Weissman v. Collecto, Inc.

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: PAMELA K. CHEN, United States District Judge
• Decision Date: 17 January 2019
• Docket Number: 17-CV-4402 (PKC) (LB)
• Citation: Weissman v. Collecto, Inc., 17-CV-4402 (PKC) (LB) (E.D. N.Y. Jan 17, 2019)
• Parties: NOSSON WEISSMAN, on behalf of plaintiff and a class, Plaintiff, v. COLLECTO, INC. d/b/a EOS CCA, Defendant.

NOSSON WEISSMAN, on behalf of plaintiff and a class, Plaintiff, v. COLLECTO, INC. d/b/a EOS CCA, Defendant.

17-CV-4402 (PKC) (LB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

January 17, 2019

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Nosson Weissman ("Plaintiff") commenced this action, on behalf of himself and a class, alleging unlawful debt collection by Collecto, Inc. d/b/a EOS CCA ("Defendant") in violation of the Fair Debt Collection Practices Act ("FDCPA"). (Compl., Dkt. 1, at ECF¹ 1 & ¶ 1.) Defendant filed a motion for summary judgment (Def.'s Mot. for Summ. J., Dkt. 36) and Plaintiff filed a motion for class certification (Pl.'s Mot. for Class Certification, Dkt. 41), which were briefed simultaneously. For the following reasons, the Court denies in part and grants in part Defendant's motion for summary judgment and grants Plaintiff's motion for class certification. Additionally, the Court sua sponte orders Defendant to show cause, within fourteen days (14) days from the issuance of this memorandum and order, why the Court should not grant summary judgment to Plaintiff and the certified class on Plaintiff's 15 U.S.C. § 1692g claim.

BACKGROUND

I. Relevant Facts

On or about May 31, 2017, T-Mobile USA placed with Defendant a debt account in Plaintiff's name bearing an account number with the last four digits 1202 for collection. (Def.'s 56.1 ¶ 1.)² A few days later, Defendant mailed—and Plaintiff thereafter received—a letter from Defendant dated June 2, 2017 regarding the debt Plaintiff owed to T-Mobile USA (the "Debt Collection Notice"). (Id. ¶ 2.) The single-page letter, titled "NOTICE OF COLLECTION PLACEMENT," contained the following text on the front side, which the Court will refer to as the "Letter Language":

T-MOBILE USA has placed your account with us for collection for total amount shown above. We urge you to remit payment to our office, unless you dispute this debt.

T-MOBILE USA values you as a subscriber and hopes to get you back to enjoying the many exclusive benefits of their service. If you wish to restore your service, any applicable termination fees on your account will be removed.

If mailing your payment, please detach the coupon below and mail it with your payment to the address³ on the coupon. Please send all other correspondence to T-MOBILE USA, PO BOX 742596, CINCINNATI, OH 45274-2596.

Please call EOS CCA

1-855-866-9201

This communication is from a debt collector. This is an attempt to collect a debt and any information obtained will be used for this purpose. . . .

**Please see reverse for important notices and account details**

(Compl. Ex. A, Dkt. 1-1, at 2.) T-Mobile USA required that the Letter Language be included in correspondence relating to debt collection (Def.'s 56.1 ¶ 1) and that all disputes of which Defendant was notified via telephone were either transferred to T-Mobile USA for handling or the caller was given a T-Mobile USA number to call to address the dispute (id. ¶ 9).

The reverse side of the Debt Collection Notice contained the below text, which the Court will refer to as the "Validation and Disclosure Language":

FEDERAL LAW

Unless you dispute the validity of this debt, or any portion thereof, within thirty days after receipt of this notice, we shall assume the debt to be valid. If you notify us in writing of your dispute within this thirty-day period, we will obtain verification of the debt, or a copy of a judgment against you, and a copy of such verification or judgment will be mailed to you. Upon your written request within the thirty-day period, we will provide you with the name and address of the original creditor, if different from the current creditor.

Debt collectors, in accordance with the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., are prohibited from engaging in abusive, deceptive, and unfair debt collection efforts, including but not limited to: a) the use or threat of violence; b) the use of obscene or profane language; and c) repeated phone calls made with the intent to annoy, abuse, or harass. If a creditor or debt collector receives a money judgment against you in court, state and federal laws may prevent the following types of income from being taken to pay the debt: 1. Supplemental security income, (SSI); 2. Social security; 3. Public assistance (welfare); 4. Spousal support, maintenance (alimony) or child support; 5. Unemployment benefits; 6. Disability benefits; 7. Workers' compensation benefits; 8. Public or private pensions; 9. Veterans' benefits; 10. Federal student loans, federal student grants, and federal work study funds; and 11. Ninety percent of your wages or salary earned in the last sixty days. . . .

(Compl. Ex. A, at 3.)⁴

II. Procedural History

Plaintiff initiated this action on July 25, 2017 on behalf of himself and a class. (Compl., at 1 & ¶ 1.) In the complaint, Plaintiff alleges that the Debt Collection Notice violates 15 U.S.C. §§ 1692g, 1692e, and 1692e(10) of the FDCPA because it directed Plaintiff to send all correspondence to T-Mobile USA, the creditor, rather than Defendant, the debt collector. (Id. ¶¶ 21-23.) On July 25, 2017, Plaintiff also filed a motion to certify a class (Dkt. 3) and an accompanying memorandum of law in support (Dkt. 4). Additionally, Plaintiff sought a continuance regarding his motion for class certification, noting that Defendant had not yet been served and explaining that Plaintiff filed his certification motion to avoid having the class claims mooted. (Dkt. 5, at 1.) See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016) (noting the unsettled question of whether class claims are mooted where "a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount").

On August 16, 2017, Defendant filed an answer to the Complaint, substantially denying Plaintiff's allegations (Answer, Dkt. 10, at 1-9) and raising fourteen affirmative defenses⁵ (id. at 9-14). The parties entered the discovery process, after which the Court granted Defendant leave to file a motion for summary judgment and Plaintiff leave to file a renewed class certification motion. (See May 11, 2018 ECF Entry.) Both motions and accompanying briefing are currently before the Court.

DISCUSSION

I. Standard of Review

Summary judgment is appropriate where the submissions of the parties, taken together, "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (summary judgment inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

The initial burden of "establishing the absence of any genuine issue of material fact" rests with the moving party. Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010). Once this burden is met, however, the burden shifts to the non-moving party to put forward some evidence establishing the existence of a question of fact that must be resolved at trial. Spinelli v. City of N.Y., 579 F.3d 160, 166-67 (2d Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A mere "scintilla of evidence" in support of the non-moving party is insufficient; "there must be evidence on which the jury could reasonably find for the" non-movant. Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (quotation omitted). In other words, "[t]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quotation omitted).

When assessing whether a genuine issue of fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). The Court also construes any disputed facts in the light most favorable to the non-moving party. See Adickes v. S.H. Kress &Co., 398 U.S. 144, 157-59 (1970). However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48.

When one party has moved for summary judgment, "a court may grant summary judgment in favor of the non-moving party provided that party has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried." Radut v. State St. Bank & Trust Co., No. 03-CV-7663, 2004 WL 2480467, at *2 (S.D.N.Y. Nov. 4, 2004) (quotation omitted). As the Second Circuit has advised, a district court can decline to give notice before sua sponte granting summary judgment so long as the moving party was not "procedurally prejudiced," and has explained that "[a] party is procedurally prejudiced if it is surprised by the district court's action and that surprise results in the party's failure to present evidence in support of its position." Bridgeway Corp. v. Citibank, 201 F.3d 134, 139 (2d Cir. 2000). "If, however, the party either cannot claim to have been surprised by the district court's action or if, notwithstanding its surprise, the party had no additional evidence to bring, it cannot plausibly argue that it was prejudiced by the lack of notice." Id. at 140.

II. Defendant's Motion for Summary Judgment

The FDCPA, which imposes civil liability on debt collectors for certain prohibited debt collection practices, was enacted "to eliminate abusive debt collection practices, to ensure that debt collectors who abstain from such practices are not competitively disadvantaged, and to...