Himes v. Client Services Inc.

990 F. Supp. 2d 59, 2014 DNH 002, 2014 WL 24258, 2014 U.S. Dist. LEXIS 125
District Court, D. New Hampshire·Decided January 2, 2014·No. Civil No. 12-cv-321-PB·Published·Cited by 8 cases

Opinion

MEMORANDUM AND ORDER

PAUL BARBADORO, District Judge.

This case arises from attempts made by defendants to collect a consumer debt that Susan Himes allegedly owes to Target National Bank. Himes seeks damages based on alleged violations of several federal and state laws regulating the defendants’ debt collection activities. Law Offices Howard Lee Schiff, P.C., along with Adam Olshan and David Florio (both attorneys employed by Schiff), move for summary judgment pursuant to Federal Rule of Civil Procedure 56. I grant Olshan’s and Florio’s motions in full, and I grant Schiff s motion in part and deny it in part.

I. BACKGROUND

On March 15, 2012, Himes received a letter from Client Services notifying her that Target had referred to it an unpaid consumer credit account balance of $1,002.71 for collection. Doc. No. 66^1. The letter includes a reference number, 1213837, and a Target account identification number, 00024480147.1 Id. On March 29, 2012, Himes sent Client Services a letter disputing the debt, demanding validation pursuant to the Fair Debt Collec[62] tion Practices Act (“FDCPA”), 15 U.S.C. § 1692g, and requesting that Client Services refrain from contacting her by telephone. Doc. No. 32-2. Himes received no further communications from Client Services. Doc. No. 66.

On May 19, 2012, Himes received a second collection letter, this time from Schiff. Doc. No. 66-4. The letter sought payment of $1,089.95 that Himes allegedly owed to Target and included a “CN”2 number, W70803. Id. The letter states in part:

THIS IS AN ATTEMPT TO COLLECT A DEBT. ANY FURTHER INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. THIS COMMUNICATION IS FROM A DEBT COLLECTOR.
VALIDATION NOTICE
If you do not dispute the validity of the debt, or any portion thereof, within 30 days of the receipt of this letter, the debt collector will assume it is valid. If you dispute the validity of this debt or any portion thereof in writing within 30 days of receipt of' this letter, we will obtain and mail you verification of the debt or a copy of a judgment against you. At your request in writing within 30 days of receipt of this letter, we will provide you with the name and address of the original creditor, if different from the current creditor.

Id. On May 23, 2012, Himes sent Schiff a demand for validation and a request to refrain from- telephone communication. Doc. No. 66-5. In response, Himes received a letter fcom Schiff on June 4, 2012 containing a copy of Himes’s final Target credit card account statement, dated May 8, 2012. Doc. No. 66-6. The statement includes Target’s account identification number, 00024480147, along with the final four digits of the credit card account number, 5461, as well as Schiffs handwritten CN number in the upper margin. Id. It lists Himes’s new balance as $1089.95, which includes a $35.00 late payment fee in addition to the previous balance of $1,054.95. Id. The statement also includes Target’s mailing address on the bill payment slip. Id. Himes disputes that the statement reflects a valid debt. Doc. No. 66.

Himes alleges that she received two calls on her personal cell phone from an automated dialer owned by Schiff on August 8 and 15, 2012, despite having previously demanded that Schiff refrain from all telephone contact. Id. The defendants deny that they ever called Himes. Doc. Nos. 63-2, 63-3, 63-4.

On July 24, 2012, Target, by its attorneys Olshan and Florio, served Himes with a small claims complaint in New Hampshire Circuit Court. The complaint states that on or before May 8, 2012, Himes owed a delinquent balance of $1089.95 on account number 4352377599305461 and Target seeks damages for the current balance due, $1,054.95. Doc. No. 66-7. The court entered a judgment of $1,139.983 for Target on February 27, 2013 after making the following findings of fact:

Between 2007 and 2012 .... monthly statements were forwarded to Susan E. Himes at [her home] address, and during that time small electronic payments were made and credited to that account. Payments ceased and the account was [63] charged off leaving a balance of $1,054.95.
Ms. Himes testified under oath that she has' no recollection of ever having had a Target credit card; she has no recollection of ever receiving any' invoices from Target; had no recollection of ever making any payments on the account. She maintains that the plaintiff has failed to prove that the account is hers. Although she has had full discovery in this matter, she provided no documentation to the court that the electronic payments credited to the account did not come from her bank accounts.
The court finds that [Target] has met its burden of proof, and the court is well satisfied that the account in question belongs to Ms. Himes.

Target Nat’l Bank v. Himes, No. 12-SC-206, slip op. at 1-2 (N.H.Cir.Ct. Feb. 27, 2013); Doc. No. 63-5.

On August 23, 2012, Himes filed a pro se complaint in this court alleging that each defendant had violated the FDCPA, 15 U.S.C. §§ 1692e(2, 10), 1692f(l), 1692g(a)(1)(2)(4)(5)(b), 1692g(b), and New Hampshire’s Unfair, Deceptive or Unreasonable Collection Practices Act (“UDUCPA”), N.H.Rev.Stat. Ann. § 358-C:3(VII-VIII, X), and that Schiff had violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii). Doc. No. 1. Himes amended her complaint on November 6, 2012 to add a claim against all defendants under New. Hampshire’s Consumer Protection Act (“CPA”), N.H.Rev.Stat. Ann. § 358-A:2. Doc. No. 28. On April 22, 2013, 2013 WL 1737153,1 granted Client Services’ motion to dismiss the amended complaint for failure to state a claim. Doc. No. 43. Following discovery, the remaining defendants moved for summary judgment on October 8, 2013. Doc. Nos. 62, 63. Himes filed an objection to the motion on December 4, 2013. Doc. No. 66.

II. STANDARD OF REVIEW

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Himes v. Client Services Inc., 990 F. Supp. 2d 59, 2014 DNH 002, 2014 WL 24258, 2014 U.S. Dist. LEXIS 125 (D.N.H. 2014).

990 F. Supp. 2d 59 (Himes v. Client Services Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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