proceedings commenced
and inviting district court review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Indus., Inc., 544 U.s. 280, 284 (2005).
Mr. Harrison does not raise jurisdictional arguments in his submissions to this
The Rooker-Feidman doctrine applies when, “in order to grant the federal
plaintiff the relief sought, the federal court must determine that the state court
judgment was erroneously entered or must take action that would render that
judgment ineffectual.” FOCUS v. Allegheny County Court of Common Pleas, 75
F.3d 834, 840 (3d Cir. 1996). Thus Rooker-Feldman holds that lower federal
courts cannot entertain federal claims that (1) were previously adjudicated in
state court or (2) are inextricably intertwined with a prior state court decision.
Feldman, supra; Rooker, supra; Guarino v. Larsen, 11 F.3d 1151, 1156—57 (3d
Cit. 1993); Port Auth. Police Benev. Ass’n u. Port Auth., 973 F.2d 169, 178 (3d
Cir. 1992). The first alternative, actual adjudication, requires little explanation.
As for the second, a federal claim is “inextricably intertwined” with a prior state
court decision if “granting the relief requested in the federal action requires
determining that the state court’s decision is wrong or would void the state
court’s ruling.” FOCUS, 75 F.3d at 839-40.
The Third Circuit held that Rooker—Feidman deprives a federal court of
subject matter jurisdiction where the following four criteria are satisfied: “(1)
the federal plaintiff lost in state court; (2) the plaintiff ‘complain [s] of injuries
caused by [the] state-court judgments’; (3) those judgments were rendered
before the federal suit was filed; and (4) the plaintiff is inviting the district court
to review and reject the state judgments.” Great Western Mining & Mineral Co.
v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010). The Third Circuit
emphasized that “[t]he second and fourth requirements are the key to
determining whether a federal suit presents an independent, non-barred
Here, these four requirements are satisfied. First, Mr. Nasruddin lost in
State court, where a final judgment was entered against
Nasmddin’s federal complaint enumerates the injuries caused by the state
court decision, including “emotional injuries.
because [his] credit was
Neither party provides the specific date of the judgment or a copy of the
judgment itself. They agree, however, that judgment was entered; indeed, that is the
injury of which Mr. Nasmddin complains.
destroyed.” (ECF No. 1 at 4) Third, the state court judgment was entered before
Mr. Nasruddin instituted this federal action on September 21, 2015. Finally,
Mr. Nasruddin seeks relief in the form of a review and rejection of the state
courts decision. In his complaint, Mr. Nasruddin explicitly asks this Court to
vacate the state court judgment. (ECF no. 1 at 4) Throughout his submissions
in response to Mr. Harrison’s motion for summary judgment, Mr. Nasruddin
also repeatedly asserts that the state court judge did not conduct a fair trial,
and the judge’s ruling violated the federal FDCPA law and New Jersey contract
law. (ECF no. 25 at 2 to 3) He recognizes that some of the FDCPA-related
arguments that he is now presenting to this Court were also considered, and
rejected by, the state judge. The crux of those arguments is that under the
FDCPA, he is entitled to see a copy of the (nonexistent) payment agreement
between himself and Cardiac Surgery Group. (ECF no. 25 at 3, 12 to 15; ECF
no. 26 at 9 to 12)
In short, Mr. Nasruddin primarily argues that the state court judgment
was wrong; although he was found liable to pay for surgical services that he
received, he says, there is no contract with Cardiac Surgery Group, and he
does not in fact owe the money.
Accordingly, Rooker-Feidman applies. It bars Mr. Nasruddin’s claims that
the state judgment is invalid, and any claims asserting damages that flow from
the existence of that judgment. To the very great extent that Mr. Nasruddin’s
claims are not “independent” of the merits of the collection action, this Court
lacks subject matter jurisdiction. The proper recourse for addressing such
claims is an appeal within the State court system, not a lawsuit against the
It may be, however, that some of Mr. Nasruddin’s claims against Mr.
Harrison could be considered “independent” of the state judgment itself, and
that I could address them without disturbing the basis of the state judgment
itself. I therefore consider Mr. Harrison’s substantive arguments on summary
SUMMARY JUDGMENT STANDARD
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. I?. 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). In
deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). 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). “[W]ith respect to an issue on which the nonmoving party bears the
burden of proof
the burden on the moving party may be discharged by
‘showing’—that is, pointing 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 met that threshold burden, the non-moving
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 opposing party 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). “[Ujnsupported allegations
and pleadings are insufficient
to repel summary judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654,
657 (3d Cir. 1990); see also Gleason v. Nor-west Mortg., Inc., 243 F.3d 130, 138
(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact
if it has provided sufficient evidence to allow a jury to find in its favor at trial.”).
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 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. & Stir. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
477 U.S. at 322—23).
In deciding a motion for summary judgment, the court’s role is not to
evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.
Ct. 2505. Credibility determinations are the province of the fact finder. Big
Apple BMW, Inc. v. BMWof N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992).
The summary judgment standard, however, does not operate in a
vacuum. “[I]n ruling on a motion for summary judgment, the judge must view
the evidence presented through the prism of the substantive evidentiary
burden.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). That
“evidentiary burden” is discussed in the following section.
Here, Mr. Nasruddin, the nonmoving party, is appearing pro se. “Where
the plaintiff is a pro se litigant, the court has an obligation to construe the
complaint liberally.” Giles v. Keamey, 571 F.3d 318, 322 (3d Cir. 2009) (citing
Haines v. Kemer, 404 U.S. 519, 520-521 (1972); Gibbs z.’. Roman, 116 F.3d 83,
86 n. 6 (3d Cir. 1997)). I have construed Mr. Nasruddin’s pleadings and filings
in that liberal spirit. Mr. Nasruddin has made a number of written submissions
and exhibits explaining his position; some explicitly are directed to the
summary judgment motion and some are not, but I have considered them all in
connection with this summary judgment motion. For purposes of this motion, I
have credited his factual contentions and exhibits as if they had been
contained in or annexed to sworn affidavits.
DISCUSSION AND ANALYSIS
Mr. Nasruddin’s claims arise under the FDCPA. I first discuss claims
under section l692g, which are dismissed on statute of limitations and other
threshold grounds. (Section IV.A) I then consider claims under other sections of
the FDCPA. (Section IV.B)
A. FDCPA Section 1692g/Statute of limitations
FDCPA claims, like those of Mr. Nasruddin here, must be brought
“within one year from the date on which the violation occurs.” 15 U.S.C.
1692k(d), Mr. Harrison raises the statute of limitations in relation to Mr.
Nasruddin’s claim under Section 1692g.’°
I find that Mr. Nasruddin’s claims under section 1692g(a) are-time
barred. See 15 U.S.C.
1692k(d); Peterson u. Portfolio Recouenj Assocs., LLC,
430 F. App’x 112 (3d Cir. 2011). A claim under 1692g(b) would very likely be
time-barred as well, but it fails for the more fundamental reason that the
essentials of such a claim are not asserted factually.
Subsection (a) of Section 1692g requires that within five days after the
initial communication with a consumer in connection with the collection of a
debt, debt collectors must provide to consumers a written notice of (1) the
amount of the debt; (2) the name of the creditor to whom the debt is owed; and
(3) a statement notifying the consumer that he or she has the right to dispute
the validity of the debt within thirty days. 15 U.S.C.
It appears from the record that Mr. Harrison sent his initial letter to Mr.
Nasruddin seeking to collect the amount due to Cardiac Surgery Group on
Section 1692g claims would arise from the initial communications between debt
collector and debtor, which in this case occurred in 2013. As to claims arising from
the state court lawsuit itself, however, the limitations period would begin to run at or
about the time of that lawsuit, which occurred in 2015.
In an unreported 2009 decision, the Third Circuit observed that where “FDCPA
claims are premised upon allegations of improper pursuit of debt collection litigation,
courts are split as to when the FDCPAs one-year statute of limitations begins to run:
some have held that such claims accrue upon filing the underlying collection action,
see Naas u. Stolman, 130 F.3d 892, 893 (9th Cir. 1997), while others use the date on
which the purported debtor was served with the complaint. See Johnson ii. Riddle, 305
F.3d 1107, 1113 (10th Cir. 2002).” Schaffltauser a Citibank (S.D.) NA., 340 Fed.Appx.
128, 130—31 (3d Cir. 2009). The Third Circuit did not settle the question, instead
finding that under either approach, the plaintiffs complaint was untimely. Id. at 131.
Here, the earlier of the two possible dates (i.e., the filing of the state court
collection complaint) is July 2, 2015. The limitations period of one year, then, ran from
July 2, 2015, at the earliest. This federal court action was filed on February 19, 2016,
well within the limitations period for any claim that arose in July 2015.
August 14, 2013. (ECF no. 22-2 at 7; ECF no. 22-5, Ex. C, Cert. of Harrison
¶4).” Therefore, the statute of limitations began to run on August 14, 2013 As
to a claim under section 1692g(a), which arises from the debt collector’s initial
letter to the debtor, he is correct. See Peterson, 430 F. App’x at 115 (holding
that for FDCPA claims based on Section 1692g(a), the statute of limitations
begins to run at the point of initial communication). The one-year limitations
period ran out on August 14, 2014, but the federal-court complaint was not
filed until February 2016. (ECF no. 22-2 at 8)
Section 1692g(b) provides, in part as follows:
If the consumer notifies the debt collector in writing within the thirtyday period described in subsection (a) that the debt, or any portion
thereof is disputed, or that the consumer requests the name and
address of the original creditor, the debt collector shall cease
collection of the debt, or any disputed portion thereof, until the
debt collector obtains verification of the debt or a copy of a
judgment, or the name and address of the original creditor, and a
copy of such verification or judgment, or name and address of the
original creditor, is mailed to the consumer by the debt collector.
In order for there to be a violation of subsection(b), then, Mr. Nasruddin
must first allege that he contested the debt by contacting Mr. Harrison in
writing within thirty days after August 14, 2013. A claim under subsection(b),
then, would have arisen in that time frame, and, like a subsection (a) claim,
would likely be time-barred.
Speculation is not required, however, because the problem with any
subsection (b) claim is more basic. The precondition of any such claim is that
the debtor disputed the debt in writing within the statutory 30-day period. Mr.
Nasruddin does not allege that he did so. Therefore, the complaint fails to
As stated previously, the FDCPA requires that a debt collector either include a
validation notice in its initial communication with a consumer or send the consumer a
written validation notice within five days of the initial communication. Mr. Nasmdthn
does not seem to dispute that he received a validation notice. f not, then the statute of
limitations would begin to run five days after August 14, 2013. It makes no difference
in this case.
allege a section 1692g(b) claim upon which relief can be granted. So it is true,
as Mr. Harrison implies, that any arguable violation of subsection (b) would
have occurred in 2013, and would therefore be time-barred. But more
fundamentally, a subsection (b) violation is not alleged at all.
Mr. Nasruddin’s claims under section 1692g, then, are dismissed on
Other FDCPA Claims
Elements of FDCPA claim and relevant sections
The purpose of the FDCPA is to “eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain
from using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect consumers
against debt collection abuses.” 15 U.S.C.
1692(e). The Third Circuit has
recognized that “[a]s remedial legislation, the PDCPA must be broadly
construed in order to give full effect to these purposes.” Caprio v. Healthcare
Revenue Recovery Grp., LLC, 709 F.3d 142, 148 (3d Cir. 2013). See, e.g.,Lesher
v. Law Offices of Mitchell N. Kay, PC, 650 F.3d 993, 997 (3d Cir. 2011); Brown
Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006).
To state a claim under the FDCPA, a plaintiff must allege that “(1) she is
a consumer, (2) the defendant is a debt collector, (3) the defendant’s challenged
practice involves an attempt to collect a ‘debt’ as the Act defines it, and (4) the
defendant has violated a provision of the FDCPA in attempting to collect the
debt.” Douglass v. Convergent Outsourcing, 765 P.3d 299, 303 (3d Cir. 2014);
see also Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227, 232 (3d Cir. 2005).
As for element 4, a violation of a provision of the FDCPA, Mr. Nasruddin
maintains that Mr. Harrison violated the following three sections: 1692e,
1692f(l), and 1692j.’2
I have already disposed of claims under sections 1692g. See Section IV.A,
The complaint also cites sections 1692k, and 1692i. These sections do not
define substantive violations. Rather, they confer a private cause of action for
Section 1692e of the FDCPA prohibits a debt collector from “us[ingj any
false, deceptive, or misleading representation or means in connection with the
collection of any debt,” 15 U.S.C.
l692e, including false representations as to
“the character, amount, or legal status of any debt,” Id.
Section 1692f(1) provides that it is a violation of the FDCPA to collect or
attempt to collect “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.”
Section 1692j provides that “[i]t 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
violations of the FDCPA, define remedies, and limit the venue where a debt collection
action can be brought.
Section l692k(a) “sets forth the three standard components of liability for
violations” of the FDCPA. Graziano u. Harrison, 950 F.2d 107, 113 (3d Cir. 1991) It
any debt collector who fails to comply with any provision of this
subchapter with respect to any person is liable to such person in an
amount equal to the sum of—
(1) any actual damage sustained by such person as a result of such failure;
(2)(A) in the case of any action by an individual, such additional damages
as the court may allow, but not exceeding $1,000.
(3) in the case of any successful action to enforce the foregoing liability,
the costs of the action, together with a reasonable attorney’s fee as
determined by the court.
Any debt collector who brings any legal action on a debt against any
bring such action only in the judicial district or
similar legal entity--(A) in which such consumer signed the contract sued
upon; or (B) in which such consumer resides at the commencement of
Mr. Nasruddin does not specify which subsection of Section 1692e he relies on.
The language of the claim suggests that it is brought under Section 1692e(2)(A).
consumer allegedly owes such creditor, when in fact such person is not so
participating.” 15 U.s.c.
Although Mr. Nasruddin separately cites sections 1692e, 1692f(1), and
1692j, the claim under each is same: that under the FDCPA, Mr. Harrison was
required to, but did not, provide Mr. Nasruddin with a copy of a written
agreement between Mr. Nasruddin and cardiac Surgery Group, the entity that
Mr. Harrison represented in the state collection action.
This claim presents no genuine, material issue of fact that would bar
summary judgment. Mr. Harrison and Mr. Nasruddin that no such document
exists. (ECF no. 22-2 at 7, 9) Mr. Harrison, on behalf of cardiac Surgery
Group, prevailed on his state court claim. The basis on which he prevailed,
however, did not include any written agreement between Nasniddin and
cardiac Surgery Group. (There was, however, a signed agreement between Mr.
Nasruddin and Englewood Hospital Medical center, where the surgery was
Mr. Nasruddin’s FDCPA claim, if viewed narrowly, at least has the virtue
of avoiding Rooker-Feidman. Mr. Nasruddin is alleging a claim independent of
the state court judgment itself—i.e., a claim that he was injured by a violation
of the FDcPA’s disclosure requirement. Such an FDCPA claim, however,
cannot succeed. The sides agree that the document does not exist, and never
did. The FDCPA does not require “disclosure” of a document that does not
exist. No unfair debt collection practice is alleged. No deception is alleged; the
evidence is uncontradicted that Mr. Harrison never, whether here or in state
court, claimed that such a contract existed or that he was relying on it.
This concession gives away the game, in the view of Mr. Nasruddin. By
backing Mr. Harrison into the admission that there is no written contract
between Nasruddin and cardiac Surgery Group, he believes he has proven that
he is not required to pay the surgeon who operated on him. It follows, he
believes, that the state court collection action was wrongfully instituted by Mr.
Harrison and wrongly decided by the state court.
One problem with this broader claim is that it runs afoul of Rooker
Feldman, for the reasons stated in Section II, supra. It directly attacks the
propriety of the state court judgment. Another is that it would also barred by
res judicata, in that Mr. Nasruddin’s assertion of the FDCPA as a defense was
considered and rejected by the state court.
Mr. Nasruddin’s conclusion does not flow from his premise as a matter of
law. Neither party specifies the grounds on which the State judgment was
granted. For present purposes, however, it does not really matter whether the
judgment rested on contract, a third-party beneficiary theory, quantum meruit,
or some other ground. The State court held that under New Jersey law, Cardiac
Surgery Group was entitled to payment from Mr. Nasruddin for medical
services provided to him at Englewood Hospital Medical Center, and entered
judgment. Whether the State court erred in its decision is a question properly
pursued, if anywhere, via a state court appeal.
Accordingly, I grant summary judgment to Mr. Harrison on all of Mr.
For the reasons set forth above, Mr. Harrison’s motion for summary
judgment (ECF no. 22) is GRANTED. An appropriate order follows.
Dated: October 11, 2017
United States District Judge
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