Herzlinger v. Mark L. Nichter, Mark L. Nichter, P.C.
| Decision Date | 09 February 2011 |
| Docket Number | CASE NO. 7:09-CV-00192 |
| Parties | STACEY HERZLINGER, on behalf of herself and all others similarly situated, Plaintiff, v. MARK L. NICHTER, MARK L. NICHTER, P.C., THE LAW OFFICES OF MARK L. NICHTER, TRANS-CONTINENTAL CREDIT AND COLLECTION CORP., AND STUART S. BLOOM Defendants. |
| Court | U.S. District Court — Southern District of New York |
[Resolving Docs. 119, 121, 127]1
In this putative class action alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., Plaintiff Stacey Herzlinger moves for partial summary judgment on Counts I and II of her complaint. [Doc. 119.] Defendants Mark L. Nichter, Mark L. Nichter, P.C., and The Law Offices of Mark L. Nichter (collectively, the "Nichter Defendants"), and Trans-Continental Credit and Collection Corp. and its president Stuart S. Bloom (collectively, the "Trans-Continental Defendants") oppose Plaintiff's motion and also move the Court for summary judgment on all Counts. [Doc. 121; Doc. 127.]
For the following reasons, the Court DENIES Plaintiff's motion for summary judgment and GRANTS IN PART and DENIES IN PART the Defendants' motions.
Plaintiff Stacey Herzlinger brings this putative class action on behalf of herself and all other debtors who received certain debt-collection correspondence from the Defendants. The genesis of this case is a debt-collection letter, written on Trans-Continental letterhead but enclosed in a Nichter envelop, that a shared employee of the Defendants mailed to Plaintiff Herzlinger. According to the Plaintiff, this mailing violated the FDCPA in five ways.
Defendant Trans-Continental is a nationwide debt-collection agency; Defendant Stuart Bloom is its President and has been since he founded the company in 1974. [Doc. 123-8 at 4.] Defendant Mark Nichter is an attorney whose law offices—Defendants Mark L. Nichter, P.C. and The Law Offices of Mark Nichter—"assist" Trans-Continental in the collection of debts, upon referral. [Doc. 115 at 7.] Although the Trans-Continental and Nichter Defendants are formally distinct, they share equipment, software, debt collectors, support staff, clients, accounts, collection templates, an operating manual, and an office. [Doc. 135 at 17.] Indeed, the Nichter Defendants' share all but one of their fifty-five employees with Trans-Continental. [Doc. 135 at 16.] These shared employees work primarily for Trans-Continental, devoting thirty-five hours to Trans-Continental and five hours to the Nichter Defendants, on average per week. [Doc. 108 at 29 n.18; Doc. 80 at 13.] The Trans-Continental Defendants have seventeen additional, unshared employees. [Doc. 80 at 13.]
Ray Bern, a debt collector who works for both the Nichter and Trans-Continental Defendants, sent Plaintiff Herzlinger a debt collection letter dated October 23, 2008 demandingpayment in the amount of $21,537.55, owing to Greenwich Hospital. [Doc. 115 at 2; Doc. 127-1 at 3.] The letter, typed on Trans-Continental letterhead, reads in whole:
[Doc. 120-11 at 3 (the "Herzlinger Letter").] It is undisputed that Bern sent the Herzlinger Letter in an envelop stamped "CONFIDENTIAL" with a return address of "The Law Office of Mark L. Nichter." [Doc. 120-12 at 2-3; Doc. 115 at 2; Doc. 127-1 at 5.]
According to the Trans-Continental Defendants, then eighty-one year old Bern kept envelopes for both Trans-Continental and The Law Offices of Mark L. Nichter at his personal work station. And despite company procedures to prevent errors associated with mailings, Bern mistakenly included the Herzlinger Letter in a Nichter envelope, and Bern's supervisors failed to catch it before mailing. [Doc. 127-1 at 3-5.] This error, the Trans-Continental Defendants continue, "was an isolated occurrence." [Doc. 128 at 22.] Likewise, the Nichter Defendants say Bern's mishandling was an unfortunate, one-time mistake, and that no other debtors have come forward toallege a similar juxtaposition. [Doc. 115 at 17.] Responding, Plaintiff says this was no mistake: to coerce debtors to pay up, the Defendants' employees falsely represent to debtors—Plaintiff herself just one of many—that the Nichter Defendants' law office is already involved in the collection. [Doc. 135 at 4.]
Bern, like most of the Defendants' employees, does collection work for both the Trans-Continental and Nichter Defendants. For example, the "Trans-Continental Credit & Collection Corp. Operating Manual" instructs employees on how to collect on behalf of The Law Offices of Mark Nichter:
[Doc. 80-14 at 10, 23.] It continues,
At the time Bern mailed the Herzlinger Letter on October 23, 2008, creditor Greenwich Hospital had not yet authorized Trans-Continental to sue on its behalf to collect the Herzlinger debt. [Doc. 135 at 13; Doc. 123-7 at 2.] Four months later, Trans-Continental informed Greenwich Hospital that its collection efforts had been unsuccessful and requested authorization to sue, which the Hospital granted on February 18, 2009. [Doc. 120-22 at 2.] Defendant Stuart Bloom, Trans-Continental's President, says Herzlinger's debt was appropriate for litigation because "the balance was substantial and Ms. Herzlinger was regularly employed as a Virginia police officer . . . ." [Doc. 123-8 at 4.] After receiving authorization to sue, Trans-Continental referred the matter to a local Virginia attorney who ultimately commenced suit in Virginia state court. [Doc. 123-8 at 4.]
Against this backdrop, Plaintiff brings five counts against the Defendants, all predicated on her assertion that the Nichter Defendants and the Trans-Continental Defendants (including Stuart Bloom, personally) operated an illicit "joint masquerade" and are jointly and severally liable. To that end, Plaintiff contends that the Defendants violated the FDCPA in five ways: (1) § 1692e(5) by threatening legal action not intended to be taken; (2) § 1692e(10) by transmitting false and misleading information in connection with an attempt to collect a debt; (3) § 1692e(3) by deceptively implying that attorney had reviewed the debt account; (4) § 1692e(14) by using a name other than the true name of the debt collector's business; and (5) § 1692f(8) by unfairly using language, other than the debt collector's address, on an envelope when communicating with a debtor.
Plaintiff moves for summary judgment on Counts I and II; the Defendants move for summary judgment on all counts.
Summary judgment is appropriate when "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
A defendant moving for summary judgment has the initial burden of showing the absence of a genuine factual issue with respect to one or more essential elements of the plaintiff's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving defendant meets his burden by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which [he] believes demonstrate the absence of a genuine issue of material fact." Id. at 323 (quoting Fed. R. Civ. P. 56(c)). However, the moving defendant is under no "express or implied" duty to "support [his] motion with affidavits or other similar materials negating the opponent's claim." Id.
Once the moving defendant satisfies his burden, the burden shifts to the nonmoving plaintiff to set forth specific facts showing a triable issue. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving plaintiff may not defeat the summary judgment motion merely by showing some existence of doubt as to the material facts. See id. at 586. Nor can the nonmoving plaintiff rely upon the mere allegations or denials of her pleadings. Fed. R. Civ. P. 56(e).
In deciding a motion for summary judgment, the Court views the factual evidence and draws all reasonable inferences in favor of the nonmoving plaintiff. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970). To be sure, the Court need not conclusively resolve an...
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