Gomez v. Resurgent Capital Servs., LP

• Decision Date: 22 September 2015
• Docket Number: No. 13 Civ. 7395(RWS).,13 Civ. 7395(RWS).
• Parties: Carmen GOMEZ, Plaintiff, v. RESURGENT CAPITAL SERVICES, LP and LVNV Funding, LLC, Defendants.
• Court: U.S. District Court — Southern District of New York

129 F.Supp.3d 147

Carmen GOMEZ, Plaintiff,

v.RESURGENT CAPITAL SERVICES, LP and LVNV Funding, LLC, Defendants.

No. 13 Civ. 7395(RWS).

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

Signed Sept. 22, 2015.

Filed Sept. 23, 2015.

Law Office of Ahmad Keshavarz, by: Ahmad Keshavarz, Esq., Brooklyn, NY, for the Plaintiff.

Hinshaw & Culberson LLP, by: Concepcion A. Montoya, Esq., Han Sheng Beh, Esq., Jason Joseph Oliveri, Esq., New York, NY, for the Defendants.

OPINION

SWEET, District Judge.

Two duelling motions for summary judgment are currently pending before the Court in this unfair debt collection practices case: one filed by Defendants Resurgent Capital Services, LP ("Resurgent") and LVNV Funding, LLC ("LVNV," collectively with Resurgent, the "Resurgent Defendants" or the "Defendants") seeking dismissal of the complaint filed by Plaintiff Carmen Gomez ("Gomez" or the "Plaintiff"), and one filed by Gomez seeking summary judgment on liability against the Resurgent Defendants, with proceedings to continue regarding the amount of damages. (Dkt. Nos. 57 & 79.) Also pending is Resurgent's motion for a protective order covering certain documents submitted by Gomez in her summary judgment briefing. (Dkt. No. 97.) For the reasons stated below, both summary judgment motions are granted in part and denied in part, and the motion for a protective order is granted.

Prior Proceedings

Gomez brought this case on October 18, 2013, filing a complaint against former defendants Inovision–Medclr Portfolio Group, LLC; Peter T. Roach & Associates, P.C.; Kirschenbaum, Phillips & Roach, P.C.; Timothy Murtha; NCO Financial Systems, Inc., and the two remaining defendants, LVNV Funding, LLC and Resurgent Capital Services, LP. (Dkt. No. 1.) The Complaint alleged that the defendants had engaged in abusive debt collection practices in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (the "FDCPA"), the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., New York General Business Law § 349, and New York Judiciary Law § 487.¹ (See generally id. )

On January 14, 2014, defendants Inovision–Medclr Portfolio Group, LLC and NCO Financial Systems, Inc. made Gomez an offer of judgment pursuant to Fed.R.Civ.P. 68, which Gomez accepted two weeks later. (See Dkt. No. 22.) The Court dismissed those two defendants on June 5, 2014. (Dkt. No. 33.) In March of 2014, the parties agreed to a Protective Order governing the treatment of confidential information, which the Court approved on June 25, 2014. (Dkt. No. 41.) On January 13, 2015, Gomez dismissed her claims against defendants Peter T. Roach and Associates, P.C.; Kirschenabaum & Phillips, P.C.; and Timothy Murtha pursuant to a settlement agreement. (Dkt. Nos. 68 & 70.)

The Resurgent Defendants filed their motion for summary judgment on December 30, 2014. (Dkt.Nos.56–62.) Gomez filed her opposition papers on January 24, 2015 (Dkt.Nos.72–75), and then filed her own motion for partial summary judgment five days later. (Dkt.Nos.79–83.) The Resurgent Defendants filed papers on February 18, 2015 replying to Gomez' opposition to its summary judgment motion and opposing the one she filed. (Dkt. No. 87–88.) Gomez filed her reply brief in support of her summary judgment motion on March 5, 2015 (Dkt. No. 92), and the Resurgent Defendants filed a sur-reply on March 26, 2015. (Dkt. No. 96.) The motion was head on submission on March 4, 2015. (See Dkt. No. 86.)

The Resurgent Defendants filed their motion for a protective order on March 26, 2015. (Dkt. No. 97–99.) Gomez filed her opposition on April 9 (Dkt. No. 102) and Resurgent filed its reply on April 13. (Dkt. No. 103.)

The Facts

The facts are set forth in the parties' various Rule 56.1 Statements (Dkt. Nos. 61, 75, 82, & 88) and are not in dispute except as noted below.

The events that gave rise to this case began on September 12, 2005, when Mel S. Harris and Associates, LLC filed a lawsuit against Gomez, seeking to collect a debt she had allegedly incurred to Chase Bank, U.S.A., N.A. ("Chase"), which was later assigned to Inovision–Medclr Portfolio Group, LLC ("Inovision"). The parties dispute whether Gomez was ever served; an affidavit of service says that she was served on September 28, 2005, but Gomez states that she never received notice of the lawsuit and speculates that she may have been the victim of "sewer service." Either way, it is undisputed that Gomez did not appear in the suit, and a default judgment was entered against her.

The history of the alleged debt is a tangled one. Gomez admits that she had an account with Chase, but maintains that she ceased using it in or before 1995, rendering the validity of any action regarding it in 2005 dubious. Although the lawsuit regarding the debt was brought by Inovision, Gomez questions whether Chase ever sold that account to anyone and states that there is no evidence that title to the account ever passed from Chase to Inovision. Defendants state that Inovision sold Gomez' debt to Sherman Originator III, LLC ("Sherman"), a nonparty to this case, and that Sherman transferred the debt to defendant LVNV Funding, LLC ("LVNV"). Gomez questions whether the alleged paperwork of those sales, which covers an unknown number of accounts, actually includes hers, since they make no specific mention of her. She also states that she never received any notice that her debts had been assigned and argues that any attempt to collect the debts is therefore invalid.

Defendants utilized a chain of entities to collect Gomez' debt. LVNV had a contractual relationship with Resurgent, its "master servicer." Resurgent then hired the law firm of Eltman, Eltman and Cooper, P.C. ("EEC") to collect on the judgment against Gomez. EEC in turn retained Peter T. Roach and Associates, P.C. (together with successor firm Kirschenbaum, Phillips & Roach, P.C., "Roach") to collect on the judgment. Roach employed former defendant Timothy Murtha ("Murtha") as an attorney to handle the case. Roach also used another corporation, Global Connect, to make automated calls.

On or around October 19, 2012, Murtha signed an information subpoena and restraining notice to be sent to Municipal Credit Union, Gomez' bank, seeking to enforce the judgment against her. The parties differ on how much attention Murtha put into the notice. Gomez cites Murtha's deposition from another civil lawsuit involving Roach, in which he estimated he signed approximately 400 postjudgment enforcement documents per week, and alleges that Murtha "robo-signed" her notice without actually reviewing its merits. Defendants note that in this case Murtha testified that he executes approximately two and a half postjudgment execution devices per work day, and contend that he did not "robo-sign" the document.

MCU sent a copy of the restraining notice to Gomez on November 7, 2012. On December 5, 2012, Gomez sent a letter to Roach saying that she had no knowledge of the debt, stating that the statute of limitations on the debt had expired, and requesting proof of the debt. She also requested not to be called on her cellular phone. On December 11, 2012, Roach sent Gomez a letter seeking to collect a judgment of $2,366.46, plus interest at a rate of 9 percent annually, amounting to $3,864.91 in total. The check was to be made payable to Roach.

During this time, Gomez states that she continued receiving debt collection phone calls. She received debt collection calls to her cellular phone on November 21, 27, and 29, 2012; December 4, 7, and 31, 2012; and January 7, 18, and 19, 2013.² Roach's records indicate that additional calls were made.

Gomez filed an Order to Show Cause in Bronx Civil Court, seeking to vacate the 2005 judgment against her. On February 19, 2013, the Honorable Ruben Franco signed the Order, which required that all debt collection activities be stayed. On March 8, 2013, Judge Franco vacated the default judgment and ordered that "any funds including fees in the possession of [LVNV], [the] City Marshal, or any other agent shall be returned to [Gomez] forthwith." However, even after Judge Franco's order was entered, the City Marshal continued to garnish Gomez' wages three times on Defendants' behalf, totalling roughly $400, with a similar amount being taken and held in trust. Gomez also filed an answer and a motion to dismiss in the original debt collection action. Her motion to dismiss was granted on May 31, 2013.

Gomez alleges that she has suffered severe emotional distress as a result of the debt collection actions taken against her, including the phone calls she received, the restraints placed on her bank account, and the garnishment of her wages. According to her, she could not sleep and suffered "extreme stomach pain after every meal," and even had suicidal thoughts. It is undisputed that she incurred attorney's fees in fighting the attempts to collect the debt. Gomez estimates that the fees amount to over $1,500; Defendants assert that her evidence for that total is lacking and deny that the amount is so high.

Applicable Standard

Summary judgment is appropriate only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The relevant inquiry on application for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251–52, 106 S.Ct. 2505. A court is not charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial. Westinghouse Elec. Corp. v. N.Y. City Transit Auth., 735 F.Supp. 1205, 1212 (S.D.N.Y.1990)(quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505).

As to the motion...