Graziano v. Harrison, Civ. No. 90-1707(DRD).

• Citation: 763 F. Supp. 1269
• Decision Date: 02 January 1991
• Docket Number: Civ. No. 90-1707(DRD).
• Parties: Anthony GRAZIANO, Plaintiff, v. Michael HARRISON, Defendant.
• Court: U.S. District Court — District of New Jersey

763 F. Supp. 1269

Anthony GRAZIANO, Plaintiff, v. Michael HARRISON, Defendant.

Civ. No. 90-1707(DRD).

United States District Court, D. New Jersey.

January 2, 1991.

COPYRIGHT MATERIAL OMITTED

Dawn K. Miller, UAW-GM Legal Services Plan, UAW-Ford Legal Services Plan, Woodbridge, N.J., for plaintiff.

Michael Harrison, pro se.

OPINION

DEBEVOISE, District Judge.

Plaintiff Anthony Graziano brings this action under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., against defendant Michael Harrison for allegedly engaging in unlawful debt collection practices. Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that the undisputed record reveals no violations of the Act. Plaintiff has filed a cross-motion for partial summary judgment, asserting that the facts demonstrate violations of the Act and require judgment in plaintiff's favor on some of his claims.

FACTS

Defendant Michael Harrison is an attorney admitted to the bar of the State of New Jersey and maintains a debt collection practice in the state. See Harrison Affidavit ¶ 2. A large portion of this practice is devoted to the collection of debts owed to "hospital-based physician groups". Id. On April 28, 1989, defendant sent plaintiff a form-letter collection notice for $80.00 allegedly owed to Valley Emergency Associates, P.A. That letter indicated that the amount stated was due on account number MVE03147489 hereafter "Account 1".¹

A brief description of that letter is in order. The text of the letter reads as follows:

As you are aware, this office represents VALLEY EMERGENCY ASSOC P.A. Your account still remains unpaid in the amount of $80.00 for services rendered at VALLEY EMERGENCY ASSOC P.A. Therefore, be advised that if your account is not resolved within ten (10) days from the above date, this office will immediately institute suit against you without further notice.

Please note your account number and patient name on your check in order to insure proper credit.

Thank you for your anticipated cooperation.

Id., Exhibit A; Complaint, Exhibit A. This text is printed in dot matrix type onto a printed form.

The form also states that the debtor should "See reverse side for information regarding your legal rights!" Id. This message is part of the printed form and is printed in darker, solid type though somewhat smaller in point size than the dot matrix printing. The statement of debtor's rights on the reverse side of the collection notice states:

Unless within 30 days after receipt of this letter, you formally dispute in writing the validity of the debt or any portion thereof, it will be assumed to be valid. If you dispute the debt or any portion thereof or request any information concerning the creditor, verification of the debt will be mailed to you along with the name and address of the creditor if different from the one providing the services. This is required under the Fair Debt Collection Practices Act.

The purpose of this communication is to collect the debt which is the subject of this letter. Any information obtained will be used for the purpose of collecting the debt.

Harrison Affidavit, Exhibit A; Complaint, Exhibit A. This statement of rights is legible and the only writing on the reverse side of the collection notice.

Defendant received a letter of representation from plaintiff's attorney dated May 11, 1989. That letter advised defendant that the debt for $80.00 should be regarded as disputed and demanded that defendant: (1) cease further direct communication with plaintiff, and (2) provide verification of the debt for $80.00. Harrison Affidavit, Exhibit B; Complaint, Exhibit B. Defendant obliged the second request by sending a statement of account prepared by Valley Emergency Associates, P.A., dated May 16, 1989, showing an outstanding balance of $80.00. See Harrison Affidavit, Exhibits D and E; Complaint, Exhibit C. Plaintiff's attorney responded with a letter stating that the Statement of account was insufficient validation of the purported debt. Harrison Affidavit, Exhibit D; Complaint, Exhibit D. Defendant then forwarded a copy of a bill for services rendered by Valley Emergency Associates, P.A., in the amount of $80.00. Harrison Affidavit, Exhibit D. The final correspondence pertaining to this account was a statement of account dated August 8, 1989, showing that the balance due had been paid in full by check from an insurance carrier on July 27, 1989. Complaint, Exhibit F.

While defendant was preparing validation information on Account 1, he discovered that plaintiff had another delinquent account, Number MVE03083006, with a balance of $35.00 due for services rendered on May 27, 1988 hereafter "Account 2". A bill and statement of account were sent to plaintiff's attorney along with the validation information on Account 1. Defendant never sent a collection notice to either plaintiff or his attorney with respect to Account 2. No further action was taken to collect on this account. Harrison Affidavit ¶ 9.

Defendant sent a second collection notice directly to plaintiff dated February 12, 1990, concerning a balance due of $20.00 on Valley Emergency Associates, P.A., account number MV303126130 hereafter "Account 3" for services rendered on April 12, 1988. Harrison Affidavit, Exhibit I; Complaint, Exhibit I. According to defendant, this account was referred to him by his client, Valley Emergency Associates, on February 7, 1990. Harrison Affidavit ¶ 10. Plaintiff received a third collection notice, also dated February 12, 1990, regarding $22.56 allegedly owed to Ridgewood Cardiology Associates on account number MVC03175066 hereafter "Account 4". See Harrison Affidavit, Exhibit J; Complaint, Exhibit H. Defendant states that this Account was referred to him on February 9, 1990. Harrison Affidavit ¶ 10. The record reveals no subsequent communication from either plaintiff or defendant regarding either of these accounts. The format of these collection letters differed in two material respects from that on the notice sent on Account 1: (1) the statement on the front of the notice, informing debtors to look on the reverse side of the form for a statement of their rights and obligations, was printed in darker, larger block type than in the first notice form; and (2) the text of the letter did not threaten to immediately file suit if the debt was not resolved within ten days. The text of the letters sent to collect on Accounts 3 and 4 stated in pertinent part:

Your account is long past due. It is, therefore, necessary that you promptly resolve this matter. Please note your account number and patient name on your check in order to insure proper credit.

Thank you for your anticipated cooperation.

See Harrison Affidavit, Exhibits I and J. There were no further communications between the parties pertaining to these Accounts.

Plaintiff filed a Complaint with the Clerk of this Court on April 27, 1990. The Complaint alleged that defendant had violated the Fair Debt Collection Practices Act, 28 U.S.C. § 1692, et seq., by: (1) failing to state that each communication was for the purpose of collecting a debt as required by 15 U.S.C. § 1692e(11); (2) failing to provide sufficient validation of the debts as required by 15 U.S.C. § 1692g; (3) falsely representing the character, amount, or legal status of the debt in violation of 15 U.S.C. § 1692e(2); (4) failing to cease direct communication with plaintiff after receiving notification of representation by an attorney as required by 15 U.S.C. § 1692c(a)(2); (5) threatening action which was not intended to be taken in violation of 15 U.S.C. § 1692e(5); (6) threatening action which could not legally be taken in violation of 15 U.S.C. § 1692e(5); and (7) harassing, oppressing, or abusing plaintiff within the meaning of 15 U.S.C. § 1692d. Complaint ¶ 10. Plaintiff also claims that defendant violated the Act by failing to stop all attempts to collect the debt after being notified that the debt was disputed as called for by 15 U.S.C. § 1692g(b).² Plaintiff requests statutory damages, actual damages and attorney's fees as compensation for these alleged violations of the Act pursuant to 15 U.S.C. § 1692k.

Defendant filed this motion for summary judgment on November 14, 1990, claiming he is entitled to judgment in his favor as a matter of law on all claims alleged in the Complaint. Plaintiff filed a cross-motion on November 26, 1990, for partial summary judgment on the seven claims enumerated above and on the issues of statutory damages and attorney's fees.

DISCUSSION

Summary judgment must be granted where the moving party establishes that "there is no genuine issue as to any material fact and that ... it is entitled to a judgment as a matter of law." Fed.R. Civ.P. 56(c). Once the moving party has carried its burden under Rule 56(c), "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986), rev'g 723 F.2d 238 (3d Cir.1983). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. First Nat. Bank v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968), reh'g denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968); Sound Ship Bldg. Corp. v. Bethlehem Steel Co, 533 F.2d 96, 99 (3d Cir.1976), cert. denied, 429 U.S. 860, 97 S.Ct. 161, 50 L.Ed.2d 137 (1976).

The Supreme Court has explained that "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. A disputed factual matter is a "genuine" issue if "the evidence presents a sufficient disagreement to require submission to a jury." Anderson...