Bodur v. Palisades Collection, LLC, 11 Civ. 3475 (AJP).

• Decision Date: 15 December 2011
• Docket Number: No. 11 Civ. 3475 (AJP).,11 Civ. 3475 (AJP).
• Citation: 829 F.Supp.2d 246
• Parties: Ibrahim Niyazi BODUR, Plaintiff, v. PALISADES COLLECTION, LLC and Pressler and Pressler, LLP, Defendants.
• Court: U.S. District Court — Southern District of New York

829 F.Supp.2d 246

Ibrahim Niyazi BODUR, Plaintiff,

v.PALISADES COLLECTION, LLC and Pressler and Pressler, LLP, Defendants.

No. 11 Civ. 3475 (AJP).

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

Dec. 15, 2011.

Jesse Dennis Langel, New York, NY, for Plaintiff.

Jonathan Justin Greystone, Spector Gadon & Rosen, P.C., Philadelphia, PA, Mitchell Lee Williamson, Pressler and Pressler, Parsippany, NJ, for Defendants.

OPINION AND ORDER

ANDREW J. PECK, United States Magistrate Judge:

Plaintiff Ibrahim Bodur brings this action alleging that defendants Palisades Collection, LLC and Pressler and Pressler, LLP violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and New York General Business Law (“GBL”) § 349 when, inter alia, they attempted to collect a debt from Bodur that they knew he did not owe. ( See Dkt. No. 1: Compl.)

Presently before the Court are the parties' cross-motions for summary judgment. (Dkt. No. 16: Defs. Notice of Motion; Dkt. No. 20: Bodur Notice of Motion). The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 15: § 636 Consent; Dkt. No. 21: Langel 10/28/11 Aff. Ex. 9: 9/27/11 Conf. Tr. at 18–19.)

For the reasons set forth below, Bodur's summary judgment motion is GRANTED against Pressler but DENIED against Palisades. Defendants' summary judgment motion is DENIED for Pressler but GRANTED for Palisades. In short, Palisades is dismissed, liability is established against Pressler, and damages remain for determination.

FACTS

On August 18, 2006, the Pressler law firm ¹ obtained a $1,126 judgment for its client Palisades in Kings County Civil Court against Ibraham Bodur, living at 2370 Ocean Avenue, Apt. 1 L, Brooklyn, NY, for an unpaid AT & T Wireless bill. (Dkt. No. 19: Greystone 10/28/11 Aff. Ex. I: Defs. Rule 56.1 Stmt. ¶¶ 2, 11, 13–14; Dkt. No. 20: Bodur Rule 56.1 Stmt. ¶¶ 1, 3; Dkt. No. 21: Langel 10/28/11 Aff. Ex. 6: 8/18/06 Judgment; Dkt. No. 26: Greystone 11/10/11 Aff. Ex. I: Defs. 2d Rule 56.1 Stmt.² ¶ 1; Langel 11/10/11 Aff. Ex. 10: Bodur 2d Rule 56.1 Stmt. ¶ 10.)

Plaintiff Ibrahim Bodur is the Vice President of Information Technology and Infrastructure at New York Institute of Technology, overseeing a $4 million budget. (Dkt. No. 1: Compl. ¶ 14.) Plaintiff Ibrahim Bodur lives at 420 South Chelsea Road, White Plains, NY, and has never lived in Brooklyn. (Defs. Rule 56.1 Stmt. ¶ 13; Bodur Rule 56.1 Stmt. ¶ 2; Defs. 2d Rule 56.1 Stmt. ¶ 2.) Attempting to collect Palisades' civil judgment, Pressler sent a February 1, 2008 collection letter addressed to Ibraham Bodur to plaintiff Ibraham Bodur's White Plains address. (Defs. Rule 56.1 Stmt. ¶¶ 2, 3, 14; Bodur Rule 56.1 Stmt. ¶ 5; Langel 10/28/11 Aff. Ex. 4: 2/1/08 Pressler Letter; Defs. 2d Rule 56.1 Stmt. at pp. 3–4, 6; Bodur 2d Rule 56.1 Stmt. ¶¶ 1–3, 6.) ³ In response, Ibrahim Bodur called Pressler on February 8, 2008, provided his date of birth and Social Security number; Pressler confirmed that Bodur was not the debtor and promised to remove Ibrahim Bodur from its file. (Defs. Rule 56.1 Stmt. ¶ 8; Bodur Rule 56.1 Stmt. ¶ 6; Defs. 2d Rule 56.1 Stmt. ¶ 1 at p. 3, ¶¶ 4, 6; Bodur 2d Rule 56.1 Stmt. ¶¶ 3, 9.) ⁴

Despite acknowledging that Ibrahim Bodur was not the debtor ( see n.4), Pressler sent a February 18, 2011 collection letter addressed to Ibraham Bodur to Ibrahim Bodur's address, attaching the August 18, 2006 judgment and stating that it would “proceed to enforce this judgment until an arrangement is agreed to or the judgment is paid in full.” (Defs. Rule 56.1 Stmt. ¶¶ 4, 14; Bodur Rule 56.1 Stmt. ¶ 8; Langel 10/28/11 Aff. Ex. 6: 2/18/11 Pressler Letter & 8/18/06 Judgment; Defs. 2d Rule 56.1 Stmt. ¶ 1 at pp. 3–4, ¶ 8; Bodur 2d Rule 56.1 Stmt. ¶ 3.) The August 18, 2006 judgment named Ibraham Bodur and listed the debtor's address as 2370 Ocean Avenue, Apt. 1L, Brooklyn, NY. (8/18/06 Judgment.) The February 18, 2011 collection letter also included a “Notice to Judgment Debtor or Obligor,” addressed to Ibraham Bodur at Ibrahim Bodur's address, stating that “[m]oney or property belonging to you may have been taken or held in order to satisfy a Judgment or Order which has been entered against you.” (Bodur Rule 56.1 Stmt. ¶ 8; Langel 10/28/11 Aff. Ex. 6: 2/18/11 Notice; Defs. 2d Rule 56.1 Stmt. ¶ 8.)

Thinking that he was “a victim of mistaken identity,” plaintiff Ibrahim Bodur was concerned that the collection letter referred to him and could lead to financial trouble. (Bodur Rule 56.1 Stmt. ¶¶ 9, 13; Bodur 2d Rule 56.1 Stmt. ¶ 4.) ⁵ Bodur spoke with his bank manager who informed him that Bodur's “assets were at risk if his name and address matched the enforcement documents.” (Bodur Rule 56.1 Stmt. ¶ 10; Bodur Dep. at 42.) ⁶ This information exacerbated Bodur's pre-existing “stress induced heart palpitations” and caused him stress, sleep loss and anxiety “that lasted several days and weeks.” (Bodur Rule 56.1 Stmt. ¶¶ 11–12.)

Represented by counsel, on May 20, 2011 Bodur filed this lawsuit alleging that Pressler and Palisades violated several provisions of the FDCPA and GBL § 349 when, inter alia, they attempted to collect a debt from Ibrahim Bodur that they knew he did not owe. (Compl.) Ibrahim Bodur seeks actual damages for, inter alia, “sleep deprivation; constant anxiety; nervousness; fear; worry; fright; shock; strain to his marriage; humiliation; intimidation; lost concentration at work; and instability.” (Compl. ¶¶ 27, 37.) Bodur also seeks statutory damages, attorney's fees and court costs. (Compl. ¶¶ 25–26, 38.)

The Parties' Motions

Bodur's summary judgment motion argues that Pressler violated the FDCPA by trying “to collect a debt that he did not owe” even after Pressler knew he was not the debtor. (Dkt. No. 22: Bodur Br. at 4, 8.) Bodur further argues that Palisades is vicariously liable for its agent Pressler's FDCPA violation. (Bodur Br. at 9.) Bodur asserts that he is entitled to summary judgment because “defendants have no cognizable defense for dunning the wrong person.” (Bodur Br. at 4.)

Defendants cross-moved for summary judgment, arguing that “Pressler was not attempting to collect a debt from Plaintiff,” but rather “was attempting to collect a debt from Defendant/Debtor, Ibraham Bodur.” (Dkt. No. 18: Defs. Br. at 21.) Specifically, defendants argue that the collection letters sent to Ibrahim Bodur's home were addressed to Ibraham Bodur and listed a Brooklyn address where plaintiff Ibrahim Bodur admittedly never had lived. (Defs. Br. at 21.) Defendants argue that Ibrahim Bodur “had no reason to believe” that they were “attempt[ing] to collect a debt from him.” (Defs. Br. at 21.) Additionally, Palisades argues that it could not have violated the FDCPA because it never communicated with Ibrahim Bodur or mailed any letters to his address. (Defs. Br. at 30–31.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that the “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509–10, 91 L.Ed.2d 202 (1986); Lang v. Ret. Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552–53.

To defeat a summary judgment motion, the non-moving party must do “more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Instead, the non-moving party must “cit[e] to particular parts of materials in the record” to show that “a fact ... is generally disputed.” Fed.R.Civ.P. 56(c); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (At summary judgment, “[t]he time has come ... ‘to put up or shut up.’ ” (citations omitted)), cert. denied, 540 U.S. 811, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003).

In evaluating the record to determine whether there is a genuine issue as to any material fact, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513.⁷ The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987). “If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper.” Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1...