Littles v. Lieberman
| Decision Date | 07 September 1988 |
| Docket Number | Misc. No. 88-0083. |
| Parties | Clara LITTLES v. Arnold R. LIEBERMAN. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Mary Jeffery, Community Legal Services, Inc., Philadelphia, Pa., for plaintiff.
Anne Matchulet, Philadelphia, Pa., for defendant.
This is a non-core bankruptcy proceeding involving tort claims. I have before me RECOMMENDED OPINION CONTAINING PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW submitted to me by Order dated February 12, 1988 of United States Bankruptcy Judge David A. Scholl in Bankruptcy No. 87-00092S, Adversary No. 87-02394S, 90 B.R. 669. This matter was submitted to me pursuant to 28 U.S.C. § 157(c)(1) for entry of a final order. I have also before me DEFENDANT ARNOLD R. LIEBERMAN'S OBJECTIONS TO PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW filed March 4, 1988. For reasons stated in this opinion, I make the following findings of fact.
1. In September, 1986, Clara Littles received a letter dated September 17, 1986, on the letter head of the defendant, reading as follows:
2. At that time, Littles was delinquent in payments on a loan from Fleet Consumer Discount Company ("Fleet") secured by a mortgage on her residence.
3. On September 24, 1986, Fleet's branch manager, Ronald Price, sent an even stronger letter to Littles, stating, inter alia, that it was suggested that she remove all of her personal property from the premises because she would be evicted in an impending foreclosure sale of her home.
4. Littles is a 57-year old widow who attended school only through tenth grade in North Carolina and whose husband had recently expired in November, 1985. Littles testified that she believed that, as a result of these letters, Fleet was suing her and that she would lose her home. She testified that she "was very upset", cried, couldn't eat, couldn't sleep, lost eleven pounds in the next two or three months, and tried unsuccessfully to obtain financial assistance from her three children and a friend.
5. The defendant testified that he had been a practicing lawyer for twenty-seven (27) years, having represented Fleet for ten (10) years. He further stated that he had represented several other loan companies in collection activities, wherein he had utilized the letter quoted in paragraph one for the past ten or twelve years. Finally, he testified that the letter had been prepared after consultation with attorneys from the office of Littles' counsel.
6. The defendant also testified that the signature on the letter was not his, and that he had never authorized the dispatch of this letter to Littles.
7. The defendant and Ronald Price both testified that, on one occasion, due to his own secretarial problems, the defendant had come to the Fleet office with several copies of his letter to be sent to particular Fleet customers, not including Littles. Mr. Price opined that a Fleet employee, without authority to do so, had made an extra copy of the letter, signed the defendant's name to it, and sent it to Littles.
8. Mr. Price stated that Fleet had utilized the letter in certain cases in the past with the defendant's authority, but that Fleet had "overstepped its bounds" in sending the letter to Littles without the defendant's permission.
9. The signature on the September 17, 1986 letter to plaintiff Clara Littles was not the defendant's, and he never authorized the dispatch of the letter to Clara Littles. A Fleet employee made an extra copy of a letter intended for other purposes, signed the defendant's name to it and sent it to Clara Littles.
10. After the institution of this adversary proceeding, plaintiff Littles instituted a separate adversary proceeding, Clara Littles v. Fleet Consumer Discount Company, Adv. No. 87-0420S. This action made a claim based on the letter of September 17, 1986, in issue here. Although Mr. Lieberman's form was used for that letter, he was not joined nor were the actions consolidated.
11. On July 16, 1987, Littles and Fleet entered into a Settlement Agreement, thereafter approved by the United States Bankruptcy Court, in which Littles released Fleet from all claims set forth in Adv. No. 87-0420S. Mr. Lieberman was not a party to that settlement or release, nor was he given opportunity to be one.
This action is based on plaintiff's claim that she received a debt collection letter dated September 17, 1986, bearing defendant's name. She alleges this letter violated the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq. ("FDCPA") and Pennsylvania state Debt Collection Trade Practices Regulations, 37 PA CODE § 303.1 et seq., as enforced through the Pennsylvania state Unfair Trade Practices and Consumer Protection Law, Pa.Stat. Ann. tit. 73, § 201-1, et seq. (collectively "DCTPR"), because the letter threatened suit but was not in fact signed by a lawyer with the actual intention of bringing suit. Defendant is a lawyer and the collection letter which purported to have been sent out by him was actually mailed by employees of a loan company (Fleet) he represented. The bankruptcy judge recommended judgment in favor of defendant under both federal and state law. Defendant nevertheless objected to certain proposed findings of fact and conclusions of law. Plaintiff objected to one proposed conclusion of law. For the reasons given below, I am entering judgment in favor of defendant and against plaintiff on the federal claim, and am dismissing the state claim without prejudice.
Pursuant to 28 U.S.C. § 157(c)(1) (West Supp.1988) and Bankr. Rule 9033(d), 11 U.S.C.A. (West Supp.1988), I must review de novo those matters to which any party has timely and specifically objected. De novo review requires me to make an independent judgment of the issues. Matter of Campbell, 812 F.2d 1465, 1467 (4th Cir. 1987); Moody v. Amoco Oil Co., 734 F.2d 1200, 1210 (7th Cir.1984). In doing so, I have examined the entire record in this matter. Witness credibility is not sufficiently at issue to warrant receipt of further evidence.
Following is my disposition of the matters to which objection has been taken. I shall treat the objections one by one.
The bankruptcy judge's Proposed Finding of Fact No. 5 states:
Defendant objected to Proposed Finding of Fact No. 5 on the ground that it draws unwarranted inferences from the testimony. I disagree with defendant. The proposed finding is supported by the record and I will let it stand.
The bankruptcy judge's Proposed Finding of Fact No. 9 states:
Defendant objected to the term "some misgivings". After a review of the record, I substitute the following Finding of Fact No. 9:
9. The signature on the September 17, 1986 letter to plaintiff Clara Littles was not the defendant\'s, and he never authorized the dispatch of the letter to Clara Littles. A Fleet employee made an extra copy of a form provided for other purposes, signed the defendant\'s name to it and sent it to Clara Littles.
The bankruptcy judge's Proposed Findings of Fact Nos. 10 and 11 state:
Defendant objects to Proposed Findings of Fact Nos. 10 and 11 because they are based on the assumption that the action entitled Clara Littles v. Fleet Consumer Discount Co., Adversary No. 87-0420S, did not include a claim based on the September 17, 1986 letter. Defendant is correct. Paragraphs 15, 16 and 17 of that complaint do state a claim based on the September 17, 1986 letter. Based on that fact and my Finding of Fact No. 9, I adopt the following Findings of Fact Nos. 10 and 11:
The bankruptcy judge's Proposed Conclusion of Law No. 1 states:
Defendant objects to Proposed Conclusion of Law No. 1 on...
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