Weissman v. ABC Financial Services, Inc.

203 F.R.D. 81, 2001 U.S. Dist. LEXIS 15489, 2001 WL 1141332
CourtDistrict Court, E.D. New York
DecidedSeptember 22, 2001
DocketNo. CV00-3507(ADS)
StatusPublished
Cited by18 cases

This text of 203 F.R.D. 81 (Weissman v. ABC Financial Services, 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
Weissman v. ABC Financial Services, Inc., 203 F.R.D. 81, 2001 U.S. Dist. LEXIS 15489, 2001 WL 1141332 (E.D.N.Y. 2001).

Opinion

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This class action arises from a claim by Ethel Weissman (“Weissman” or the “plain[82]*82tiff’) that ABC Financial Services, Inc. (“ABC” or the “defendant”) violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et. seq., in its capacity as a collection agency, by mailing the plaintiff two letters containing language prohibited by the FDCPA. Presently before the Court are: (1) a motion by the defendant to compel the plaintiff to accept its offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure (“Fed.R.Civ.P.”); (2) a motion by the defendant to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6); and (3) a motion by the plaintiff to certify the proposed class.

I. BACKGROUND

The following facts are taken from the complaint and documents attached to it. On or about April 3, 2000, ABC mailed the plaintiff a notice stating that her account at “Exercise Express” was past due. The notice, which is attached to the complaint, states that Weissman owed the sum of $89 plus a late charge of $7 for a total amount of $96. The letter informs Weissman that if she fails to act promptly, her credit standing and membership could be impaired. In the notice, ABC also advised Weissman that “if the total amount due is not received, we are prepared to take whatever steps we deem necessary in collecting this balance.”

On or about April 17, 2000, ABC mailed the plaintiff a second notice, in which ABC states that it is giving Weissman one more opportunity to pay the amount owed to “Exercise Express.” This second notice, which also is attached to the complaint, states that Weissman owed the sum of $89 plus a late charge of $14 for a total amount of $103. The letter further informs Weissman that failure to remit the amount due within five days will result in “further collection activity against you.”

In the complaint, Weissman asserts that the April 3, 2000 notice violates the FDCPA because, among other things, it contains a late charge and requires that disputes about the amount owed must be placed in writing. Wiessman maintains that the April 17, 2000 notice violates the FDCPA because, among other things, it contains a late charge and contradicts the first notice in regard to when payment is due. Weissman seeks full relief under the statute for herself and similarly situation individuals.

Weissman filed her complaint on June 14, 2000. ABC filed their answer on July 21, 2000. In papers dated August 30, 2000, ABC, through its attorney, made an offer of judgment pursuant to Fed.R.Civ.P. for the sum of $1000 plus the sum of $500 representing costs and reasonable attorney’s fees for a total of $1500. Weissman neither accepted nor rejected the offer of judgment.

In papers filed on September 6, 2000, Weissman moved for class certification. ABC opposed that motion in papers filed on September 25, 2000. Then, in papers filed on October 19, 2000, ABC moved to compel the plaintiff to accept the offer of judgment and to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). The plaintiff opposed this motion in papers filed on the same day. These two motions are presently before the Court.

II. DISCUSSION

A. The Motion to Dismiss

ABC argues that Weissman’s complaint should be dismissed because its Rule 68 offer of judgment renders Edge’s claim moot. ABC further argues that the entire complaint should be dismissed, because the class representative’s claim has been mooted before certification.

This Court was presented with a virtually identical factual situation in Edge v. C. Tech Collections, Inc., 203 F.R.D. 85 (E.D.N.Y. 2001), which was at the same procedural posture as this case. In Edge, the plaintiff filed his FDCPA complaint on January 25, 2001. In a letter dated March 2, 2001, C. Tech made an offer of judgment pursuant to Fed.R.Civ.P. 68 offering Edge damages in the amount of $1000 plus the sum of $2500 representing reasonable costs and attorney’s fees.

This Court joined two other Courts in this Circuit in agreeing with the reasoning of Ambalu v. Rosenblatt, 194 F.R.D. 451 [83]*83(E.D.N.Y.2000). See also Tratt v. Retreival Masters Creditors Bureau, Inc., 2001 WL 667602 (E.D.N.Y.2001); Wilner v. OSI Collection Services, Inc., 198 F.R.D. 393 (S.D.N.Y.2001). Ambalu, essentially holds that when a defendant in an FDCPA case makes an offer of judgment pursuant to Fed. R.Civ.P. 68 prior to the filing of a motion for class certification and offers the maximum amount the plaintiff can recover under the statute, the plaintiff no longer has a personal stake in the matter, a case or controversy no longer exists, and the case must be dismissed for lack of subject matter jurisdiction. See Ambalu, 194 F.R.D. at 452-53; see Tratt, 2001 WL 667602 at *2 (adopting Ambalu as dispositive and granting the defendant’s motion to dismiss); Wilner, 198 F.R.D. at 395-97 (dismissing the complaint because the defendant’s offer of judgment offered the maximum amount the plaintiff could recover under the statute).

In Edge, the Court noted that Wilner v. OSI Collection Services, Inc. (Wilner II), 201 F.R.D. 321 (S.D.N.Y.), added a wrinkle to the mootness issue in FDCPA cases. Namely, on reconsideration, the Court in Wilner II found that the offer of judgment, in fact, had not offered the maximum amount the plaintiff could have recovered under the statute, because it placed a cap on the costs and attorney’s fees, the availability of which the Court found to be “integral” to the FDCPA. Wilner II, 201 F.R.D. at 323 (citing Teng v. Metropolitan Retail Recovery, Inc., 851 F.Supp. 61 (E.D.N.Y.1994)). Cf. Tratt, 2001 WL 667602 * 1 (offer of judgment offered the statutory maximum of $1000 plus attorney’s fees and costs, which were left unspecified) Ambalu, 194 F.R.D. at 452 (same).

This Court found the reasoning and findings of Wilner II to be directly applicable to the facts presented by Edge v. C. Tech Collections, 01 CV 0447, because the defendant’s offer of judgment in that case also placed a cap on the amount of costs and attorney’s fees that could be awarded. As in Wilner II, the offer of judgment offered the statutory maximum of $1000, plus costs and attorney’s fees in the specific amount of $2500. Thus, this Court concluded that because the offer of judgment capped costs and attorney’s fees, the defendant did not offer the plaintiff the maximum amount recoverable under the statute.

The Court is presented with the same scenario in this case.

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Bluebook (online)
203 F.R.D. 81, 2001 U.S. Dist. LEXIS 15489, 2001 WL 1141332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weissman-v-abc-financial-services-inc-nyed-2001.