Saunders v. NCO Financial System, Inc.

910 F. Supp. 2d 464, 2012 WL 6644278
CourtDistrict Court, E.D. New York
DecidedDecember 19, 2012
DocketNo. 12-cv-1750 BMC
StatusPublished
Cited by15 cases

This text of 910 F. Supp. 2d 464 (Saunders v. NCO Financial System, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Saunders v. NCO Financial System, Inc., 910 F. Supp. 2d 464, 2012 WL 6644278 (E.D.N.Y. 2012).

Opinion

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

The legislative history of both the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. and the Telephone Communications Practice Act (“TCPA”), 47 U.S.C. § 227 et seq. discloses a well-based concern by Congress to reduce abusive practices that collection companies had employed against debtors and consumers. Like any statutes, however, remedial • laws can themselves be abused and perverted into money-making vehicles for individuals and lawyers. This may be one of those cases. The evidence in the record before me suggests that plaintiff may have engaged in a game of cat and mouse with first his creditor and then its collection company, obscuring his identity so that there was no way the collection company could know with whom it was dealing, all for the purpose of creating this lawsuit. I am granting defendant’s motion for summary judgment, and I am requiring plaintiff and his attorney to show cause why monetary sanctions should not be imposed under Rule 11 of the Federal Rules of Civil Procedure.

BACKGROUND

The following facts are not in dispute. On or about August 27, 2009, plaintiff opened an account with Public Access to Court Electronic Records (“PACER”), which is an electronic public access service that allows users to obtain case and docket information from federal courts via the Internet. In opening the account, plaintiff did not use his own name. Instead, he listed the account holder as “PLS” (apparently those are his initials). In addition, although PACER requires an address to open an account, plaintiff did not give his correct address in Brooklyn. Instead, he provided his mother’s address in Glenn Dale, Maryland even though he had not lived there for almost 15 years. Finally, as PACER requires a contact telephone number, plaintiff listed his cell phone number as the only number on the application.

PACER charges on a per-page retrieval basis, and plaintiff incurred charges of $36.35. He quickly defaulted on this debt, [466]*466and PACER turned plaintiffs, account over to defendant NCO Financial Systems, Inc. for collection on October 6, 2010. Five days later, on October 11, 2010, NCO sent a “validation notice,” that is, a notice pursuant to 15 U.S.C. § 1692g, that the debt had been assigned to it for collection, and advising the account debtor of his rights, to the only address plaintiff had given it — the Maryland address.1 Plaintiff never received that- letter. Three days after sending the letter, NCO began calling the number on file in an effort to reach the responsible party, “PLS.” At least some of the calls were automated, recorded voice calls.

Plaintiff wrote to NCO on March 16, 2011. In this letter, he recited that he had. received two automated calls on that day, and that he was writing “pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. 1692(g),” to advise NCO “that your claim is disputed and validation is requested.” Plaintiff requested that NCO stop contacting him by phone “about the above-referenced debt” and insisted that all future communications with plaintiff must be done in writing and sent to the address noted in the letter. The letter further requested identification of the creditor, the amount of the debt, and the original account number.

Significantly, the letter did not disclose or mention in any way that plaintiff was writing with reference to an account in the name of “PLS,” nor did it disclose that the address of the account debtor was in Maryland. In addition, the letter did not contain the telephone number -that NCO had been calling. NCO- checked its records for an account under plaintiffs name or at the address on his letter — his home address in Brooklyn — and could not locate the account. NCO therefore wrote back to plaintiff on April 22, 2011, advising plaintiff that it could not find an account in his name, and asking him to supply further information such as his social security number and the telephone number at which it was allegedly calling plaintiff.

Plaintiff responded by letter dated April 27, 2011. He identified the dates and times at which he had received automated calls since sending his initial letter and the NCO number which the automated caller asked him to call in order to reach “Anthony Davis with NCO.” Plaintiff again demanded cessation. Once again, however, he did not disclose the name of the ac- ' count, the address of the account, or the telephone number to which the calls were being made. In fact, plaintiff expressly declined to provide any additional information, saying he did not feel “comfortable,” and that he was “reserve[ing] the right to seek any remedies allowed by law to resolve this matter.”

On May 10, 2011, NCO wrote back, again advising plaintiff that it still could not identify a debtor named Patrick Saunders with an address in Brooklyn, and again asking for information as to the identity of the original creditor or the account number, and, again, the telephone number at which plaintiff was being called.

’ Plaintiff failed to respond to this- letter. Instead, he filed a complaint with the New York City Department of Consumer Affairs (“NYCDCA”). NYCDCA contacted [467]*467NCO, but with the same absence of accurate identifying information, NCO still could not locate the account, and it so advised NYCDCA.

Finally, on May 23, 2011,'plaintiff called NCO and gave a customer service representative the actual address and telephone number on the account. The representative thereupon located the account. Plaintiff advised that he would be sending a fax to confirm his request that NCO cease and desist collection efforts, but he never sent the fax. Instead, he brought this lawsuit.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those that “affect the outcome of the suit under the governing law,” and “[a]n issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Shade v. Horn. Auth. of New Haven, 251 F.3d 307, 314 (2d Cir.2001) (citation omitted). In determining whether there is a genuine issue as to any material fact, “the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

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Bluebook (online)
910 F. Supp. 2d 464, 2012 WL 6644278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saunders-v-nco-financial-system-inc-nyed-2012.