Cortez v. Forster & Garbus, LLP

Filing 49

MEMORANDUM AND ORDER: Defendants motion for reconsideration 30 is denied. See attached Memorandum and Order for details. Ordered by Judge Frederic Block on 3/6/2020. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CRISTIAN D. CORTEZ,
Plaintiff,
MEMORANDUM AND ORDER
Case No. 17-cv-06501 (FB) (RLM)

-againstFORSTER & GARBUS, LLP,
Defendant.
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Appearances:
For the Plaintiff:
DAVID M. BARSHAY
Barshay Sanders, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530

For the Defendant:
ROBERT L. ARLEO
Robert L. Arleo, Esq.
380 Lexington Avenue
New York, NY 10168

BLOCK, Senior District Judge:
Defendant Forster & Garbus, LLP (“Defendant”) moves for reconsideration
of this Court’s Memorandum & Order (“Order”) granting summary judgment in
favor of Plaintiff Cristian D. Cortez (“Plaintiff”) on claims under the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692e, et seq (“FDCPA”). See Dkt. 28. In
relevant part, the Order held that a debt-collection notice Defendant mailed to
Plaintiff in February 2017 (“Notice”) “failed to advise” Plaintiff whether his “debt
was still accruing interest and/or fees” and so amounted to a “false” or “misleading
representation[]” of the “character, amount, or legal status of [the] debt” that violated
the FDCPA. As explained herein, Defendant’s motion for reconsideration is denied.
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***
Reconsideration is improper unless a movant can point to “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). A motion for reconsideration “is not a
vehicle for relitigating old issues, presenting the case under new theories . . . or
otherwise taking a ‘second bite at the apple.’” Sequa Corp. v. GBJ Corp., 156 F.3d
136, 144 (2d Cir. 1998).
In this case, Defendant’s argument for reconsideration is twofold: First,
Defendant asserts that the “Court mistakenly ruled that consumers are not charged
with considering collection letters as a group,” and that Plaintiff should have known
his debt balance was incurring “interest, costs and/or other fees” in light of “other”
letters Defendant sent in the five years before the Notice at issue. Second, Defendant
maintains that an unpublished decision, issued one week after the Order, provides
“strong support for the fact that summary judgment should have been awarded to the
Defendant.” See Watson v. Midland Credit Mgmt., 2019 WL 2527295 (June 19,
2019 E.D.N.Y.).
As to the first argument, Defendant cites no authority—and the Court has
found none—supporting the proposition that the least sophisticated consumer is
expected to decipher whether a debt will accrue interest or fees by “considering
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collection letters as a group;” ostensibly by culling bits of information from each
letter they received over the course of several years. Nor does it follow, as Defendant
argues, that the least sophisticated consumer is expected to divine whether a debt
will accrue interest or fees after the date specified in the Notice (here, February 24,
2017) simply because Defendant sent “other” letters in the five years before:
Whatever representations the “other” letters made (individually or “as a group”) they
certainly did not state if interest or fees would apply after February 24, 2017.
As to the second argument, Defendant ignores that Watson denied a debt
collector’s motion to dismiss because the collection notice at issue failed to state
whether “Defendant might require the . . . imposition of interest and late payment
fees on the debt.” 2019 WL 2527295 at *6. Indeed, Watson explained that if interest
or other fees accrued—which Defendant admits was the case on Plaintiff’s debt—
“then Defendant would be in violation of Section 1692e given Avila’s requirement
to disclose that interest and other fees may accrue on a debt.” Id. (citing Avila v.
Riexinger & Assocs., LLC, 817 F.3d 72, 74 (2d Cir. 2016)).
Finally, in sum and substance, Defendant raised both of these arguments in its
briefing on the motion for summary judgment.1 The Court rejected the arguments
then, and Defendant fails to identify any issue that the Court overlooked or an

1

While Watson was issued a week after this Court’s Order, the Second
Circuit case on which Watson relies—Avila v. Riexinger & Assocs., LLC—was
cited throughout the parties’ summary judgment briefing.
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intervening change in law that would warrant reconsideration now. Sequa Corp.,
156 F.3d at 144.
***
For the reasons stated herein, Defendant’s motion for reconsideration is
denied.
SO ORDERED.

_/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
March 6, 2020

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