Annunziato v. Collecto, Inc.

296 F.R.D. 112, 2013 WL 6570782, 2013 U.S. Dist. LEXIS 177170
District Court, E.D. New York·Decided November 18, 2013·No. No. CV 12-3609 (ADS)(AKT)·Published·Cited by 2 cases

Opinion

MEMORANDUM AND ORDER

A. KATHLEEN TOMLINSON, United States Magistrate Judge:

I. Preliminary Statement

Plaintiff David Annunziato (“Plaintiff”) brings this class action, on behalf of himself and all others similarly situated, against Defendant Collecto, Inc. doing business as EOS CC (“Defendant” or “Collecto”), pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. See generally Am. Compl. [DE 37]. Plaintiff alleges that Defendant’s “pattern and practice of gouging consumers through the insidious addition of ‘collection fees and costs’, and by threatening ‘further steps’ attempting to collect debt beyond the statute of limitations is illegal and contemptible conduct.” Id. ¶2. On May 16, 2012, Collecto sent Plaintiff a debt collection letter which attempted to collect a debt allegedly owed by Plaintiff to New York Institute of Technology (“NYIT”). Id. ¶¶ 13, 15, 18. Plaintiff asserts that the debt was “well beyond any applicable statute of limitation.” Id. ¶ 15. Plaintiff claims that the alleged debt is also outside the time period permitted to report the debt to any consumer reporting agencies. Id. ¶ 16. Moreover, Defendant demanded 42% fee/collection costs which were “unearned, unreasonable, unconscionable, and bore no relation — reasonable or otherwise — to any actual damages incurred by NYIT or Defendant.” Id. ¶ 26.

In the instant September 20, 2013 letter motion, Plaintiff seeks to compel Defendant to produce the bookkeeping entries of 1288 consumers who received an allegedly illegal debt collection letter similar to the one received by Plaintiff. See Pl.’s Mot. to Compel (“Pl.’s Mot.”) at 1 [DE 38]. Plaintiff asserts that the requested bookkeeping entries are relevant to the determination of the actual damages incurred by Plaintiff and other class members under the FDCPA. Id. at 8. In its opposition filed on October 2, 2013, Defendant argues that Plaintiffs motion is moot in light of disclosures Defendant has agreed to produce to Plaintiff since the filing of Plaintiffs motion to compel. See Def.’s Opposition to Pl.’s Mot. to Compel (“Def.’s Opp.”) at 1 [DE 40]. On October 9, 2013, after seeking and obtaining leave of Court, Plaintiff filed a reply letter in which he explained that, contrary to Defendant’s assertion, the parties have not reached an agreement on this discovery dispute. See PL’s Reply in Further Support of PL’s Mot. to Compel (“PL’s Reply”) at 1 [DE 43]. Plaintiff claims that the items Defendant has agreed to produce are far more limited in scope than what Plaintiff believes he is entitled to in discovery. Id. Finally, on October 14, 2013, with permission of the Court, Defendant filed a sur-reply, arguing that its response to Plaintiffs document request was fully responsive and that Plaintiffs document requests are overbroad insofar as they pertain to non-class members (i.e. letter recipients who were debtors of non-NYIT educational institutions). See Def.’s Sur-reply in Opposition to PL’s Reply (“Def.’s Sur-reply”) at 2 [DE 46],

II. Background

A. The Amended Complaint

On May 16, 2012, Defendant sent a letter to Plaintiff Annunziato on behalf of NYIT [114]*114seeking payment for a total debt of $4,609.29. See Am. Compl. ¶¶ 17, 18, 24; see also May 16, 2012 Collection Placement Reminder annexed to the Am. Compl. as Exhibit A. NYIT alleges that Plaintiff owed tuition monies. Id. ¶ 13. However, Plaintiff has not attended NYIT in over sixteen years. Id. ¶ 14. Moreover, Plaintiff argues that the alleged debt is well beyond the applicable statute of limitations period. Id. ¶ 15. Plaintiff also contends that the alleged debt is outside the limitations period in which the debt could be legally reported to any consumer reporting agencies, and, consequently, onto Plaintiffs credit reports. Id. ¶ 16.

In the May 16, 2012 letter to Plaintiff, Defendant sought $1,382.79 in fees and collection costs which amounted to nearly 42% of the principal debt and 30% of the total amount due. See Am. Compl. ¶ 24. Plaintiff submits that the fees and collection costs demanded by Defendant were “not incurred by NYIT nor by Defendant and were unearned, unreasonable, unconscionable, and bore no relation — reasonable or otherwise— to any actual damages incurred by NYIT or Defendant for any goods or services supplied by NYIT and/or Defendant for any work performed by or on behalf of NYIT and/or Defendant.” Id. ¶25. Upon information and belief, Plaintiff claims that the 42% fee was imposed as an attempt by Defendant to collect unearned fees, which neither NYIT nor Defendant had incurred. Id. ¶ 26. Plaintiff alleges that the 42% fee was imposed to “try to intimidate the Plaintiff into paying the so-called ‘Principal’ out of fear that he would otherwise be liable for additional ‘Fees/Coll Costs.’ ” Id.

Plaintiff brings the instant action on behalf of a class of persons whom Plaintiff believes were “sent form letters containing language substantially similar or materially identical” to the letter sent to Plaintiff. Id. ¶29. Plaintiff believes these letters were sent to “hundreds of consumers in New York.” Id. Further, Plaintiff asserts that the following language found in the debt collection letter also violates the FDCPA:

As a result of your continued failure to address the above referenced account, we have informed our client that you have not paid this debt nor made arrangements to pay. Please be advised that our client has the right to take further steps to collect this amount.

Id. ¶ 30; see also Am. Compl., Ex. A. Plaintiff claims that this statement is “false and deceptive, in that neither the Defendant nor NYIT has the right to take ‘further steps’ to collect the alleged debt.” Id. ¶ 31. According to Plaintiff, there are “no ‘further’ steps that are legally permitted, in that the alleged debt is outside the applicable statute of limitations, and the alleged debt is outside of the period a debt can be reported onto the Plaintiffs credit reports.” Id. Consequently, Plaintiff maintains this representation constitutes intimidation to pay a debt that is not legally enforceable and, further, that Defendant had no intention to take any “further steps” to collect the debt. Id.

B. Motion for Class Certification

Plaintiff filed a motion to certify the class under Fed. R. Civ. P. 23 on February 14, 2013. See DE 13. On August 9, 2013, Judge Spatt issued a Memorandum of Decision and Order in which he, inter alia, granted Plaintiffs motion to certify the class. See Annunziato v. Collecto, Inc., 293 F.R.D. 329, 337-38, 2013 WL 4045810, at *9 (E.D.N.Y.2013). Judge Spatt modified Plaintiff’s proposed class definition and certified a class consisting of

Free access — add to your briefcase to read the full text and ask questions with AI

Annunziato v. Collecto, Inc., 296 F.R.D. 112, 2013 WL 6570782, 2013 U.S. Dist. LEXIS 177170 (E.D.N.Y. 2013).

296 F.R.D. 112 (Annunziato v. Collecto, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Goodloe v. City of New York
136 F. Supp. 3d 283 (E.D. New York, 2015)
AP Links, LLC v. Russ
299 F.R.D. 7 (E.D. New York, 2014)