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SAVINO v. COMPUTER CREDIT

April 11, 1997

FRANK SAVINO, on behalf of himself and all others similarly situated, Plaintiff,
v.
COMPUTER CREDIT, INC., Defendant.



The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 This action arises from the claims of the plaintiff, Frank Savino ("Savino" or the "plaintiff"), on behalf of a putative class, that the defendant, Computer Credit, Inc. ("CCI" or the "defendant"), has acted in violation of the Fair Debt Collection Practices Act ("FDCPA" or the "Act"), 15 U.S.C. ยง 1692, et seq., in its capacity as a collection agency, by mailing the plaintiff a letter which contains language contrary to the statute's requirements. Presently before the Court are three applications: (1) the defendant's objections to the February 21, 1997 order of United States Magistrate Judge Arlene R. Lindsay granting the plaintiff's motion for leave to file a second amended complaint; (2) the defendant's motion for summary judgment and related costs and attorney's fees; and (3) the plaintiff's cross motion for partial summary judgment as to liability or in the alternative for a stay of the defendant's motion for summary judgment pending completion of discovery.

 I. Background

 The plaintiff is a resident of Hauppauge, New York. The defendant is a debt collection agency with its principal place of business in Winston-Salem, North Carolina. According to the original complaint, dated October 22, 1995, the plaintiff received a letter from the defendant dated August 28, 1995, the purpose of which was to collect an alleged debt of $ 153.00 owed to North Shore Hospital. In this pleading Savino alleged that this August 28, 1995 letter was the "first and only letter" that he received with respect to the alleged debt. Compl. P 8. The complaint continued by alleging that this letter failed to advise the plaintiff of "his right to validate and dispute the alleged debt" within 30 days and that CCI applied "false, deceptive and misleading means in connection with the collection" of the alleged debt, all in violation of the FDCPA. Compl. PP 9, 10. In addition, Savino alleges that he is acting on behalf of a class of similarly situated consumers whose rights have been violated.

 By notice of motion dated August 12, 1996, the plaintiff moved for leave to file an amended complaint pursuant to Fed. R. Civ. P. 15(a). According to the moving papers, after this action was commenced, plaintiff's counsel was advised that his client had been sent a prior letter by CCI with regard to the aforementioned debt which letter was dated August 14, 1995. Based on this representation, and the recently issued decision from the Second Circuit, Russell v. Equifax I.R.S., 74 F.3d 30 (2d Cir. 1996), the plaintiff decided that it would be appropriate to file an amended complaint. Initially the plaintiff attempted to obtain the defendant's consent to file the amended pleading. CCI refused. Accordingly, the plaintiff filed the appropriate motion pursuant to Fed. R. Civ. P. 15(a).

 The only substantive difference between the original and proposed amended complaints was that in addition to asserting that the August 28, 1995 letter was the first correspondence sent, Savino alleged in the alternative that, "upon information and belief, CCI mailed an earlier letter to Savino, dated August 14, 1995, which was the first communication by CCI to Savino, or at least, CCI's first letter to Savino." Am. Compl. P 10. The proposed amended complaint continued by alleging that while this letter did contain the required 30 day debt validation notice, it nevertheless violated the FDCPA "by containing language that overshadows, contradicts or is otherwise inconsistent with Savino's right to a 30 day statutory period in which to validate and [sic] dispute the alleged debt . . . ." Am. Compl. P 11.

 By order dated September 18, 1996, this Court referred the motion for leave to file an amended complaint to Magistrate Judge Lindsay to render a decision. A report and recommendation would be necessary only if the decision was dispositive as to any claim or issue in the action.

 In a thoughtful memorandum order dated November 7, 1996, a decision with which the Court agrees, Judge Lindsay granted the plaintiff's motion and the proposed amended complaint was deemed filed. The defendant did not file any objections to this order. On November 13, 1996, at a conference before Judge Lindsay, the plaintiff discontinued his claim based on the August 28, 1995 letter.

 On February 20, 1997 at his deposition, Savino admitted that he received the August 14, 1995 letter. The following day, the plaintiff moved for leave to file a second amended complaint deleting any initial denial that he never received the August 14, 1995 letter, alleging instead that he "received a letter from the Defendant dated August 14, 1995 for the purpose of collecting an alleged debt of $ 153.00 incurred by Savino with North Shore Hospital. This was the first letter Plaintiff Savino received from the Defendant with respect to the alleged debt." Sec. Am. Compl. P 7 (emphasis in original). The proposed second amended complaint does not contain any reference to the August 28, 1995 letter, instead alleging that the August 14, 1995 letter violated his rights pursuant to the FDCPA.

 By order dated February 21, 1997, Judge Lindsay granted the plaintiff's motion for leave to file the second amended complaint. CCI filed its objections on March 7, 1997. On March 26, 1997, the defendant's motion and plaintiff's cross motion for partial summary judgment or in the alternative for a stay of the defendant's motion were filed.

 II. Objections to the February 21, 1997 order

 The defendant's objections to Judge Lindsay's order granting the plaintiff leave to file a second amended complaint are easily resolved. The plaintiff's motion for leave to amend seeks only to delete any allegations referring to the August 28, 1995 letter, thereby narrowing the issues for trial. While the Court appreciates the apparent disingenuous nature of the plaintiff initially denying that he ever received the August 14, 1995 letter and then subsequently reversing his position, the Court is inclined to agree with Judge Lindsay that once a plaintiff has been permitted to incorporate inconsistent facts in his pleadings pursuant to Fed. R. Civ. P. 8(e)(2), there is no precedent for the proposition that one of these alternatives may not be withdrawn. Accordingly, the Court adopts Judge Lindsay's February 21, 1997 orders regarding the plaintiff's motion for leave to file a second amended complaint as the decision of the Court.

 However, the Court notes that a superseded pleading in a civil case may constitute an admission. In United States v. GAF Corp., 928 F.2d 1253 (2d Cir. 1991), it was held:

 
A pleading prepared by an attorney is an admission by one presumptively authorized to speak for his principal. . . . When a pleading is amended or withdrawn, the superseded portion ceases to be a conclusive judicial admission; but it still remains as a statement once seriously made by an authorized agent, and as such it is competent evidence of the facts stated, though controvertible, like any other extra-judicial admission made by a party or his agent. . . . If the agent made the admission without adequate information, that goes to its weight, not its admissibility.
 
Id. (quoting Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, Inc., 32 F.2d 195, 198 (2d Cir.), cert. denied, 280 U.S. 579, 74 L. Ed. 629, 50 S. Ct. 32 (1929).
 
The rule that inconsistent prior pleadings should be made available for the jury's comparison was reaffirmed recently by this Court in Andrews v. Metro-North, 882 F.2d 705 (2d Cir. 1989). There, we wrote that a district court's refusal to permit jurors to be informed of an amendment to a complaint, and to examine the original complaint was "a substantial abuse of discretion." Id. at 707 (citing McKeon, 738 F.2d at 31; and Dexter & Carpenter, 32 F.2d at 198). This Court held that the district court's rulings were in error, and that the statements in the complaints constituted admissions. Id.

 GAF Corp., 928 F.2d at 1259-60.

 In addition, the prior complaints may be used to impeach the credibility of the plaintiff.

 III. The motion and cross motion for summary judgment

 A. Summary judgment standard

 A court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 ...


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