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Melissa Michael v. Javitch

November 15, 2011

MELISSA MICHAEL,
PLAINTIFF,
v.
JAVITCH, BLOCK & RATHBONE, LLP,
DEFENDANT.



The opinion of the court was delivered by: Judge Donald C. Nugent

MEMORANDUM OPINION

This matter is before the Court on the Motion for Judgment on the Pleadings filed by Defendant, Javitch, Block & Rathbone, LLC, on September 21, 2011. (Docket #26.) On September 9, 2011, Plaintiff, Melissa Michael, filed her First Amended Complaint (Docket #22) against Defendant, asserting violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. and State law. Plaintiff alleges that the letter Defendant sent her regarding an outstanding credit balance failed to conform to the law and constitutes an unfair debt collection practice. Plaintiff brought her Complaint on behalf of herself, and others similarly situated.

Plaintiff filed her Brief in Opposition to Defendant's Motion for Judgment on the Pleadings on October 21, 2011. (Docket #30.) Defendant filed its Reply Brief on October 26, 2011. (Docket #32.)*fn1

Factual Background

On or about May 12, 2010, Citibank placed a credit card debt allegedly owed by Plaintiff for collection with Defendant. On May 18, 2010, as required by 15 U.S.C. § 1692g, Defendant sent Plaintiff a letter, which reads as follows:

* * * RE: File No - RCD J35549 nyh Creditor - Citibank (South Dakota), N.A.

THE HOME DEPOT Balance Due - $2,725.00 We represent the above creditor concerning the above balance due, which was placed with us for collection.

Although we are a law firm, at this time, no attorney has evaluated your case, or made any recommendations regarding the validity of the creditor's claims, or personally reviewed the circumstances of your account. If making a payment, payment should be made payable to the creditor listed above.

To discuss this matter, please contact:

Michael Collins at (800) 837-4601 (toll free) weekdays during business hours. Unless you, within thirty days after receipt of this notice, dispute the validity of this debt, or any portion thereof, the debt will be assumed to be valid by us. If you notify us in writing within the thirty-day period that the debt, or any portion thereof, is disputed, we will obtain verification of the debt and a copy of such verification will be mailed to you by us. 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. We as a debt collector are attempting to collect a debt and any information obtained will be used for that purpose.

Our request that you contact us by telephone does not affect the requirement under federal law that to obtain verification of the debt, you are required to timely notify us of a dispute in writing.

Sincerely, Javitch, Block & Rathbone LLP Plaintiff alleges that prior to May 18, 2010, the date of Defendant's letter, she negotiated a payment plan with CitiBank, by which she would pay $50 per month toward her total debt of $2,775.00. The terms and conditions of this agreement were memorialized in a letter from CitiBank to Plaintiff, dated May 12, 2010. There is no allegation in the Complaint that Defendant knew of this agreement prior to sending its letter to Plaintiff.

Plaintiff does not allege that she timely disputed the validity of the debt or requested verification of the debt.

Defendant filed suit against Plaintiff in the South Euclid Municipal Court, Case No. 10CVF490 on or about June 28, 2010. Counsel for Plaintiff, Mr. Connick, entered his appearance in that case on or about July 20, 2010. On August 6, 2010, Mr. Connick sent Defendant a letter explaining Plaintiff's repayment arrangement. On August 16, 2010, Mr. Connick spoke with the attorney handling the South Euclid Municipal Court case, who then conferred with Citibank. On August 27, 2010, Defendant dismissed the South Euclid Municipal Court case without prejudice by Notice of Voluntary Dismissal.

Plaintiff filed her First Amended Complaint on September 9, 2011 (Docket #22). In Count I, Plaintiff alleges numerous violations of the FDCPA, and states that she raises her claims on behalf of herself and four sub-classes. Specifically, Plaintiff states the following:

Defendant violated the FDCPA by falsely representing the character, amount or legal status of debt. (Complaint at Paragraph 73.)

Defendant violated the FDCPA by falsely misrepresenting and/or using of a business, company, or organization name other than the true name of the Defendant's business, company, or organization. (Complaint at Paragraph 74.) Defendant violated the FDCPA by wrongfully attempting to collect a non-defaulted debt subject to a pay back agreement. (Complaint at Paragraph 75.) Defendant violated the FDCPA by failing to advise unrepresented consumers, such as Plaintiff, that they could take no legal action against them. (Complaint at Paragraph 76.)

Defendant violated the FDCPA by using the authority and credibility created by its letterhead to collect debt and/or convey the threat of suit, without any meaningful review of the consumer's account. (Complaint at Paragraph 77.) Defendant violated the FDCPA by using its position and title as attorneys in order to add a false sense of heightened urgency and intimidation to its collection practices, without any meaningful attorney review of the consumer's account. (Complaint at Paragraph 78.)

Defendant violated the FDCPA by mailing a letter that would confuse the "lease sophisticated consumer" about his/her rights. (Complaint at Paragraph 79.)

The absence of attorney evaluation violates Section 1692e(3) of the FDCPA, which prohibits the "false representation or implication that any individual is an attorney or that any communication is from an attorney." (Complaint at Paragraph 80.)

Defendant violated the FDCPA by mailing a letter that implied that an attorney, acting as an attorney was involved in collecting Plaintiff's debt. (Complaint at Paragraph 81.)

Defendant violated the FDCPA by making a letter that failed to disclose that the contact person was a paralegal -- and not an attorney -- thus conveying the "least sophisticated consumer" that an attorney had reviewed their file and determined that he/she was a candidate for legal action. (Complaint at Paragraph 82.) Defendant violated the FDCPA by mailing a letter that was false and misleading in that it raised the specter of potential legal action by using its law firm title to collect a debt when the firm was not acting in its legal capacity when it sent the letters. (Complaint at Paragraph 83.)

Defendant violated the FDCPA by mailing a letter with an alleged (and insufficient) disclaimer that failed to clarify to the "least sophisticated consumer" that the law firm, despite overshadowing representations in the letter, was acting solely as a debt collector. (Complaint at Paragraph 84.)

In Count 2, Plaintiff alleges a State law claim for false light invasion of privacy. Plaintiff states that the lawsuit filed against her by Defendant in the South Euclid Municipal Court placed her in a false light in the ...


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