Curto v. Palisades Collection, LLC et al
Filing
72
DECISION AND ORDER GRANTING in part and DENYING in part Defendants' 63 64 Motions for Summary Judgment. Signed by William M. Skretny, Chief Judge on 10/23/2011. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PATRICIA J. CURTO,
Plaintiffs,
v.
DECISION AND ORDER
07-CV-529(S)
PALISADES COLLECTION, LLC. ET AL.,
Defendants.
I. INTRODUCTION
On August 13, 2007, pro se plaintiff Patricia J. Curto filed a Complaint in the
Western District of New York claiming violations by Defendants Palisades Collection, LLC
(“Palisades”), Pressler & Pressler, LLP, Sheldon H. Pressler, Esq., Richard A. Franklin,
Esq., Jennifer B. Kwak, Esq., and Lori R. Centani, Esq. (collectively, “Pressler”) of the
Federal Debt Collection Practices Act (“FDCPA”).1 Plaintiff alleges that Palisades filed
successive suits against her, failed to comply with the FDCPA’s validation notice
requirements, and improperly served process. Presently before the Court is Defendants’
Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure. For the following reasons, Defendants’ Motion for Summary Judgment is
granted in part, and denied in part.2
1
Plaintiff’s original Com plaint also alleged various claim s pursuant to 42 U.S.C. 1983, 1985, and
1986 against Phillip M. Marshall, the New York State Unified Court System , and various John and Jane
Does. The sam e com plaint also sought class certification. The Honorable Michael A. Telesca, Senior
United States District Judge, dism issed these and other claim s by separate order on March 10, 2008.
(Docket No. 29.)
2
In support of their m otion, Palisades filed the Affidavit of Peter Fish; the Affidavit of Mitchell L.
W illiam son, Esq.; the Affidavit of Michael Del Valle, Esq.; as well as a Statem ent of Facts; a Mem orandum
of Law; and a Reply Mem orandum , with attached exhibits. (Docket Nos. 61, 70.) Pressler joined
1
II. BACKGROUND
A.
Facts
Plaintiff Patricia J. Curto is a resident of Orchard Park, New York. (Supplemental
Amended Complaint (“Comp.”), Docket No. 33, ¶ 3.) Palisades is a company engaged in
the debt collection business. (Id. at ¶ 7.) Pressler is a law firm practicing in the area of
debt collection, and retained by Palisades for that purpose.
(Defendant Palisades
Collection, LLC’s Statement of Material Facts, (“Defs.’ Statement”), Docket No. 61, ¶ 5.)
Sheldon H. Pressler, Esq., Richard A. Franklin, Esq., Jennifer B. Kwak, Esq., and Lori R.
Centani, Esq. are all attorneys presently or formerly employed by Pressler. (Docket No.
64.)
Palisades became the owner of a credit card debt allegedly incurred by Curto. (See
Defs.’ Statement ¶ 1.) After unsuccessfully attempting to collect the debt, Palisades
initiated a court proceeding in Buffalo City Court against Curto through the law firm Forster
& Garbus on July 26, 2004 (“First Collection Action”). (Id.) The first collection action was
dismissed on May 26, 2005 because Curto’s residence in Orchard Park was outside the
court’s jurisdiction. (Fish Affidavit (“Fish Aff.”), Docket No. 61, Ex. 2.) Palisades, again
through Forster & Garbus, filed suit in November 2005, this time in the Supreme Court,
Erie County (“Second Collection Action”). (Defs.’ Statement ¶ 3.) The second collection
action was dismissed on April 11, 2006. (Id. at ¶ 4.) A court transcript reveals that this
case was also dismissed on jurisdictional grounds. (Defendant Palisades Collection, LLC’s
Palisades’ m otion and relies on Palisades’ subm issions, but filed its own Reply Mem orandum , with
attached exhibit. (Docket Nos. 62, 64, 71.)
Plaintiff responded by filing his Affidavit in Opposition to Defendants’ Motion; a Mem orandum of
Law in Opposition to Defendants’ Motion to Dism iss with attached exhibits; and a Response to
Defendants’ Statem ent of Facts. (Docket Nos. 67, 68, 69.)
2
Reply to Plaintiff’s Memorandum in Opposition to Motion for Summary Judgment
(“Palisades Reply”), Docket No. 70, Ex. 1.) On May 24, 2007, Palisades brought a third
collection action, this time through their new counsel Pressler, and again filed suit in
Buffalo City Court (“Third Collection Action”). (Defs. Statement ¶ 5.) This action was
dismissed without prejudice by the Buffalo City Court on September 17, 2007 after
Palisades, through their counsel failed to appear. (Affidavit of Mitchell L. Williamson
(“Williamson Aff.”), Docket No. 61, Ex. 4.)
Thereafter, Defendants sent Curto a collection letter on January 24, 2008 (“January
Letter”). (Defs. Statement ¶ 5.) This letter contained a validation notice informing Curto
of her rights and included language that is the source of several claims. On February 6,
2008, Defendants resumed legal proceedings in a fourth collection action (“Fourth
Collection Action”). This final court proceeding revisited the Supreme Court, Erie County,
which had previously heard Defendants’ second collection action. (Williamson Aff., Ex. 6.)
Curto again moved to dismiss this action. Following oral argument, the court granted
Curto’s motion to dismiss on October 21, after Defendants’ failed to submit responding
papers. (Id.)
B.
Procedural History
On the basis of these events, Plaintiff filed a Complaint in the Western District of
New York on August 13, 2007. (Docket No. 1.) Curto amended her complaint on
November 26, 2007, (Docket No. 3.), and Defendants responded by answer, (Docket Nos.
10, 11.) Thereafter, this case was referred to the Honorable Hugh B. Scott, United States
Magistrate Judge, for all non-dispositive motions and procedural matters. (Docket No. 15.)
Judge Telesca granted a motion dismissing various defendants, including Phillip Marshall
and the New York State Unified Court System 8th Judicial District Buffalo City, and
3
dismissed Plaintiff’s class action. (Docket No. 29.) On April 7, 2008, the court issued a
consolidation order, consolidating another case brought by Plaintiff, case number 8-CV191, with the present suit. (Docket No. 32.)
The complaint filed by Plaintiff in 8-CV-191 was deemed a supplemental amended
complaint for purposes of this case, (Docket No. 33), to which
Defendants filed
supplemental answers on April 23 and 28, 2008, (Docket Nos. 35, 36). Plaintiff then
sought Judge Scott’s recusal on the basis of being denied use of this Court’s conference
room, as well as for granting Defendants’ request to appear telephonically at a scheduling
conference set for March 5, 2008. Judge Scott denied Plaintiff’s motion reasoning that,
although there are many plaintiffs, there are but few judicial conference rooms, and
denying the usage of those rooms did not violate Curto’s equal protection and due process
rights. (Docket No. 52.)
Defendants filed the present Motion for Summary Judgment on November 28, 2008.
(Docket Nos. 63, 64.)3
III. DISCUSSION
A.
Legal Standards
1.
Summary Judgment Standard
Summary judgment is appropriate if “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
3
It appears that there was a filing irregularity resulting in Defendants’ Mem orandum in support of
their Motion for Sum m ary Judgm ent, as well as supporting docum ents, being electronically filed on
Novem ber 28, 2008, while the actual m otion was not filed until Decem ber 17, 2008. Notwithstanding this
incongruence, the Court notes that Defendants’ pro se notice of m otion to Plaintiff was filed in a tim ely
m anner. Because Plaintiff was alerted of Defendants’ m otion, Plaintiff was not prejudiced and
Defendants’ Motion for Sum m ary Judgm ent will be considered as tim ely filed.
4
fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56©.
A fact is “material” if it “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986). An issue of material fact is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.
In deciding a motion for summary judgment, the evidence and the inferences drawn
from the evidence must be "viewed in the light most favorable to the party opposing the
motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S. Ct.1598, 1609, 26
L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import of
evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.
1991). The function of the court is not “to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S.
at 249. “Assessments of credibility and choices between conflicting versions of the events
are matters for the jury, not for the court on summary judgment.” Rule v. Brine, Inc., 85
F.3d 1002, 1011 (2d Cir. 1996).
2.
Defendants’ Motion for Summary Judgment
Congress enacted the FDCPA “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.” Greco v. Trauner, Cohen &
Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir. 2005) (quoting 15 U.S.C. § 1692(e)). A single
violation of any provision of 15 U.S.C. § 1692 is sufficient to establish civil liability. Clomon
v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993).
5
In his supplemental amended complaint, Curto alleges Defendants violated 15
U.S.C. § 1692k, the FDCPA’s civil liability provision. § 1692k does not, in itself, specify
particular violative behavior, but rather delineates a party’s liabilities for violations of the
FDCPA’s other provisions. See 15 U.S.C. § 1692k. However, cognizant of the distinct
disadvantage pro se litigants face, the Court reads Curto’s submissions carefully and
liberally, and interprets them so as to raise the strongest arguments they suggest. See
Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). On this basis, Plaintiff’s submissions reveal
three broad areas in which Defendants allegedly committed FDCPA violations. The
violations within each of these areas run the gamut of possible FDCPA violations, touching
upon §§ 1692d (harassment or abuse), 1692e (false or misleading representations), 1692f
(unfair practices), 1692g (validation of debts), and 1692i (legal actions by debt collectors).
Upon review of the parties’ submissions, Defendants’ Motion for Summary Judgment will
be granted as to those of Plaintiffs’ claims arising from the validation notice, and denied
as to those claims arising out of Defendants’ successive filings and service of process.
i.
State court collection actions
Plaintiff claims that Defendants violated the FDCPA by bringing four separate
collection actions in both the Buffalo City Court and the Supreme Court, Erie County.
Defendants argue that they are entitled to summary judgment because they were legally
entitled to bring each of the four collection actions. Defendants argue that each was
dismissed without prejudice and that the jurisdictional defects which resulted in those
dismissals were due to unintentional, bona fide, errors.
“Among the abusive practices that Congress intended the FDCPA to address was
6
the problem of forum abuse, an unfair practice in which debt collectors file suit against
consumers in courts which are so distant or inconvenient that consumers are unable to
appear, hence permitting the debt collector to obtain a default judgment.” Hess v. Cohen
& Slamowitz LLP, 637 F.3d 117, 120 (2d Cir. 2011) (quoting S. Rep. No. 95-382, at 5
(1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699) (internal quotation marks omitted). 15
U.S.C. § 1692i(a) states that “[a]ny debt collector who brings any legal action on a debt
against any consumer shall– . . . 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 the action.” 15 U.S.C. § 1692i(a). Where a
debt collector brings an action in a state court system, the judicial district’s contours are
determined by reference to the judicial system of the state in which the debt collection
action is brought. Hess, 637 F.3d at 121. Because both the first and third collection
actions run afoul of § 1692i’s venue requirement, Defendants’ motion will be denied as to
these claims.
Defendants twice brought suit in the Buffalo City Court, first on May 26, 2005, and
then again on May 24, 2007. Each time, the complaint was dismissed without prejudice.
The first collection action was expressly dismissed for lack of jurisdiction because Curto
did not live in the City of Buffalo or a town contiguous to it, as required by U.C.C.A. 213(a).
(Fish Aff., Ex. 2.) The third collection action was similarly dismissed when Pressler learned
that Curto still did not reside within the City Court’s jurisdiction. (Defs.’ Statement ¶ 6.)
Proper venue under the FDCPA in New York city courts is determined by reference
to U.C.C.A. 213. Hess, 637 F.3 at 123-24. Although Defendants argue that they were
entitled, pursuant to U.C.C.A. § 213(d) to re-file their actions in an appropriate court, “[i]t
is irrelevant to the FDCPA whether state law sets forth a procedure for refiling actions that
7
are dismissed based on defective venue; indeed, we would expect that such dismissals
would in the ordinary course be without prejudice, as venue relates to the convenience of
the parties rather than the validity of the claim.” Hess, 637 F.3d at 124. The very
possibility of refiling actually contributes to the threat of “forum abuse,” because “it is not
without cost for a consumer to obtain dismissal of a debt collection suit on the basis that
it was brought in the incorrect court.” Id. Like the defendant in Hess, Defendants here
chose to bring suit in city court, as opposed to a court of wider jurisdiction. See id. at 12425. Having made this choice, Defendants are responsible for the consequences of
compelling Plaintiff to defend herself in a court without jurisdiction.
Defendants also argue, however, that any improper filings were the result of
unintentional error. Hess took no position on whether, in that case, the debt collector’s
“failure to identify the proper forum may have been an isolated and innocent error resulting
from a lack of familiarity with local practice.” Id. at 125. “A debt collector may not be held
liable in any action brought under [the FDCPA] if the debt collector shows by a
preponderance of evidence that the violation was not intentional and resulted from a bona
fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any
such error.” 15 U.S.C. § 1692k(c). “When attempting to show that he is entitled to the
bona fide error defense, a debt collector ‘need not demonstrate that its procedures for
avoiding [FDCPA] violations are ‘fool proof,’ but rather, must only show that its procedures
constitute a ‘reasonable precaution.’” Dimovski v. Tolisano & Danforth, L.L.C., No. 3:10CV-205 (JCH), 2011 WL 1638051, at *4 (D. Conn. Apr. 29, 2011) (quoting Katz v. Asset
Acceptance, LLC, No. CV-05-2783 (DGT), 2006 WL 3483921, at *2 (E.D.N.Y. Nov. 29,
2006)).
Among the factors pertinent to determining whether a debt collector’s actions were
8
reasonable is whether a collector has made such an error before. Id. at *5. Here, the
record is silent as to whether Defendants have previously committed similar mistakes.
Where the record is silent, “a jury is entitled to decide whether reasonable procedures
existed” to prevent erroneous filings. Id. (quoting McDaniel v. South & Assoc., P.C., 325
F. Supp. 2d 1210, 1219 (D. Kan. 2004)). Although Defendants have explained some of
their procedures, including acting on the basis of Curto’s last known mailing address,
obtaining a Postmaster subpoena, and referring to online databases, drawing all
reasonable inferences in favor of Plaintiff, the court finds that Defendants are not entitled
to summary judgment. The first collection action was dismissed for lack of jurisdiction after
the court took judicial notice of a public mapping service that showed Plaintiff’s address to
be within the borders of Orchard Park. The third collection action was similarly dismissed
after Plaintiff informed Pressler that the first collection action had been dismissed for lack
of jurisdiction, a fact of which Pressler was previously unaware. (Williamson Aff., ¶ 10.)
That a mistake was made not once, but twice and that these mistakes could have been
cured by Defendants reference to a public mapping service or by keeping track of where
venue had already been found improper, creates a sufficient dispute regarding whether
Defendants’ procedures exercised “reasonable precaution.” Archaempongtieku v. Allied
Interstate Inc., No. 04-CV-8397, 2005 WL 2036153, at *6 (S.D.N.Y. Aug. 24, 2005).
Defendants’ reliance on Katz is unavailing. In Katz a clerical error resulted in the
entry of an incorrect venue code on a client’s file. 2006 WL 3483921, at *2. That court
accepted defendant’s bona fide error defense, observing that “it is hard to imagine what
interest of defendants would be served by filing the underlying suit in New York rather than
Kings County” where the two are approximately 2.6 miles apart. But the defendant in Katz
erroneously filed suit against that plaintiff once, whereas Defendants here subjected
9
Plaintiff to four separate complaints. See id. at *3 (noting the absence of additional
occurrences). Defendant in Katz also submitting affidavits of those involved testifying to
the mistake, and provided the court with “detailed evidence of firm policies and procedures
that it has in place to avoid having collection suits filed in venues other than the venue
where the debtor resides.” 2006 WL 3483921, at *3. Defendants here have neglected to
do so.
Consequently, Defendants’ Motion for Summary Judgment as to those claims based
on the first and third collection actions will be denied. Even if Defendants’ actions had
been filed in a proper venue, the fact that Defendants caused four separate lawsuits to be
filed against Curto, for collection of the same debt, may constitute a separate FDCPA
violation. (See Supp. Am Comp ¶ 32.)
Courts have considered the issue of successive lawsuits in the context of
garnishment proceedings. See generally Lange v. CIR Law Offices, No. 09cv1485, 2010
WL 2524089, at *3-4 (S.D. Cal. June 22, 2010) (discussing cases). Those cases held that
a debt collector who knowingly garnishes exempted funds, like social security payments,
violates § 1692f. See Hogue v. Palisades Collection, LLC, 494 F. Supp. 2d 1043 (S.D.
Iowa 2007); Wilson v. Bus. & Prof’l Credit Mgmt. of Kearney, Inc., No. CV85-L-709, 1986
U.S.C. Dist. LEXIS 31002 (D. Neb. Aug. 26, 1986).
Plaintiff alleges that Defendants continued to bring legal actions even after their
claims had been dismissed on the merits. Bringing suit where a prior collection action has
been dismissed with prejudice could constitute violations under § 1692d (harassment or
abuse) or § 1692f (unfair practices). See Parkins v. Arrow Fin. Servs., LLS, No. 07 C 410,
2008 WL 94798 (N.D. Il.. Jan. 8, 2008) (“[T]hreatening of a lawsuit which the debt collector
knows or should know is unavailable or unwinnable by reason of a legal bar such as the
10
statute of limitations is the kind of abusive practice the FDCPA was intended to eliminate.”)
While a consumer would legally prevail on each successive claim on the basis of res
judicata, these proceedings would nevertheless serve to harass him and compel him to
expend resources defending himself in court. Hess, 637 F.3d at 124. Accordingly, this
Court must consider whether any of Defendants’ collection actions were dismissed on the
merits such that successive filings would constitute abuse, harassment, or an unfair
practice. See Havens-Tobias v. Eagle, 127 F. Supp. 2d 889, 897-98 (S.D. Ohio 2001)
(merely bringing collection action on disputed suit not deceptive, unconscionable, or
unfair); Parkins, 2008 WL 94798 (denying summary judgment where a debt collector filed
state court complaint to recover time-barred debt).
The first collection action was dismissed on May 26, 2005 by the court “for lack of
personal jurisdiction,” and thus did not pose a legal bar to Defendants refiling suit. (See
Fish Aff., Ex. 2.) The second collection action was also dismissed on jurisdictional
grounds. (Palisades Reply, Ex. 1.) The third collection action was dismissed without
prejudice after Defendants failed to appear. (Williamson Aff., Ex. 4.) The fourth collection
action was dismissed, though the court did not specify whether dismissal was on the merits
or without prejudice. (Id. at Ex. 6.) Because it does not appear that Defendants have filed
any further collection actions in state court, this Court need not address whether that
judgment was on the merits or without prejudice. Consequently, none of Defendants suits
violate the FDCPA for being clearly frivolous or otherwise not permitted by law.
Even so, Defendants’ successive filings may be in violation of § 1692d, if their
natural consequence is to harass, oppress, or abuse Plaintiff in connection with the
collection of the debt. See 15 U.S.C. § 1692d. As already discussed, although the
initiation of a collection action in court can constitute a violation of the FDCPA, see Parkins,
11
2008 WL 94798, the mere “filing of a complaint in an appropriate venue is not the kind of
conduct covered by § 1692d as a matter of law.” Kelly v. Great Seneca Fin. Corp., 443 F.
Supp. 2d 954, 960 (S.D. Ohio 2005) (noting that natural consequence of filing lawsuit is
to seek judicial resolution, not harass, oppress, or abuse the defendant). Nevertheless,
in the present case Defendants did not file a single lawsuit, they filed four. See Harvey v.
Great Seneca Fin. Corp., 453 F.3d 324, 330, (6th Cir. 2006) (finding oppressive or abusive
acts outlined in § 1692 “not comparable to the single filing of a debt-collection lawsuit”
(emphasis added)). As already discussed, the first and third collection actions were both
dismissed because Defendants failed to correctly ascertain Curto’s residence. The second
and fourth collection actions were dismissed because of Defendants’ omissions. Judge
Fahey adjudicating Defendants’ second collection action remarked that “[t]here’s no
Affidavits of Service here properly showing you’re saying you have jurisdiction . . . . [a]nd
the papers submitted from that law firm . . . are put together the way the exhibits aren’t
marked [sic], they don’t have the right summons and complaint . . . . [i]t’s insufficient so it’s
dismissed.” (Palisades Reply, Ex. 1.) Similarly, Judge Whalen, in his Decision and Order
dismissing Defendants’ complaint noted that Defendants “had not submitted any papers
in opposition to the motion prior to oral argument . . . . [d]uring oral argument, the court
asked [Palisade’s] counsel if he wished to submit anything on papers in opposition to the
motion and plaintiff’s counsel indicated he did not.” (Williamson Aff., Ex. 6.)
A trier of fact may conclude that Defendants behavior in each instance was the
result of a unintentional mistake. See 15 U.S.C. § 1692k(c). Nevertheless, on a motion
for summary judgment this Court must draw all reasonable inferences in favor of the nonmoving party. Addickes, 398 U.S. at 158-59. Having done so, this Court is unprepared to
say that bringing one lawsuit after another, and failing to fully prosecute any of them,
12
cannot rise to the level of abusive or oppressive behavior in violation of § 1692d. C.f.
Eichman v. Mann Bracken, LLC, 689 F. Supp. 2d 1094, 1100-01 (W.D. Wis. 2010) (holding
that mere filing of counterclaim insufficient to violate FDCPA, unless counterclaims are
frivolous, based on blatant lies, or misrepresent key facts); Havens-Tobias, 127 F. Supp.
2d at 897-98 (no violation where collection action not deceptive, unconscionable, or unfair).
Defendants errors and omissions, intentional or not, have compelled Plaintiff to defend
herself in court on four separate occasions.
A jury could conclude from this that
Defendants violated the FDCPA.
Defendants’ Motion for Summary Judgment as to those of claims arising out of
Defendants’ successive lawsuits will be denied.
ii.
January letter
Plaintiff alleges numerous FDCPA violations on the basis of the January letter,
including the erroneous requirement that Plaintiff notify Defendants in writing that the debt
was disputed, the letter’s failure to specify an amount of interest, and the letter’s omission
of the fact that an attorney had reviewed Curto’s debt. Defendants respond that the letter
contained everything demanded under § 1692g, did not require a breakdown of principal
and interest owed, and did not otherwise mislead Plaintiff.
§ 1692g requires debt collectors to send consumers a written notice “within five days
after the initial communication with a consumer in connection with the collection of any
debt.” 15 U.S.C. § 1692g(a)(1-5). The test for determining whether a collection letter
violates § 1692g is an objective standard based on the “least sophisticated consumer.”
Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 90 (2d Cir. 2008) (quoting Clomon,
988 F.2d at 1319).
13
The language of the disputed letter reads as follows:
This communication is from a debt collector. This is an
attempt to collect a debt. Any information obtained will be
used for that purpose. Unless you notify this office within 30
days after receipt of this notice that you dispute the validity of
the debt, or any portion thereof, this office will assume this
debt is valid. If you notify this office in writing within 30 days
from receipt of this notice that the debt or any portion thereof
is disputed, this office will obtain verification of the debt or
obtain a copy of a judgment and mail you a copy of such
judgment or verification. Upon your request in writing, within
30 days after receiving this notice, this office will provide you
with the name and address of the original creditor, if different
from the current creditor.
At the outset, this Court notes that the language in this letter closely tracks that of a letter
approved of by the Second Circuit in Jacobson. Id. at 88. The court in that case
determined that such language, standing alone, satisfies the obligations imposed under
§ 1692g(a). Id. at 90. In Jacobson, the problem arose because of the inclusion of
additional language, absent here. Id. at 93 (noting that letter explicitly required receipt of
dispute notice in debt collector’s office within 30 days to avoid further action); see also
Vega v. Credit Bureau Enters., No. CIVA02CV1550DGT KAM, 2005 WL 711657, at *9-10
(E.D.N.Y. Mar. 20, 2005) (finding sentence requiring debt disputes to be made in writing
overshadowed statutorily correct validation notice). Consequently, Plaintiff’s claim that the
letter included an improper writing requirement is without merit.
Plaintiff’s next claim is that the letter was false or misleading for stating that “no
attorney has personally reviewed the particular circumstances of your account” when, in
fact, Defendant Richard A. Franklin had previously stated, in Buffalo City Court, that he
had. (Plaintiff’s Memorandum of Law in Oppostion [sic] to Defendants [sic] Motion to
Dismiss, Docket No. 68, 5.) The fact that Plaintiff’s debt may have received meaningful
review was not a detriment to Plaintiff. It also is not a violation of the FDCPA. Cf. Greco,
14
412 F.3d at 364 (2d Cir. 2005) (finding that attorneys could send debt collection letter even
without being meaningfully involved, provided disclaimer was included). Consequently, this
claim is also without merit, and Defendants’ Motion for Summary Judgment will be, as to
it, granted.
Similarly, summary judgment is appropriate on the claim that the letter erroneously
omitted the amount of interest owed, because Defendants are not seeking interest. (Fish
Aff., Ex. 1.) Therefore the January Letter correctly stated “the amount of the debt.” 15
U.S.C. 1692g(a)(1); see also Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir.
2010) (notice not deceptive where dollar amount labeled as interest on principal actually
comprised of finance charges and post-assignment interest). Only were Defendants to
now seek interest on the debt, would the letter have been misleading. See Dragon v. I.C.
Sys., Inc., 483 F. Supp. 2d 198, 203 (D. Conn. 2007) (finding collection notice that did not
specify date on which balance was due in full and which was subject to adjustment on
periodic basis).4
After considering Plaintiff’s various allegations, Defendants’ are entitled to summary
judgment as to those claims arising from the January Letter.5
4
Curto also alleges that the validation notice failed to state that the debt was disputed, when in fact
it had been disputed throughout the various collection actions. Courts have interpreted § 1692e(8) to
require debt collectors with knowledge of a disputed debt to disclose that fact in responding to a
consum er’s credit history. Kinel v. Sherm an Acquisition II LP, No. 05 Civ. 3456(RCC)(THK), 2006 W L
5157678, at *16 (S.D.N.Y. Feb. 28, 2006). However, a debt collector does not com m it a violation where
the debt’s disputed status is not disclosed to a third party. See id. at *17. Here, Plaintiff only alleged that
the notice to him inaccurately described the status of the debt, and not that Defendants disclosed the
inform ation to other parties.
5
Plaintiff also appears to argue that Defendants’ violated the FDCPA by failing to include a toll free
num ber at which Plaintiff could reach Defendants. (Am . Com p. ¶ 23.) This Court has not found any such
requirem ent, and therefore Defendants’ Motion for Sum m ary Judgm ent will be granted as to that claim as
well. 15 U.S.C. § 1692g; see also cf. Greisz v. Household Bank (Illinois), 8 F. Supp. 2d 1031, 1038 (N.D.
Ill. 1998) (not finding any requirem ent for telephone num ber under Truth-in-Lending Act).
15
iii.
Summons and Complaint
Plaintiff’s final claim is that Defendants violated the FDCPA by serving on her a
summons and complaint, placed in her mailbox, but not inside an envelope. (Am. Comp.
¶ 36.) Defendants do not respond directly to this point.
Merely failing to serve process in a debt collection action does not establish a
violation of the FDCPA. Dillon v. Riffel-Kuhlmann, 574 F. Supp. 2d 1221, 1223 (D. Kan.
2008). However, an FDCPA violation does occur where information regarding a creditor
or debt is disclosed to third parties, such as through an envelope window. In re Hodges,
342 B.R. 616, 625 (Bankr. E.D. Wash. 2006); see also FTC Statements of General Policy
or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg.
50,097-02 (1988) (“A debt collector may not send a written message that is easily
accessible to third parties.”) Furthermore, a debt collector violates § 1692g(b) where it
serves process on an individual within the 30-day validation period following a validation
notice
and
provides
no
other
accompanying communication
explaining
that
commencement of the lawsuit has no effect on the information contained in the validation
notice. Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 136-37 (2d Cir. 2010). This is
because the summons and complaint has the effect of overshadowing the validation notice
by making it “appear to the least sophisticated consumer that being taken to court trumps
any other out-of-court rights she had.” Id. at 136 (quoting Ellis v. Solomon & Solomon,
P.C., 599 F. Supp. 2d 298, 304 (D. Conn. 2009)).
Defendants’ memorandum does not address why the filing of the fourth collection
action would not overshadow the validation notice received by Curto less than 30 days
earlier. Defendants also do not address Plaintiff’s contention that the summons and
complaint were delivered to her curbside mailbox without envelope or other packaging.
16
(Supp. Am. Comp. ¶ 36.) For these reasons, Defendants’ Motion for Summary Judgment
as to the February 20 service of process will be denied.
IV. CONCLUSION
For the reasons stated above, Defendants’ Motions for Summary Judgment are
granted as to those claims relating to the January Letter. Defendants’ motions are
denied as to those claims relating to Defendants’ state court collection actions and
service of process.
V. ORDERS
IT HEREBY IS ORDERED, that Defendants’ Motions for Summary Judgment
(Docket Nos. 63, 64) are GRANTED in part and DENIED in part.
SO ORDERED.
Dated: October 23, 2011
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
17
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