Cocco et al v. Bank of America Home Loans

Filing 27

DECISION AND ORDER granting 11 Motion for Summary Judgment. ORDERED, that having demonstrated their entitlement to summary judgment and because Plaintiffs have not submitted an amended complaint within the time frame allotted by the Court, Defendant's motion for summary judgment is GRANTED and Plaintiffs' Complaint is DISMISSED WITH PREJUDICE. The Clerk of the Court shall close the file in this matter. Signed by Senior Judge Thomas J. McAvoy on 8/21/2013. (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------JOHN N. and MARY C. COCCO,
Plaintiffs,
v.

1:12-cv-1576

BANK OF AMERICA HOME LOANS,
Defendants.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
By Decision and Order dated July 8, 2013,1 the Court converted Defendant’s
motion pursuant to Fed. R. Civ. P. 12 to one under Fed. R. Civ. P. 56 limited to the issue of
whether Plaintiffs timely requested verification of the debt. The Court gave the parties an
opportunity to submit supplemental materials in support of, or opposition to, the converted
motion. The Court also granted Plaintiffs leave of thirty days to file an amended complaint to
set forth valid and timely claims. Defendant timely filed supplemental materials. Plaintiffs
have neither filed supplemental materials nor filed an amended complaint. The Court will
now address the motion for summary judgment.
If a consumer properly disputes a debt within thirty days of receiving notice of that
debt, the debt collector is required to cease collection until the debt has been verified. 15
U.S.C. § 1692g(b). Here, Plaintiffs claim that Defendant violated this provision by continuing

1

Familiarity with all prior proceedings is presumed.

to collect on the debt after a request for validation. Defendant, on the other hand, asserts
that Plaintiffs never requested validation within thirty days and, therefore, the continued
efforts at collection do not violate the statute.
In its supplemental papers, Defendants submit evidence that they provided notices
to Plaintiffs concerning the debt on September 15, 2010 and July 1, 2011. Defendants
submit that they have no record of Plaintiffs requesting verification within thirty days of either
of these notices. Defendants identify letters from Plaintiff from December 2011, May 2012,
and June 2012. None of these dates are within thirty days of the notices sent by Defendant.
Plaintiffs have not supplied anything demonstrating the existence of a triable issue of fact
concerning whether they timely requested verification of the debt.
Having demonstrated their entitlement to summary judgment and because Plaintiffs
have not submitted an amended complaint within the time frame allotted by the Court,
Defendant’s motion for summary judgment is GRANTED and Plaintiffs’ Complaint is
DISMISSED WITH PREJUDICE. The Clerk of the Court shall close the file in this matter.
IT IS SO ORDERED.
Dated: August 21, 2013

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