Mandelos v. Forster & Garbus, LLP, 18-CV-3821(SJF)(GRB)

• Decision Date: 10 July 2019
• Docket Number: 18-CV-3821(SJF)(GRB)
• Parties: ELISA J. MANDELOS, individually and on behalf of all others similarly situated, Plaintiff, v. FORSTER & GARBUS, LLP and THE FORSTER GROUP, INC. Defendants.
• Court: U.S. District Court — Eastern District of New York

ELISA J. MANDELOS, individuallyand on behalf of all others similarly situated, Plaintiff, v. FORSTER & GARBUS, LLP and THE FORSTER GROUP, INC. Defendants.

18-CV-3821(SJF)(GRB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

July 10, 2019

ORDER

FEUERSTEIN, District Judge:

I. Introduction

On July 2, 2018, plaintiff Elisa J. Mandelos ("plaintiff") commenced this putative class action against defendants Forster & Garbus, LLP ("F&G") and The Forster Group, Inc. ("TFG") (collectively, "defendants") alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. Pending before the Court is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted.

II. Background

A. Factual Allegations¹

Plaintiff originally incurred the subject debt (the "Debt") to Citibank (South Dakota) N.A. ("Citibank"), (Defendants' Statement of Material Facts pursuant to Local Civil Rule 56.1(a) ["Def. 56.1"], ¶ 1; Plaintiff's Counterstatement pursuant to Local Civil Rule 56.1(b) ["Plf. 56.1"], ¶ 1); and fell behind on the payments owed at some unidentified time thereafter. (Complaint ["Compl."], ¶ 13; Answer ["Ans."], ¶ 12). The Debt was subsequently assigned or otherwise transferred to TFG for collection. (Compl., ¶ 14; Ans., ¶ 13).

On December 28, 2011, a judgment was entered against plaintiff in the District Court of the State of New York, County of Nassau, in a consumer credit action, The Forster Group, Inc. APO Citibank v. Mandelos, No. CV-036370-11/NA.² Joel D. Leiderman, Esq. ("Leiderman"), a senior associate attorney with F&G, avers, based upon his personal review of F&G's account collection notes concerning plaintiff maintained in the ordinary course of business, that the judgment: (i) was entered against plaintiff in the amount of four thousand seven hundred eighty-eight dollars and fifty-eight cents ($4,788.58); (ii) has been accruing interest at the rate of nine percent (9%) per annum; and (iii) was in the total amount of seven thousand seven hundredsixty-three dollars and thirty-eight cents ($7,763.38) as of October 8, 2018.³ (Affidavit of Joel D. Leiderman, Esq. ["Leiderman Aff."], ¶1, 3-7). Forster makes similar factual averments. (Forster Aff., ¶¶ 8-11).

In an effort to collect the Debt, defendants contacted plaintiff by letter dated July 6, 2017 (the "Letter"). (Compl., ¶ 15; Ans., ¶ 14). The Letter, inter alia, sets forth a "Balance Due as of July 6, 2017," in the amount of seven thousand two hundred twenty-one dollars and seventy-six cents ($7,221.76); "provides a settlement offer;" and states, "If the above settlement offer is not accepted by you and if interest or other charges or fees accrue on this account, after the date of this letter, the amount due on the day you pay may be greater." (Compl., ¶¶ 17-19 and Ex. 1; Ans., ¶¶ 16-18).

The complaint alleges, inter alia, (i) that defendants "had no authority to add interest to the debt[,] . . . to add 'other charges' to the debt[,] . . . [or] to add 'fees' to the debt[,]" (Compl., ¶¶ 20-22); (ii) that the Letter "would lead the least sophisticated consumer to believe that Defendants had authority to add interest to the debt[,] . . . to add 'other charges' to the debt[,] . . . [and] to add "fees" to the debt[,]" (id., ¶¶ 23-26); and (iii) that defendants, thus, violated 15 U.S.C. § 1692e.⁴ (Id., ¶ 26).

Leiderman and Forster aver that "[i]n conjunction with the directives of TFG," F&G (i) "is authorized to accept a sum less than the amount set forth in the . . . [Letter]," (Leiderman Aff., ¶ 8; Forster Aff., ¶ 12); and (ii) "was authorized to collect post-judgment interest, costs and fees if [plaintiff] did not agree to enter into a lesser amount settlement." (Leiderman Aff., ¶ 9; Forster Aff., ¶ 13).

B. Procedural History

On July 2, 2018, plaintiff commenced this putative class action against defendants alleging violations of the FDCPA. Issue was joined by the service of an answer on behalf of defendants on August 13, 2018.

Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

III. Discussion

A. Standard of Review

"Summary judgment is proper 'if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" ING Bank N.V. v. M/V TEMARA, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018) (quoting Fed. R. Civ. P.56(a)); accord Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018). In ruling on a summary judgment motion, the district court must first "determine whether there is a genuine dispute as to a material fact, raising an issue for trial." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotations and citations omitted); see also Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658, 2677, 174 L. Ed. 2d 490 (2009) ("On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." (emphasis added) (internal quotations and citation omitted). On a motion for summary judgment, "[a] fact is material if it 'might affect the outcome of the suit under the governing law[.]'" Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 25 (2d Cir. 2015) (quoting Anderson, 477 U.S. at 248, 106 S. Ct. 2505).

In reviewing the record to determine whether there is a genuine issue for trial, the court must "construe the evidence in the light most favorable to the non-moving party," Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017) (quotations, alterations and citation omitted), and "resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 45 (2d Cir. 2019) (quotations and citation omitted); see also Hancock v. County of Rensselaer, 882 F.3d 58, 64 (2d Cir. 2018) ("In determining whether there is a genuine dispute as to a material fact, we must resolve all ambiguities and draw all inferences against the moving party.") "A genuine issue of material fact exists if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Pollard v. New York Methodist Hosp., 861 F.3d 374, 378 (2d Cir. 2017) (quoting Anderson, 477 U.S. at 248, 106 S. Ct. 2505); accord Nick's Garage, Inc. v. Progressive CasualtyIns. Co., 875 F.3d 107, 113-14 (2d Cir. 2017). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Ricci, 557 U.S. at 586, 129 S. Ct. at 2677 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)); accord Baez v. JetBlue Airways Corp., 793 F.3d 269, 274 (2d Cir. 2015).

"The moving party bears the initial burden of showing that there is no genuine dispute as to a material fact." CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (quotations, brackets and citation omitted); accord Jaffer, 887 F.3d at 114. "[W]hen the moving party has carried its burden[,] . . . its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . [,]" Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (quoting Matsushita Elec., 475 U.S. at 586-87, 106 S. Ct. 1348), and must offer "some hard evidence showing that its version of the events is not wholly fanciful[.]" Miner v. Clinton County, N.Y., 541 F.3d 464, 471 (2d Cir. 2008) (quotations and citation omitted). The nonmoving party can only defeat summary judgment "by adduc[ing] evidence on which the jury could reasonably find for that party." Lyons v. Lancer Ins. Co., 681 F.3d 50, 56 (2d Cir. 2012) (quotations, brackets and citation omitted). "'The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient' to defeat a summary judgment motion[,]" Fabrikant v. French, 691 F.3d 193, 205 (2d Cir. 2012) (quoting Anderson, 477 U.S. at 252, 106 S. Ct. 2505); and "[a] court cannot credit a plaintiff's merely speculative or conclusory assertions." DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012); see also Federal Trade Comm'n v. Moses, 913 F.3d 297, 305 (2d Cir. 2019) ("[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion forsummary judgment."); Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018) ("While we are required to resolve all ambiguities and draw all permissible factual inferences in favor of the non-moving party, . . . conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment[.]" (quotations, alterations and citations omitted)). Since "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party[,] . . . [i]f the evidence is merely colorable, . . . or is not significantly probative, . . . summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S. Ct. 2505 (quotations and citations omitted).

B. FDCPA Claims

Section 1692e of the FDCPA provides that "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt."15 U.S.C. § 1692e. Since "the FDCPA is primarily a consumer protection statute, . . . [courts] must construe its terms in liberal fashion to achieve the underlying Congressional purpose[,]" Avila v. Riexinger & Assocs., LLC, 817 F.3d 72, 75 (2d Cir. 2016) (quotations, alterations and citations omitted), which "is to 'eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not...