Sasscer v. Donnelly et al
Filing
30
MEMORANDUM and ORDER granting in part and denying in part 25 pltf's Motion for entry of Judgment; Clerk of Court is directed to enter judgment in favor of pltf re FDCPA and the PA Fair Crediti Extension Uniformity Act; and denying re PA Unfair Trade Practices and Consumer Protection Law; pltf may file m/for atty fees w/i 14 days of this order. Signed by Honorable James M. Munley on 12/27/11 (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CATHY SASSCER,
Plaintiff
:
No. 3:10cv464
:
:
(Judge Munley)
v.
:
:
JAMES D. DONNELLY and DOES
:
1-10, inclusive,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court is Plaintiff Cathy Sasscer’s motion for entry of
judgment (Doc. 25). Having been fully briefed, the matter is ripe for
disposition.
Background
We will recite the relevant facts as they relate to plaintiff’s instant
motion. This case arises out of dealings over a debt owed by plaintiff.
Plaintiff alleges that defendants violated her rights under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, and related state
laws. Plaintiff, a resident of Hawley, Pennsylvania, incurred a financial
obligation to Skylands Community Bank in August 2007. (Plaintiff’s
Statement of Undisputed Material Facts (Doc. 19) (hereinafter “Plaintiff’s
Statement”) ¶¶ 1, 4-5). Plaintiff contends she incurred this debt when she
purchased an automobile from Trade Zone Auto Sales in
Hackettstown, New Jersey. (Id. ¶ 5). She financed her purchase through
a promissory note executed with the bank. (Id. ¶ 6). Plaintiff subsequently
went into arrears on her payments to the bank and the creditor
repossessed the automobile and sold it at auction. (Id. ¶¶ 7-8). Defendant
James D. Donnelly, a debt collector as defined by 15 U.S.C. § 1692a(6),
thereafter contracted with the creditor to collect the debt. (Id. ¶ 9;
Defendant’s Counterstatement of Material Facts (Doc. 21) (hereinafter
“Defendant’s Statement”) ¶ 9).
Plaintiff and Defendant Donnelly exchanged a number of letters
related to plaintiff’s debt. The parties dispute a majority of the contents of
the letters and the information contained there in. On December 11, 2009,
defendant filed a lawsuit on behalf of Skylands Bank in the Gloucester
County, New Jersey Superior Court. (Id. ¶ 19). Plaintiff lived in Hawley,
Pennsylvania at the time. (Id. ¶ 20). Plaintiff signed the promissory note
that formed the basis of the lawsuit in Warren County, New Jersey. (Id. ¶
21). The promissory note contained a clause allowing the bank to institute
suit in Warren County, New Jersey. (Id. ¶ 22). On January 14, 2010,
plaintiff moved the Gloucester County court to transfer the case to Warren
County, New Jersey. (Id. ¶ 23). Upon the parties’ agreement, the
Gloucester County court transferred the case to Warren County, New
Jersey. (Id. ¶ 25). The Gloucester County courthouse is one hundred fifty
miles from plaintiff’s home. (Id. ¶ 24). The Warren County courthouse is
approximately fifty miles from plaintiff’s home. (Id.)
Plaintiff’s complaint, filed March 2, 2010, raises four causes of action.
Count I alleges violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C.§ 1692. Count II alleges violations of the
Pennsylvania Fair Credit Extension Uniformity Act, 73 PA. CONN. STAT.
ANN. § 2270.4(a), through the defendants’ violations of the federal statute.
Count III raises a state-law claim for invasion of privacy by intrusion upon
seclusion. Count IV claims violations of the Pennsylvania Unfair Trade
Practices and Consumer Protection Law, 73 PA. CONN. STAT. ANN. § 2011, et seq.
Plaintiff then served the complaint on Defendant Donnelly. Donnelly
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filed a motion to dismiss (Doc. 3), which the court denied. (Doc. 6). The
parties then agreed to plaintiff’s filing an amended complaint, which stated
the same causes of action. The parties engaged in discovery. At the close
of discovery, plaintiff filed a motion for summary judgment.
On April 20, 2011, the court granted in part and denied in part
plaintiff’s motion for summary judgment. (Doc. 23). We found that
defendant violated the 15 U.S.C. § 1692i, (“Section 1692i”), of FDCPA and
granted summary judgment in favor of plaintiff regarding that claim and
related state-law claims. We denied summary judgment as to the violation
of 15 U.S.C. § 1692g of the FDCPA and the state-law claims that related to
that section.
In a motion filed August 16, 2011, plaintiff seeks entry of judgment
based upon Section 1692i and the state-law claims. (Doc. 25). Plaintiff
withdraws all of the other counts in the amended complaint. Defendant
Donnelly filed a brief in opposition to the motion. (Doc. 28). The parties
briefed the issues, bringing the case to its present posture.
Jurisdiction
Plaintiff brings this claim pursuant to the FDCPA, 15 U.S.C. § 1692,
et seq. This court therefore has jurisdiction pursuant to 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.”). The court
has jurisdiction over plaintiff’s state law claims pursuant to 28 U.S.C. §
1367(a) (“In any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under
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Article III of the United States Constitution.”).
Discussion
Plaintiff requests that the court enter final judgment in her favor. She
seeks statutory damages and indicates that she will move pursuant to
Federal Rule of Civil Procedure 54(d)(2) for attorney’s fees and costs
following the entry of judgment. The court will address each of these
matters in turn.
A. Plaintiff’s Motion for Entry of Judgment
Federal Rule of Civil Procedure 58 states in pertinent part, “A party
may request that judgment be set out in a separate document as required
by Rule 58(a).” FED. R. CIV. P. 58(d). Plaintiff argues that because this
court granted summary judgment in her favor and she withdrew her
remaining claims, final judgment should be entered in her favor. Plaintiff
requests judgment with regard to three statutes.
First, plaintiff seeks entry of judgment under the FDCPA. Plaintiff
filed a motion for summary judgment with respect to Section 1692i under
the FDCPA. The court granted the motion and found that defendant
violated Section 1692i. Therefore, having already granted summary
judgment on the claim, we will grant plaintiff’s motion for entry of judgment
for that statute.
Next, plaintiff requests final judgment as to Pennsylvania Fair Credit
Extension Uniformity Act. 73 PA. CONN. STAT. ANN. § 2270.4(a). The court
granted summary judgment on the state law claims that relate to the
violation of the FDCPA, specifically the venue provision contained therein.
Plaintiff argues that any violation of the FDCPA is a per se violation of the
Pennsylvania Fair Credit Extension Uniformity Act. 73 PA. CONN. STAT.
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ANN. § 2270.4(a). The Fair Credit Extension Uniformity Act provides, “It
shall constitute an unfair or deceptive debt collection act or practice under
this act if a debt collector violates any of the provisions of the Fair Debt
Collection Practices Act (Public Law 95-109, 15 U.S.C. § 1692 et seq.).”
73 PA. CONN. STAT. ANN. § 2270.4(a). Therefore, as defendant violated the
FDCPA, we also find that defendant violated the Pennsylvania Fair Credit
Extension Uniformity Act and will grant plaintiff’s motion for entry of
judgment in her favor under this statute.
Finally, plaintiff requests final judgment as to the Pennsylvania Unfair
Trade Practices and Consumer Protection Law. 73 PA. CONN. STAT. ANN.
§ 201-1, et seq. Plaintiff argues that a violation under the FDCPA is a per
se violation of the Pennsylvania Unfair Trade Practices and Consumer
Protection Law. We disagree.
Plaintiff cites to a single case in support of a per se violation of the
Unfair Trade Practices. That case is readily distinguishable from the
present case. Plaintiff cites to Stuart v. AR Res., Inc. where the court
addressed a motion to dismiss. No. 10-3520, 2011 WL 904167 (E.D. Pa.,
March 16, 2011). The court found that a violation of the FDCPA
constituted a per se violation of the Pennsylvania Fair Credit Extension
Uniformity Act. Id. at *4. It also allowed for plaintiff’s claims to survive
motion to dismiss under the argument that a violation of the Pennsylvania
Fair Credit Extension Uniformity Act is a per se violation of the
Pennsylvania Unfair Trade Practices and Consumer Protection Law. Id.
Here, plaintiff’s argument skips a step in the reasoning provided by
the court in Stuart. In the instant case, we granted summary judgment to
the state-law claims as they relate to the Section 1692i venue provision of
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the FDCPA. A violation of the FDCPA is a per se violation of the
Pennsylvania Fair Credit Extension Act, as provided by statute. See 73
PA. CONN. STAT. ANN. § 2270.4(a). However, it does not necessarily follow
that a violation of the Pennsylvania Fair Credit Extension Act in this case
would be a per se violation of the Pennsylvania Unfair Trade Practices
Law. The Unfair Trade Practices Law does not have statutory provision,
similar to the one stated above in the Fair Credit Act, allowing for a per se
violation when the FDCPA statute has been violated.
Plaintiff also fails to demonstrate how defendant’s violation of the
venue provision under FDCPA violates any specific portion of the Unfair
Trade Practices and Consumer Protection Law. While the allegation that
defendant violated both Pennsylvania statutes may be sufficient to survive
a motion to dismiss in Stuart, it is not sufficient to support an entry of
judgment in favor of plaintiff in this case. Therefore, we will deny plaintiff’s
request for entry of judgment under Unfair Trade Practices and Consumer
Protection Law.
B. Plaintiff’s Request for Statutory Damages
Plaintiff seeks statutory damages of $1,100.00. She argues that the
type of violation that defendant committed, requiring plaintiff to litigate her
claims in a venue far removed from her residence and location of her
underlying debt, warrants a full award of $1,000.00 under the FDCPA.
Plaintiff also argues that she should be awarded $100.00 for a violation of
the Pennsylvania Unfair Trade Practices and Consumer Protection Law.
We agree with plaintiff in part and will grant her a portion of the statutory
damages allowed under FDCPA.
There are three standard components of liability under Section
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1692k: actual damages sustained as a result of a debt collectors failure to
comply with the statute; statutory damages as determined by the court;
and a reasonable attorney’s fee. 15 U.S.C. § 1692k(a)(2)(A); Graziano v.
Harrison, 950 F.2d 107, 113-14 (3d Cir. 1991). It is within the district
court’s discretion to determine the amount of statutory damages awarded
under FDCPA, up to $1,000.00. See Lester E. Cox Med. Ctr. v. Huntsman,
408 F.3d 989, 993 (8th Cir. 2005). A violation of an act does not
necessarily warrant an award of the maximum amount of damages. See
e.g. Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 28 (2d
Cir.1989). The court shall consider the following factors in determining an
appropriate amount: (1) the frequency and persistence of the debt
collector; (2) the nature of the noncompliance; and (3) the extent to which
the noncompliance was intentional. 15 U.S.C. § 1692k(b)(1).
In the instant case, plaintiff requests only statutory damages and
attorney’s fees, not actual damages. Plaintiff argues that because
defendant’s violation is exactly the conduct Congress aimed to prohibit in
enacting the statute, defending a debt collection suit in a distant forum, an
award of full statutory damages is appropriate.
Defendant challenges plaintiff’s contention that she was forced to
defend herself in the lawsuit filed in a distant venue, a courthouse located
in Gloucester County, New Jersey. Defendant argues that plaintiff was
only required to mail in an unopposed motion to transfer to the state court
in that county. He also claims that it is unclear who prepared the state
court motion.
This court already determined that defendant violated Section
1692i(a)(2) of the FDCPA. That provision requires that any lawsuit to
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collect a debt be filed either in the county where the debtor resides or in
the county where the parties signed the instrument. 15 U.S.C. §
1692i(a)(2). There was no dispute that defendant filed suit in Gloucester
County, New Jersey, not where plaintiff resided or where she signed the
loan documents. To what extent, if any, plaintiff was required to take
action in defending such a suit that was filed in the wrong venue is
irrelevant. Under the statute, the focus is on the defendant’s choice of
forum. Accordingly, we find defendant’s argument unpersuasive.
As for an award of statutory damages, defendant argues that plaintiff
failed to provide any evidence in support of the statutory factors to be
considered by the court in awarding damages. Defendant claims that there
is no evidence that defendant’s conduct was intentional and plaintiff only
alleged one instance of a violation of Section 1692i(a)(2), the venue
provision.
In looking to the relevant factors under Section 1692i, the court finds
that the plaintiff should be awarded statutory damages. While we agree
with defendant that the single violation of the statute may have been
unintentional, the nature of the non-compliance disturbs one of the
underlying purposes of the statutory provision. Congress enacted the
FDCPA to address “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)). Provided that defendant violated a clear statutory
venue requirement, we find that some damages should be granted.
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The issue becomes the amount of statutory damages that should be
awarded. We do not find that defendant’s conduct requires the imposition
of full statutory damages. Courts have granted full statutory damages
when the debt collector’s behavior is egregious, outrageous or continuous.
A lesser amount is due when the defendant’s behavior is isolated or a
minor non-compliance with the statute. See O’Quinn v. Recovery Partners,
Inc., No. 1:10-cv-2361, 2011 WL 2976288, at *5 (M.D. Pa. June 27, 2011)
(allowing statutory damages of $500 in a default judgment); Ford v.
Consigned Debts & Collections, Inc., No. 09-3102, 2010 WL 5392643, at
*7 (D.N.J. Dec. 21, 2010) (awarding $350 in statutory damages where
defendant’s conduct involved one threatening phone call); Romano v.
Accelerated Receivables, No. 11cv299A, 2011 WL 6091704, at *2
(W.D.N.Y. Dec. 7, 2011) (finding that $500 in statutory damages
appropriate where defendant repeated collection efforts without providing
validation upon plaintiff’s request); Proctor v. PMR Law Group, No. 09-cv1028S, 2010 WL 4174723, at *4 (W.D.N.Y Oct. 25, 2010) (granting $250 in
statutory damages because the debt collector’s actions were not persistent
or egregious as to warrant statutory maximum).
In the instant case, based on defendant’s violation and the relevant
statutory factors, we find that the amount of $400 in statutory damages is
sufficient.
Plaintiff also argues that she should be awarded $100.00 under the
Unfair Trade Practices and Consumer Protection Law, as the statute
allows for a successful plaintiffs to recover “actual damages or one
hundred dollars, whichever is greater.” 73 PA. CONN. STAT. ANN. § 2019.2. As we stated above, we do not find that plaintiff is entitled to the entry
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of judgment in her favor with regard to the Unfair Trade Practices Law;
therefore, we will not grant damages under that statute. Accordingly, we
will deny her request for $100.00 in statutory damages under the Unfair
Trade Practices and Consumer Protection Law.
C. Plaintiff’s request for attorney’s fees
Plaintiff also seeks reasonable attorney’s fees and explains that she
will move for her fees and costs pursuant to Federal Rule Civil Procedure
54(d)(2) after judgment is entered. Under Section 1692k(a)(3), the
prevailing plaintiff may recover “the costs of the action, together with a
reasonable attorney’s fee as determined by the court.” 15 U.S.C. §
1692k(a)(3). The Third Circuit held in Graziano that the award of
attorney’s fees is mandated as a means of fulfilling Congressional intent.
Graziano, 950 F.2d at 113. Therefore, we will allow for plaintiff to file for
attorney’s fees and costs related to this litigation.
Conclusion
For the reasons stated above, judgment will be entered in favor of
plaintiff with regard to the FDCPA and Pennsylvania Fair Credit Extension
Uniformity Act. Plaintiff will be awarded $400.00 in statutory damages and
an amount, to be determined, equal to the reasonable attorney’s fees and
costs related to this litigation. We will deny plaintiff’s motion for entry of
judgment under the Pennsylvania Unfair Trade Practices and Consumer
Protection Law and will deny any damages under that statute. An
appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CATHY SASSCER,
Plaintiff
:
No. 3:10cv464
:
:
(Judge Munley)
v.
:
:
JAMES D. DONNELLY, and DOES
:
1-10, inclusive,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 27th day of December 2011, plaintiff’s motion
for entry of judgment is granted in part and denied in part. (Doc. 25). The
Clerk of Court is directed to enter judgment in favor of plaintiff with respect
to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692i(a)(2), and the
Pennsylvania Fair Credit Extension Uniformity Act, 73 PA. CONN. STAT.
ANN. 2270.4(a). The court denies plaintiff’s motion for entry of judgment
with respect to the Pennsylvania Unfair Trade Practices and Consumer
Protection Law, 73 PA. CONN. STAT. ANN. 201-1, et seq. We grant
plaintiff’s request for statutory damages in the amount of $400.00 under
the FDCPA. Plaintiff may file a motion for attorney’s fees within fourteen
(14) days of the date of this order. FED. R. CIV. P. 54(d)(2)(B).
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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