Cavallaro v. Law Office of Shapiro & Kreisman
| Citation | 933 F. Supp. 1148 |
| Decision Date | 07 August 1996 |
| Docket Number | 95 Civ. 1475(SJ). |
| Parties | Joseph CAVALLARO, on behalf of himself and all others similarly situated, Plaintiff, v. The LAW OFFICE OF SHAPIRO & KREISMAN, Gerald Shapiro, esq., David Kreisman, esq. and Lillian Bass, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
COPYRIGHT MATERIAL OMITTED
Robert L. Arleo, Huntington, NY, for Plaintiff.
Julianna Lochte, New York City, for Plaintiff.
Peter Contino, Rivkin, Radler & Kremer, Uniondale, NY, for Defendants.
INTRODUCTION
Before this Court is Plaintiff's motion for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff contends that the Law Office of Shapiro & Kreisman ("Shapiro & Kreisman"), Gerald Shapiro ("Shapiro"), David Kreisman ("Kreisman"), and Lillian Bass, a legal assistant ("Bass"), (collectively "Defendants") violated the Fair Debt Collection Practices Act of 1977 (FDCPA), 15 U.S.C. § 1692. Specifically, Plaintiff alleges that letters and notices sent to him by Defendants did not properly inform him of his rights. For the reasons stated below, Plaintiff's motion is granted in part and denied in part.
The alleged violations of the FDCPA involve two written communications that Defendants sent to Plaintiff in connection with a foreclosure of a security interest in a cooperative apartment. In September 1994, Plaintiff allegedly defaulted on a secured loan for $96,000. The law firm Shapiro & Kreisman was retained to commence foreclosure proceedings in February 1994.
One month later, on March 23, 1995, Defendants sent a collection letter (the "collection letter"), together with a Debt Validation Notice (the "validation notice") on a separate sheet of paper, to Plaintiff. The collection letter was on Shapiro & Kreisman letterhead and read as follows:
The collection letter made no reference to the accompanying validation notice. The validation notice appeared as follows:
Brooklyn, New York 11218
Amount of Debt:
$96,000.00
Name of Creditor to Whom Debt is Owed:
Chase Manhattan Mortgage Corporation,
f/k/a Chase Home Mortgage
Corporation
Name of Original Creditor:
Chase Home Mortgage Corporation
Address of Original Creditor:
135 Chestnut Ridge Road
The firm represents the holder of the referenced mortgage. As a result of your default under the terms of said mortgage we have been retained to commence foreclosure proceedings.
Unless you, within thirty (30) days from the date of this notice, dispute the validity of the debt, or any portion thereof, the debt will be assumed to be valid by this office. We are not required to wait during the thirty (30) day period and may commence legal proceedings against you at any time.
If you notify this office in writing within the thirty (30) day period that the debt, or any portion thereof, is disputed, this office will obtain a verification of the debt and a copy of such verification will be mailed to you.
If you dispute the debt, this firm may commence and/or continue legal proceedings against you even while we respond to your dispute.
Any information obtained will be used in the collection of your debt. Date: March 23, 1995 Shapiro & Kreisman 122 East 42nd Street, Suite 519 New York, New York 10168 Tel (212) 818-0834 Fax (212) 972-1906
Subsequently, on April 6, 1995, Defendants sent Plaintiff a general Notice of Sale of Cooperative Apartment (the "general notice of sale"), a personal Notice of Sale of Collateral (the "personal notice of sale"), and a transmittal letter confirming delivery of the notices. The personal notice of sale read as follows:
To: Joseph Cavallaro
Plaintiff alleges that the validation notice failed to comport with the FDCPA because it was concealed, it was overshadowed and contradicted by its own language, it misstated the time for a response, it did not disclose that it was an attempt to collect a debt, and it did not offer to supply information on the original creditor. In addition, Plaintiff claims that the personal notice of sale was a debt communication and as such did not disclose, as required by the FDCPA, that the Defendants were attempting to collect a debt and that any information obtained would be used for that purpose.
Summary judgment is proper under Rule 56(c) of the Federal Rules of Civil Procedure "if the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law." Summary judgment is inappropriate where there exists a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The burden is upon the movant to establish that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Once the movant has satisfied its burden, the burden shifts to the non-movant to "set forth specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See also Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. In deciding a summary judgment motion, the Court must draw all reasonable inferences in favor of the non-movant. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986).
In addition, the Court may grant summary judgment to the non-movant sua sponte, so long as the losing party has had the opportunity to come forward with all its evidence. Celotex, 477 U.S. at 326, 106 S.Ct. at 2554. The Second Circuit has noted that in granting summary judgment sua sponte "a court need not give notice of its intention to enter summary judgment against the moving party." Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2nd Cir.1991).
Congress enacted the FDCPA "to eliminate abusive debt collection practices by debt collectors...." 15 U.S.C. § 1692(e) (1977). The FDCPA both requires and proscribes specific conduct by debt collectors. For example, under the FDCPA every initial debt communication must be accompanied within five days by a written debt validation notice. See 15 U.S.C. § 1692g(a). The FDCPA also prohibits the use of any "false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e.
The FDCPA is a strict liability statute, and therefore, does not require a showing of intentional conduct on the part of a debt collector. See e.g., Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2nd Cir.1996). Further, a single violation of the FDCPA is sufficient to establish civil liability. Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62 (2nd Cir.1993).
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