Pettitt v. Chiari & Ilecki, LLP

• Decision Date: 16 December 2019
• Docket Number: 1:17-CV-00640 EAW
• Parties: Charles PETTITT, Plaintiff, v. CHIARI & ILECKI, LLP, Defendant.
• Court: U.S. District Court — Western District of New York

419 F.Supp.3d 627

Charles PETTITT, Plaintiff,

v.CHIARI & ILECKI, LLP, Defendant.

1:17-CV-00640 EAW

United States District Court, W.D. New York.

Signed December 16, 2019

Seth Andrews, Timothy Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff.

Terrence M. Connors, Caitlin M Higgins, Kate G. Howard, Vincent E. Doyle, III, Connors LLP, Buffalo, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

BACKGROUND

Plaintiff Charles Pettitt ("Plaintiff") commenced this action on July 12, 2017, alleging that defendant Chiari & Ilecki, LLP ("Defendant") violated the Fair Debt Collection Practices Act ("FDCPA") under 35 U.S.C. § 1962 et seq. , by attempting to collect a debt owed by Plaintiff to family law attorney Ann Giardina Hess ("Hess") based on a judgment in the amount of $1,110.55 obtained over 20 years ago—on April 16, 1992. (Dkt. 1).

The case was originally assigned to United States District Judge Lawrence J. Vilardo, who issued an order of recusal on July 14, 2017. (Dkt. 3). The case was then reassigned to United States Senior District Judge William M. Skretny, who issued a referral order to United States Magistrate Judge Jeremiah J. McCarthy for all pre-trial matters, including dispositive motions, pursuant to 28 U.S.C. § 636(b)(1). (Dkt. 17; Dkt. 69).

On May 30, 2019, Judge McCarthy issued a Report and Recommendation (the "R & R"), recommending that Defendant's motion for summary judgment be partially granted, dismissing Plaintiff's claim for abuse of process. (Dkt. 87 at 10). Additionally, Judge McCarthy determined that:

(1) collection of the 1992 judgment against [Plaintiff] was not permitted by law in 2016; (2) in 2016 [Defendant] did not intend to violate the FDCPA; and (3) in 2016 [Defendant] had a subjective good faith belief that [Plaintiff] had acknowledged the debt in 2006.

(Id. ). Based on these conclusions, Judge McCarthy recommended that the pending motions for summary judgment be otherwise denied. (Id. ). On June 3, 2019, Judge Skretny recused himself, and the matter was reassigned to the undersigned. (Dkt. 88). Plaintiff and Defendant both filed objections to the R & R. (Dkt. 89; Dkt. 91). The parties filed responses on July 22, 2019. (Dkt. 95; Dkt. 96). Familiarity with the R & R and underlying facts of this matter, as set forth in the R & R, is assumed for purposes of this Decision and Order.

After conducting a careful de novo review of the R & R, and the record in this matter, see 28 U.S.C. § 636(b)(1)(C), the Court adopts the R & R in its entirety. This Decision and Order addresses the specific objections raised by each party.

DISCUSSION

I. Judgment Collectability

Judge McCarthy concluded that the 1992 judgment was uncollectable. (Dkt. 87 at 6). Judge McCarthy found Hess's deposition testimony was "insufficient to create a genuine issue of material fact as to whether [Plaintiff] had acknowledged the debt." (Id. ) (citing Rojas v. Roman Catholic Diocese of Rochester , 660 F.3d 98, 106 (2d Cir. 2011) ("in certain circumstances a party's inconsistent and contradictory statements transcend credibility concerns and go to the heart of whether the party has raised genuine issues of material fact to be decided by a jury.")).

Defendant objects on the grounds that Judge McCarthy erred by making a credibility determination as to Hess, arguing there was additional evidence from which a reasonable jury could find Plaintiff had signed a written acknowledgment. (Dkt. 91 at 4-6). Specifically, Defendant cites Plaintiff's statement that funds were removed from his restrained bank account, and a draft of the signed written acknowledgment. (Id. at 5). The Court finds Defendant's arguments are without merit.

Plaintiff's deposition testimony regarding the removal of funds from his Bank of America account does not raise a genuine issue of material fact as to whether Plaintiff signed a written acknowledgment. Plaintiff testified that his account was restrained in connection with the 1992 judgment by Defendant. (See Dkt. 67-5 at 89). Plaintiff testified the account contained $300.00, but that Bank of America had removed $100.00 in "service fees for the paperwork," $5.00 a month as a service charge, and $15.00 a month after the account had insufficient funds. (Id. at 92-96). As such, Plaintiff only testified that the funds were removed by Bank of America for service charges. He did not testify that the funds were removed by a creditor executing the 1992 judgment pursuant to a signed written acknowledgment. Defendant has not submitted evidence demonstrating otherwise. Accordingly, the removal of funds does not raise an issue of fact as to whether Plaintiff signed a written acknowledgment of the 1992 judgment.

The draft template of the written acknowledgment also does not raise a genuine issue of material fact as to whether Plaintiff signed a written acknowledgment. The template is a draft of a "Turnover Authorization and Agreement." (Dkt. 67-16 at 3-4; Dkt. 68-12 at 1-2). The draft provides that Plaintiff authorizes Bank of America to withdraw and forward to Hess "all monies contained in accounts maintained in [his] name." (Id. at 1). The draft also provides that upon the forwarding of such monies, Hess authorizes the removal of the restraint upon Plaintiff's account. (Id. ). Significantly, the template is not dated, is not signed by either Plaintiff or Hess, and does not include an acknowledgment of the 1992 judgment.

Additionally, it is unlikely the Court can even consider the draft template. Pursuant to Federal Rule of Evidence 901(a), the proponent of an item of evidence "must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). However, Hess, the purported author, testified that she had no "independent recollection" as to whether the document was ever signed. (Dkt. 70-3 at 33). Additionally, there is no testimony from Lisa the "techie," who located the document pursuant to the subpoena, authenticating the template. As such, because the template is not in admissible evidentiary form, it cannot be used to raise a genuine issue of material fact as to whether Plaintiff signed a written acknowledgment. See GlobalRock Networks, Inc. v. MCI Communs. Servs. , 943 F. Supp. 2d 320, 335 (N.D.N.Y. 2013) (evidence not in admissible evidentiary form so as to be considered on summary judgment because it had not been properly authenticated through testimony or an affidavit from its author); Lachira v. Sutton , No. 3:05cv1585 (PCD), 2007 WL 1346913, at *3 (D. Conn. May 7, 2007) (plaintiff had not met burden of authenticating letter, in part, where plaintiff did not reference letter in her affidavit, attest date on which letter was written, and state whether letter was actually mailed).

Additionally, the Court finds Judge McCarthy did not err in rejecting Hess's statements about the purported authorization. In her affidavit, Hess affirmatively represented that she had obtained Plaintiff's signed written acknowledgment. (See Dkt. 68-13). Hess's affidavit, in relevant part, provides:

4. In 2006, Plaintiff signed a document that both acknowledged the judgment and extended the statute of limitations.

Likewise, the document released his bank account for purposes of paying the judgment, to the extent the account contained the money, less any bank charges.

...

7. If I had not obtained Plaintiff's acknowledgment of the judgment, I would never have retained [Defendant] to collect on the judgment, as Mr. Ilecki confided that he did not want to collect any judgment files unless he had approximately ten years to enforce same.

(Id. at 1-2). However, at her deposition, Hess consistently testified that she did not have personal knowledge as to her statements in her affidavit. (See Dkt. 68-11 at 33 (upon being asked whether she witnessed Plaintiff sign the acknowledgment, Hess answers "I don't recall"), 34 (upon being asked whether she had physically ever seen the acknowledgment, Hess answers "I don't know"), 35 (upon being asked whether she had personal knowledge for her statement in her affidavit that Plaintiff had signed a written acknowledgment, Hess answers "Do I recall, no"), 41 (upon being asked whether she recalled holding a signed copy of Plaintiff's written acknowledgment, Hess answers "I don't recall"); Dkt. 70-3 at 126 (upon being asked whether she had personal knowledge as to her affidavit statement that Plaintiff signed the written acknowledgment, Hess answers "I can't say personally – I can't say I have personal knowledge")).

In fact, Hess testified that her affidavit was based not on her own personal knowledge, but rather based on the fact that Defendant had proceeded with collection activities. (See Dkt. 70-3 at 118 ("If he didn't have the right documents, he wouldn't have proceeded with that. He always made sure he had what he needed. I turned the things over. He wouldn't proceed if he didn't have everything he needed. That was the history of these many cases.")). At the summary judgment stage, Hess's affidavit, which was not based on personal knowledge, is insufficient to create an issue of fact. See Fitzgerald v. Henderson , 251 F.3d 345, 361 (2d Cir. 2001) (a party opposing summary judgment "must present affidavits, based on personal knowledge, ... setting forth such facts as would be admissible in evidence, and as to which the affiant would be competent to testify"); United States v. Private Sanitation Indus. Ass'n , 44 F.3d 1082, 1084 (2d Cir. 1995) (an affidavit not based upon personal knowledge does "not suffice to create an issue of fact precluding summary judgment").¹

In light of the above, Judge McCarthy correctly found that the record here presented the case where "a party's inconsistent and contradictory statements transcend credibility concerns and go to the heart of whether the party has raised genuine issues of material fact to be decided by a jury." Rojas , 660 F.3d at 106. Plaintiff denied having signed...