Savino v. Computer Credit, Inc.
| Decision Date | 10 January 1998 |
| Docket Number | No. CV 95-4446(ADS).,CV 95-4446(ADS). |
| Citation | 990 F.Supp. 159 |
| Parties | Frank SAVINO, on behalf of himself and all others similarly situated, Plaintiff, v. COMPUTER CREDIT, INC., Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Law Offices of Scott N. Gelfand, New York, NY, for Plaintiff.
Robert L. Dougherty, Garden City, NY, for Defendant.
This action arises from the claims of the plaintiff, Frank Savino ("Savino" or the "plaintiff"), that the defendant, Computer Credit, Inc. ("CCI" or the "defendant"), acted in violation of the Fair Debt Collection Practices Act ("FDCPA" or the "Act"), 15 U.S.C. § 1692, et seq., in its capacity as a collection agency, by mailing letters which contain language contrary to the statute's requirements. Presently before the Court are the following motions: (1) the defendant's motion pursuant to Fed.R.Civ.P. 11 requesting the imposition of sanctions and attorney's fees against the plaintiff and his attorney; and (2) the plaintiff's motion pursuant to 15 U.S.C. §§ 1692k(a)(2)(A) and 1692k(a)(3) for the award of statutory damages "in the Court's discretion, up to a maximum amount of $1,000.00," attorney's fees in the amount of $38,948.75, and related costs in the amount of $316.74.
The plaintiff is a resident of Hauppauge, New York. The defendant is a debt collection agency with its principal place of business in Winston-Salem, North Carolina. The chronology of the plaintiff's complaint, which this Court detailed in its decision of June 9, 1997, and aptly characterized as "bizarre," warrants repetition here. See Savino v. Computer Credit, Inc., 173 F.R.D. 346, 354 (1997).
A. The Complaints and the Plaintiff's Deposition Testimony
According to the original complaint, dated October 22, 1995, the plaintiff received a letter from the defendant dated August 28, 1995, the purpose of which was to collect an alleged debt of $153.00 owed to North Shore Hospital. In this pleading Savino alleged that this August 28, 1995 letter was the "first and only letter" that he received with respect to the debt. Compl. ¶ 8 (emphasis in original). The complaint continued by claiming that this letter failed to advise the plaintiff of "his right to validate and dispute the alleged debt" within 30 days and that CCI applied "false, deceptive and misleading means in connection with the collection" of the alleged debt, all in violation of the FDCPA. Compl. ¶¶ 9, 10. In addition, Savino asserted that he is acting on behalf of a class of similarly situated consumers whose rights have been violated.
By notice of motion dated August 12, 1996, the plaintiff moved for leave to file an amended complaint. According to the moving papers, after this action was commenced, plaintiff's counsel was advised that his client had been sent a prior letter by CCI dated August 14, 1995 with regard to the aforementioned debt. Based on this representation, and the Second Circuit decision in Russell v. Equifax A.R.S., 74 F.3d 30 (2d Cir.1996), a case which outlined the parameters of FDCPA violations, the plaintiff decided that it would be appropriate to file an amended complaint. Initially Savino attempted to obtain the defendant's consent to file the amended pleading. CCI refused. Accordingly, the plaintiff filed the appropriate motion pursuant to Fed.R.Civ.P. 15(a).
The only substantive difference between the original and proposed amended complaint was that in addition to asserting that the August 28, 1995 letter was the first correspondence received, Savino alleged that, "[u]pon information and belief, CCI mailed an earlier letter to Savino, dated August 14, 1995, which was the first communication by CCI to Savino, or at least, CCI's first letter to Savino." Am. Compl. ¶ 10. The proposed amended complaint continued by claiming that while this letter did contain the required 30 day debt validation notice, it nevertheless violated the FDCPA "by containing language that overshadows, contradicts or is otherwise inconsistent with Savino's right to a 30 day statutory period in which to validate and [sic] dispute the alleged debt ...." Am. Compl. ¶ 11.
By order dated September 18, 1996, this Court referred the motion for leave to file an amended complaint to United States Magistrate Judge Arlene R. Lindsay to render a decision. By memorandum order dated November 7, 1996, Judge Lindsay granted the plaintiff's motion. The defendant did not file any objections to this order and the proposed amended complaint was deemed filed. On November 13, 1996, at a conference before Judge Lindsay, the plaintiff discontinued his claim based on the August 28, 1995 letter.
At the plaintiff's deposition on February 20, 1997, however, Savino contradicted his prior representations and claimed that he did receive the August 14, 1995 letter:
Mr. Dougherty [Defense Counsel]:
Turning to the subject of the lawsuit that you filed against Computer Credit, Inc., I am going to show you a letter dated August 14, 1995 —
* * *
Have you reviewed it?
Plaintiff: Yes.
Q Have you seen this document before or a copy of it?
A I believe, yes.
Q When was the first time you saw it?
A Approximately — what I can remember — around, about August 25th, approximately.
Q August twenty-fifth?
A Approximately.
Q Of 1995.
MS. PAOLUCCI [Plaintiff's Counsel]: I would like to note for the record that my client is trying to come up with a date.
Q I don't want any assumptions. I want your recollection?
A I can't give you a definitive.
Q Did you receive a copy of this letter through the mail, at your home at 151 Woodbury Road, Hauppauge?
A I believe I did.
Q Approximately when did you receive this letter?
MS. PAOLUCCI: Objection. Asked and answered.
Q Is your answer, approximately August 25, 1995?
A I don't know.
MS. KRAVETZ [Plaintiff's Counsel]: Objection. Leading the witness. He's already stated that he does not know.
Q What, if anything, did you do upon receipt of this August 14, 1995 letter from CCI addressed to you?
A I believe I read it.
* * *
Q Is it fair to say that in your prior testimony that you believe that you received an August 14, 1995 letter from CCI addressed to you?
A Yes, I believe, yes.
* * *
Q Any statement that you did not receive the August 14, 1995 letter from CCI would be false according, to your recollection, your best recollection?
Deposition of Frank Savino, Feb. 20, 1997, Dougherty Aff. Exh E ("Savino Dep.") at 10-12, 30-31.
The following day, the plaintiff moved for leave to file a second amended complaint deleting the initial denial that he never received the August 14, 1995 letter, and alleged, instead, that he Sec. Am. Compl. ¶ 7 (emphasis in original). The second amended complaint does not refer to the August 28, 1995 letter, instead alleging that the August 14, 1995 letter violated his rights pursuant to the FDCPA.
By order dated February 21, 1997, Judge Lindsay granted the plaintiff leave to file a second amended complaint, in which, contrary to the prior pleadings, the plaintiff alleges:
7. Plaintiff Savino received a letter from the Defendant dated August 14, 1995 for the purpose of collecting an alleged debt of $153.00 incurred by Savino with North Shore Hospital. This was the first letter Plaintiff Savino received from the Defendant with respect to the alleged debt....
8. While Savino, initially, did not recall receiving the letter, he has accepted CCI's repeated representations that such a letter was, in fact, sent, and, as well, admits that he is presumed to have received the letter as a matter of law.
Sec. Am. Compl. ¶¶ 7-8 (emphasis in original).
In the Memorandum of Decision and Order dated April 11, 1997, affirming Judge Lindsay's order granting the plaintiff's motion to file a second amended complaint, this Court also denied the defendant's motion for summary judgment and granted the plaintiff's motion for partial summary judgment as to liability. Savino v. Computer Credit, Inc., 960 F.Supp. 599 (E.D.N.Y.1997). In reaching this conclusion, the Court determined that the August 14, 1995 letter sent to the plaintiff "insist[ing] on immediate payment" "overshadowed or contradicted" the mandatory 30 day debt validation notice which requires that consumers be advised that they have 30 days within which to contest the alleged obligation in violation of the FDCPA as a matter of law. Id. at 604 (citing Russell v. Equifax A.R.S., 74 F.3d 30 (2d Cir.1996). In the same decision, the Court denied CCI's application for sanctions, pursuant to Fed.R.Civ.P. 11, in its reply papers, in addition to the costs and attorney's fees sought in its notice of motion. Id. at 606. This Court rejected the request, in part, because CCI did not follow the provisions of Rule 11 by filing this motion as part of its summary judgment motion. Nevertheless, Id.
In a subsequent Memorandum of Decision and Order dated June 9, 1997, this Court, in the exercise of its discretion, denied the plaintiff's motion to certify the class action, determining that neither Savino nor his...
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