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February 8, 1995



The opinion of the court was delivered by: ROSEMARY S. POOLER


 Both defendant Transworld Systems, Inc. ("TSI") and plaintiffs Louis and Emma Robinson have moved for summary judgment in this action brought pursuant to the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.) (FDCPA). TSI seeks dismissal of the complaint in its entirety while plaintiffs seek summary judgment on liability. Oral argument was heard on January 23, 1995.


 I. Factual Background

 The parties agree that TSI sent the Robinsons a series of three debt collection notices on behalf of H & R Block. The notices, which were dated August 10, 1992, August 20, 1992 and September 10, 1992 are reproduced in Appendix A. None of these notices contained the validation notice required by 15 U.S.C. § 1692g(a). TSI maintains, however, that before sending the Robinsons the August and September notices, it sent them a notice on July 31, 1992 *fn1" that did contain the language required by 15 U.S.C. § 1692g(a). *fn2"

 The parties also agree that TSI and an attorney who is not involved in this litigation previously sent Louis Robinson another series of collection notices on behalf of Dr. Fadi Abdallah (the "Abdallah Notices"). Louis Robinson *fn3" , who was represented by the same lawyer who currently represents both Robinsons, complained that the Abdallah Notices violated the FDCPA. On April 2, 1992, Louis Robinson signed a settlement agreement and release under which he released TSI from all claims arising out of the dispute concerning the Abdallah Notices. TSI President George Macaulay signed this release on July 8, 1992. The agreement required TSI to pay Louis Robinson $ 1,350.00. Louis Robinson then claimed that TSI sent another notice that violated the FDCPA after he had signed the settlement agreement and release. TSI agreed to pay an additional $ 900.00 and Louis Robinson signed another settlement agreement and release (the "Second Release") on July 29, 1992. This release, which Macaulay signed on August 25, 1992, recited that it pertained "to all claims of ROBINSON against TSI arising after April 2, 1992." It also noted that it included but was not limited to matters "arising out of or by reason of any facts or matters alleged in the dispute."

 The Robinsons' attorney first notified TSI that she represented the Robinsons with respect to the H & R Block debt on October 27, 1992.

 II. The Parties' Contentions

 The Robinsons initially alleged that they did not receive any notice of their validation rights under the FDCPA in violation of section 1692g(a). 15 U.S.C. § 1692g(a). While not conceding receipt of the July 31st notice containing the requisite validation language, the Robinsons now also argue that the validation notice in the July 31st notice was contradicted and overshadowed by both the sheer volume and the language of subsequent notices. The Robinsons also contend that TSI violated 15 U.S.C. § 1692c(a)(2) by communicating directly with them although TSI knew that the Robinsons were represented by counsel as a result of the Abdallah settlement. Finally, the Robinsons claim that all of the notices TSI sent violate 15 U.S.C. § 1692(e)(5) by threatening action which TSI did not intend to take and 15 U.S.C. § 1692e(10) by making false representations or using deceptive practices to collect a debt.


 I. Standard for Summary Judgment

 Summary judgment shall enter if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The materiality of facts must be determined with reference to the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the initial responsibility of demonstrating that there is no genuine issue of material fact to be decided. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). As to any issue on which the moving party does not have the burden of proof, the moving party may satisfy its burden by "pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

 "If the movant satisfies the burden of establishing that there is no genuine issue of material fact, then the burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of material fact exists." Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). In satisfying this burden, the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Fed. R. Civ. P 56(e). The opponent of a summary judgment motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "Merely colorable" evidence will not suffice as a basis for opposing summary judgment. Anderson, 477 U.S. at 249-50.

 In weighing a motion for summary judgment, the court must accept as true the non-moving party's evidence and make "all justifiable inferences" in the non-moving party's favor. Id. at 255. The evidentiary standard governing proof at trial determines how the court must assess the evidence in deciding whether the summary judgment standard has been met. Id. at 254-55. In an ordinary civil case, such as this one, where plaintiffs must prove their case by a preponderance of the evidence, the determinative standard is "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Id. at 252.

 A party may move for summary judgment on part or all of its claim. Fed. R. Civ. P. 56(a) and (b). In addition, if the court does not dispose of the entire case or grant all the relief requested by a party on a summary judgment motion, it should, if practicable, enter an order establishing which facts are uncontroverted and which are subject to genuine factual controversy. Fed. R. Civ. P. 56(d).

 II. The Second Release

 Emma Robinson did not sign the Second Release and cannot be bound by it. We therefore grant plaintiff partial summary judgment establishing that none of Emma Robinson's claims are barred by the Second Release.

 Under New York law, *fn4" a court must find the intent of the parties to a contract as a matter of law if that intent is clear from the language of the contract. However, if the language is ambiguous, the court must consider extrinsic evidence. Commander Oil Corp. v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). Here the cited language does not clearly support either interpretation urged by the parties and some extrinsic evidence supports either interpretation. Therefore, we reserve the issue of the parties' intent for the finder of fact.

 III. The Section 1692c(a)(2) Issue

 The Robinsons' claim that TSI violated Section 1692c(a)(2) of the FDCPA by communicating directly with them lacks merit. Section 1692c(a)(2) forbids a debt collector from communicating directly with a consumer if "the debt collector knows the consumer is represented by an attorney with respect to such debt.. . ." 15 U.S.C. § 1692c(a)(2) (emphasis added). Knowledge of prior representation with respect to a different debt does not preclude the debt collector from communicating directly with the consumer on another debt collection matter. Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991). Harvey v. United Adjusters, 509 F. Supp. 1218 (D. Or. 1981), on which plaintiffs rely, is not to the contrary. In Harvey, the debt collector knew that the consumer had been represented by counsel in a debt collection action in which the debtor ultimately confessed judgment. In addition, the debt collector knew that the consumer was represented by the same counsel in an FDCPA action in federal court. Nevertheless, after the consumer confessed judgment in the debt collection action, the debt collector communicated directly with the consumer in an effort to enforce the judgment. The court held that these communications made while the debt collector knew that the consumer was represented with respect to the very debt it sought to collect violated the FDCPA. Id at 1220-21. Here, plaintiffs have not controverted Macaulay's assertion that TSI first learned that the consumers were represented by counsel with respect to the H & R Block debt after October 27, 1992. Therefore, we grant TSI partial summary judgment establishing that notices sent directly to the consumer in July, August and September of 1992 did not violate Section 1692(c)(a)(2).

 IV. Receipt of the July 31 Notice

 TSI President George Macaulay described elaborate data verification, data entry and reconciliation procedures that TSI uses in generating debt collection notices. Most significantly, Macaulay swore that the computer program TSI uses will not send subsequent collection notices unless it has generated a first notice containing the validation notice required by 15 U.S.C. § 1692g(a). TSI's records show that a first notice was sent to the Robinsons on July 31, 1992 and not returned. The Robinsons offer no evidence to controvert the reliability of the procedures TSI uses and instead rely on a lack of specific recollection as to whether they received a notice containing the Section 1692g(a) validation language. At best, the Robinsons' lack of recollection creates a "metaphysical doubt" as to their receipt of the July 31, 1992 notice. Therefore, we find as a matter of law that the Robinsons did receive the July 31, 1992 notice. Matsushita, 476 U.S. at 586; Fed. R. Civ. P. 56(d). *fn5"

 However, because the Robinsons also claim that language in subsequent notices contradicted and overshadowed the validation language, we must still determine whether TSI's subsequent notices violated 15 U.S.C. § 1692g(a). Thus, a finding that the Robinsons received the July ...

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