McCorriston v. L.W.T. Inc.

• Decision Date: 22 February 2008
• Docket Number: No. 8:07-cv-160-T-27EAJ.,8:07-cv-160-T-27EAJ.
• Citation: 536 F.Supp.2d 1268
• Parties: Gwen McCORRISTON, Plaintiff, v. L.W.T., INC., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

536 F.Supp.2d 1268

Gwen McCORRISTON, Plaintiff, v. L.W.T., INC., et al., Defendants.

No. 8:07-cv-160-T-27EAJ.

United States District Court, M.D. Florida, Tampa Division.

February 22, 2008.

COPYRIGHT MATERIAL OMITTED

Frederick Wiley Vollrath, Vollrath-Condon, PA, Timothy Condon, Law Office of Timothy Condon, Tampa, FL, for Plaintiff.

Ricardo A. Reyes, Tobin & Reyes, PA, Boca Raton, FL, for Defendants.

ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT is Defendants' Motion to Dismiss Second Amended Complaint, or, Alternatively, Motion for Summary Judgment (Dkt.46), to which Plaintiff has responded in opposition (Dkt.49).¹ Plaintiff asserts claims against Defendants for unlawful debt collection practices under the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692, et seq., (Count I), and the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. §§ 559.55 et seq., (Count II), based on Defendants' efforts to collect on a time-barred debt. Upon consideration, Defendants' motion is GRANTED IN PART and DENIED PART.

Background

On November 1, 1996, Plaintiff opened a Chase Manhattan Bank Visa credit card account ("the account"). (Dkt.42, ¶ 9). The account agreement contained a Delaware choice of law clause. (Law Firm Aff. ¶ 7). When Plaintiff failed to make one or more payments, the account was closed by the credit card issuer on or about November 22, 2002. (Dkt.42, ¶ 9). The account was assigned to Defendant Inc. ("LWT"). (LWT, Aff. ¶ 10). On. January 12, 2006, Defendant Shafritz, on behalf of Defendant Shafritz & Braten, P.A. ("the Law Firm"), sent a letter to Plaintiff with the statutorily-required notice that the account had been assigned to LWT. (Dkt.42, ¶ 11, Exh. A), Shafritz stated that the Law Firm had been retained to collect the sum of $ 11, 376.24 and offered to settle the account for $9,100.99. (Dkt.42, Exh. A). Shafritz further stated: "To accept this offer remit a check made payable to `Shafritz and Braten, P.A.' by January 30, 2006. Time is of the essence. Prompt payment is necessary to forestall further review of your file by this office." (Id.) The letter closed with statutorily-required language alerting Plaintiff to her rights to dispute and verify the alleged debt. (Id.) Plaintiff does not contend that she responded to, the letter.

On April 5, 2006, LWT, acting through the Law Firm, filed suit against Plaintiff in the County Court in and for, Hillsborough County to collect the amount allegedly due. (Dkt.42, ¶ 12). That state court action was dismissed with prejudice on October 13, 2006 as time-barred under Delaware's three year statute of limitations for, actions between debtors and creditors. (Dkt.42, Exh. B). Defendant Braten, another attorney at the Law Firm, avers that his first "direct involvement" with the state court action came after the dismissal, and that he previously researched the statute of limitations issues. (Dkt. 40-2; Braten Aff. ¶ 4; Dkt. 44-2: Law Firm Aff. 205-7). On November 19, 2007, the Circuit Court for Hillsborough County, Appellate Division, affirmed the dismissal of the state court action. (Dkt.49-2).

On January 25, 2007, Plaintiff filed this federal action, claiming: (1) Defendants violated the FDCPA by filing a time-barred lawsuit and because LWT was not registered as a "consumer collection agency," as required by Florida law (Count I); and (2) Defendants violated the FCCPA by sending the January 12, 2006 letter even though suit on the debt was time-barred (Count II). In the instant motion to dismiss, Defendants argue that Plaintiff's FDCPA claim is subject to dismissal pursuant to the FDCPA's one year statute of limitations. Alternatively, Defendants argue that summary judgment should be granted on Plaintiffs FDCPA claim because Defendants did not seek to collect on a "debt" within the meaning of the FDCPA, the state court action was actually timely under both Florida and Delaware law, Defendants are protected by the FDCPA's "bona fide error" affirmative defense, and LWT, as holder of the debt, is not required to register as a consumer collection agency. Defendants argue that summary judgment should be granted on Plaintiffs FCCPA claim because Defendants did not knowingly file a time-barred lawsuit, as required for a FCCPA claim, and because Defendants are protected by Florida's litigation privilege, as the January 12, 2006 letter was a required pre-suit communication. Upon consideration, Defendants' motion to dismiss is, denied, and Defendants' motion for summary judgment is granted in part and denied in part.

I. Motion to Dismiss

A. Standard

Rule 8(a) (2) of the Federal Rules of Civil Procedure requires that a complaint provide "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the .... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Although a complaint need not include detailed factual allegations, it must contain sufficient factual allegations, which, when taken as true, "raise a right to relief above the speculative level." Id. at 1964-65. A complaint may be dismissed on the basis of a statute of limitations "only if it appears beyond a doubt that Plaintiffs can prove no set of facts that toll the statute." Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 n. 13 (11th Cir.2005) (internal quotations omitted).

B. Discussion

An action to enforce liability under the FDCPA must be brought "within one year from the date on which the violation occurs." 15 U.S.C. § 1692k(d). Defendants first argue that to the extent Plaintiffs FDCPA claim is premised on the mailing of Shafritz' January 12, 2006 letter, Plaintiffs claim is barred by the one-year statute of limitations, which Plaintiff concedes. (Dkt. 49 at 4); see also Maloy v. Phillips, 64 F.3d 607, 608 (11th Cir. 1995) (FDCPA claim accrues the day after a collection letter is mailed). Plaintiff instead maintains that Count I is premised on the filing of the state court action on April 5, 2006 and LWT's failure to register pursuant to Fla. Stat. § 559.553, both of which were within the statute of limitations. Defendants contend that the Ming of the state court action was part of a "continuing violation," which originated with the first communication on January 12, 2006. Thus, Defendants claim that because the January 12, 2006 letter was outside the statute of limitations, any suit on one of Defendants' related acts is also time-barred.

The cases cited by Defendant in support of their contention are distinguishable, as even the latest alleged violations in those cases occurred outside the limitations period. For instance, in Sierra v. Foster & Garbus, the last alleged illegal action was in June 1997 and the lawsuit was filed November 13, 1998, well outside the statute of limitations. Sierra v. Foster & Garbus, 48 F.Supp.2d 393, 395 (S.D.N.Y.1999); see also Wilhelm v. Credico, Inc., 455 F.Supp.2d 1006; 1007 (D.N.D.2006) (challenged communication was sent on December 10, 2003 and defendant was not added as party until October 3, 2005); Fraenkel v. Messerli & Kramer, P.A., No. 04-1072; 2004 WL 1765309, at *3 (D.Minn. July 29, 2004) (letter that formed basis for claim was sent on December 3, 2002 and lawsuit filed February 29, 2004); Kirscher v. Messerli & Kramer, P.A., No. 05-1901, 2006 WL 145162, at *5 (D.Minn. Jan, 18, 2006) (where alleged violation was premised on request for attorney's fees, claim accrued when debt collector first demanded fees, not when it filed affidavits in support); Calka v. Kucker, Kraus & Bruh, LLP, No. 98-cv-0990, 1998 WL 437151, at *3 (S.D.N.Y. Aug.3, 1998) (last violation was filing of state lawsuit on July 16, 1996 and federal lawsuit was filed on February 11, 1998).

In this case, the filing of the state court action on April 5, 2006 was well within the one year limitations period. That Defendants sent a dunning letter outside the limitations period does not render Plaintiffs FDCPA claim time-barred, where, as here, Plaintiff has alleged a discrete violation within the limitations period. See Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360 (allowing claim based on dunning letters within statute of limitations period, although some were outside); Pittman v. J.J. Mac Intyre Co. of Nev., Inc., 969 F.Supp. 609, 611 (D.Nev.1997) (same). Based on the foregoing, Defendants' motion to dismiss Count I as time-barred is denied.

II. Motion for Summary Judgment

A. Standard

Summary judgment is proper if following discovery, the pleadings, depositions answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56. "An issue of fact is `material' if, under the applicable substantive, law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir.2004). "An issue of fact is `genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Id. at 1260. All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142, (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004).

Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine, issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate...