Olu Omodunbi v. Gordin & Berger, P.C.

• Docket Number: Civil Action 17-7553 (JKS) (JSA)
• Decision Date: 27 June 2024
• Parties: OLU OMODUNBI, Plaintiff, v. GORDIN & BERGER, P.C., EDWARD BERGER, AND DANIEL BERGER, Defendants.
• Court: U.S. District Court — District of New Jersey

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OLU OMODUNBI, Plaintiff,
v.
GORDIN & BERGER, P.C., EDWARD BERGER, AND DANIEL BERGER, Defendants.

Civil Action No. 17-7553 (JKS) (JSA)

United States District Court, D. New Jersey

June 27, 2024

NOT FOR PUBLICATION

JESSICA S. ALLEN, U.S.M.J.

OPINION

HON. JAMEL K. SEMPER United States District Judge

Before the Court are cross motions for summary judgment: Defendants Gordin & Berger, P.C., Edward Berger, and Daniel Berger's (collectively “Defendants”) motion for summary judgment (ECF 205) and Plaintiff Olu Omodunbi's motion for summary judgment (ECF 207). The Court reviewed the parties' submissions and decided the motion without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below, Defendants' motion for summary judgment is GRANTED in part and DENIED in part and Plaintiff's motion for summary judgment is GRANTED in part and DENIED in part.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY ^[1]

In the fall 2009 and spring 2010 semesters, Plaintiff pursued a master's degree in mathematical finance from Rutgers University (“Rutgers”). (ECF 172-5, DSMF ¶ 15; ECF 173-8,

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PSMF ¶¶ 1-2.) During the fall semester, Plaintiff was enrolled in four classes and incurred a bill for $16,130.70. (DSMF ¶ 16.) Through private financing, Plaintiff paid down his tuition bill to $1,130.70. (DSMF ¶¶ 18, 21.) For the spring semester, Plaintiff incurred a bill for $12,410.70. (DSMF ¶ 21.) For both semesters, Plaintiff owed Rutgers $13,541.50. (DSMF ¶ 21; PSMF ¶ 5.)

To collect the outstanding debt, Rutgers referred Plaintiff's matter to Defendant Gordin & Berger. (DSMF ¶ 49.) On September 27, 2016, Plaintiff received a letter (“September 27, 2016 Letter”) from Defendants regarding tuition owed to Rutgers. (DSMF ¶¶ 27-28; PSMF ¶¶ 6-7.) The total amount due as stated in the letter was $14,075.40. (DSMF ¶ 27; PSMF ¶ 6.) Plaintiff asserts that the September 27, 2016 Letter consisted of one single page. (PSMF ¶ 6.) Defendants assert that attached to the September 27, 2016 Letter was a second page entitled “Important Notice,” which indicated Plaintiff had the right to dispute the validity of the debt or any portion thereof, and that upon written request, verification of the debt would be sent to Plaintiff. (DSMF ¶ 29.) Plaintiff contests that the September 27, 2016 Letter did not include this second page, and instead asserts that the Letter failed to provide disclosures required by the FDCPA or notice that would have informed Plaintiff of his right to dispute the debt or seek validation of the debt. (PSMF ¶¶ 6, 8; Omodunbi Decl. ¶ 7.)

On October 10, 2016, Plaintiff sent Defendants a letter disputing the validity of the debt amount and requesting proof of the amount claimed. (DSMF ¶ 34; PSMF ¶ 9.) On October 25, 2016, Defendants responded to Plaintiff via letter. (DSMF ¶ 35; PSMF ¶ 10.) The October 25, 2016 Letter stated: “Now that we have validated the charges, you must begin making installment payments of $100.00 per month as soon as possible.” (See ECF 172-3, Affidavit of Edward L. Berger ¶ 25, Ex. 1D.) The parties dispute whether this statement was a demand for payment or a request. In a letter received by Defendants on November 30, 2016, Plaintiff responded by writing

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“[d]ue to my current conditions, I am only able to pay $25 per month. Can you please confirm this agreement so I can start making payments next month?” (See ECF 172-3, Affidavit of Edward L. Berger Ex. 1E.) That same day, Defendants called Plaintiff to discuss collection of the debt, but Plaintiff stated he could not speak at that time. (DSMF ¶ 37.) On December 8, 2016, Defendants called Plaintiff, but did not reach him. (Id. ¶ 39.) The parties spoke on the phone on either October 13 or 14, 2016, January 3, 2017, January 4, 2017, and January 6, 2017. (Id. ¶ 41; PSMF ¶ 12.)

On December 21, 2016, Gordin & Berger initiated suit against Mr. Omodunbi on behalf of Rutgers University in the Superior Court of New Jersey, Hudson County in the Special Civil Part of the Law Division, case caption Rutgers, The State University of New Jersey v. Olu Omodunbi, Docket Number HUD-DC-12959-16 (“State Court Action”). (DMSJ Br. at 1; PSMF ¶ 11.) On January 3, 2017, upon being served with the summons and complaint, Plaintiff called Defendants. (DSMF ¶ 51.) Defendants allege the parties engaged in negotiations regarding the outstanding debt. (Id. ¶¶ 53-55.) On January 4, 2017, Defendant Edward Berger called Plaintiff but was unable to reach him. (Id. ¶ 55.) Defendants assert that because Plaintiff's voicemail did not identify him, Defendant Edward Berger left a voicemail with his name and phone number and requested a call back from Plaintiff. (Id. ¶ 56.) That same day, Plaintiff returned the call, and the parties engaged in further negotiations. (Id. ¶¶ 57-61.) During this call, Defendant Edward Berger requested Plaintiff's email address. (Id. ¶ 57.) On January 6, 2017, Plaintiff called Defendants and made “a counteroffer to pay $300 per month until the outstanding balance of $14,075.40 was paid in full, with the first payment to be paid immediately, and subsequent payments would be due on the 26th of every month thereafter.” (DSMF ¶ 62.) Upon receipt of the first $300 payment, the lawsuit would be dismissed without prejudice. (Id. ¶ 65.) After two weeks, Defendants had not received payment; Defendant Edward Berger called Plaintiff but was unable to reach him. (Id. ¶ 66.) He

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allegedly left a message with only his name and number and requested Plaintiff call back. (Id.)

On January 20, 2017, Defendant Edward Berger emailed Plaintiff and stated: “As I have not received the initial $300.00 installment, I will be proceeding to enter judgment against you.” (See ECF 172-3, Affidavit of Edward L. Berger Ex. 1G.) Plaintiff retained an attorney, and Plaintiff filed an answer in the State Court Action on January 27, 2017. (DSMF ¶ 68; PSMF ¶ 15.)

On or about March 7, 2017, Defendants served upon Plaintiff a motion for leave to amend the complaint and transfer the case from the Special Civil Part to Law Division. (DSMF ¶ 72; PSMF ¶ 16.) On or about March 21, 2017, Defendants served Plaintiff with a second motion in the Special Civil Part for leave to amend the complaint. (DSMF ¶ 77; PSMF ¶ 17). On or about April 24, 2017, Defendants filed a motion to transfer the case from the Special Civil Part to the Law Division and served the motion upon Plaintiff. (DSMF ¶¶ 82-83; PSMF ¶ 18.) On or about August 28, 2017, Defendants served Plaintiff with a copy of a motion to strike. (PSMF ¶ 19.) The case was ultimately transferred to the Law Division. See Rutgers, The State University of New Jersey v. Olu Omodunbi, Docket No. HUD-L-1965-17. At the time Plaintiff received copies of the March 7, 2017, March 21, 2017, April 24, 2017, and August 28, 2017 papers, he was represented by Lawrence Hersh, Esq. (PSMF ¶ 20.)

The parties litigated the State Court Action. On September 26, 2018, the Honorable Mary K. Costello, J.S.C. granted Rutgers' motion for summary judgment against Olu Omodunbi and set forth the amount Mr. Omodunbi was to pay Rutgers:

Principal Balance	$13,541.40
Late Fee	$ 50.00
Interest/Penalty	$ 484.00
Credits	($ 50.79)
Contingency Fee	$ 4,207.34
Additional Costs	$ 1,204.60
GRAND TOTAL	$19,487.34

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(ECF 172-11, Ex. 5.) Although Defendants sought a contingency fee of 40%, Judge Costello reduced the fee to 30% of the principal balance. (Id.)

On October 24, 2018, Defendants served an information subpoena upon Plaintiff's counsel. (DSMF ¶ 119.) On December 20, 2018, Defendants filed a motion to enforce litigants rights. (Id. ¶ 120.) Judge Costello ultimately granted the motion. (ECF 172-24, Ex. 15.) Defendant Daniel Berger emailed Mr. Omodunbi on January 23, 2019 and stated the following:

You are being contacted directly pursuant to the permission from your attorney and court authorization. Attached hereto is the Information Subpoena and Questions that were served on you through your attorney on October 24, 2018. Also attached hereto is the Order granting the motion to enforce litigant's rights. Pursuant to court rules and the attached order, you have been compelled to furnish appropriate answers to the Information Subpoena.

As you have not responded within ten (10) days from the date of the order, we are now authorized by law to apply to the court for a warrant for your arrest. However, since it is unclear to us at this time whether or not your attorney, in fact, provided you with all of the above paperwork, as a courtesy, we will refrain from moving forward with our application for an arrest warrant if we are in receipt of your certified answers prior to the end of the month.

Please give this matter your prompt attention.

(ECF 172-24, Ex. 15.)

On January 29, 2019, Plaintiff sent Defendants an email stating that he wanted to “resolve the outstanding judgment.” (DSMF ¶ 126.) On January 30, 2019, Defendant Daniel Berger left Mr. Omodunbi a voicemail and said, “Yes, hi. This is, Dan Berger. I was just calling to just to reach Olu Omodunbi. If you can give me a call back, that would be great. My number is [omitted]. Thanks. Bye.” (PSMF ¶ 22; see DSMF ¶ 129.) On January 31, 2019 at 7:52 p.m. Mr. Omodunbi wrote an email to Dan Berger that stated, in relevant part, “I received your voicemail message. As I mentioned in my previous email, I would like to resolve the outstanding judgment. Please let me know what the bottom line, lump sum figure that it would take to resolve this matter. Also, please

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let me know what the total amount of the judgment is, with all fees, expenses and interest.” (See ECF 48-2.) On the same day, at 9:06 p.m. or 9:07 p.m., Defendant Dan Berger emailed a reply to Plaintiff.^[2] (Id.; DSMF ¶...