The opinion of the court was delivered by: SPATT
This action arises from the claims of the plaintiff, Frank Savino ("Savino" or the "plaintiff"), that the defendant, Computer Credit, Inc. ("CCI" or the "defendant"), acted in violation of the Fair Debt Collection Practices Act ("FDCPA" or the "Act"), 15 U.S.C. § 1692, et seq., in its capacity as a collection agency, by mailing letters which contain language contrary to the statute's requirements. Presently before the Court are the following motions: (1) the defendant's motion pursuant to Fed.R.Civ.P. 11 requesting the imposition of sanctions and attorney's fees against the plaintiff and his attorney; and (2) the plaintiff's motion pursuant to 15 U.S.C. §§ 1692k(a)(2)(A) and 1692k(a)(3) for the award of statutory damages "in the Court's discretion, up to a maximum amount of $ 1,000.00," attorney's fees in the amount of $ 38,948.75, and related costs in the amount of $ 316.74.
A. The Complaints and the Plaintiff's Deposition Testimony
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 debt. Compl. P 8 (emphasis in original). The complaint continued by claiming 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 asserted 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. 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 dated August 14, 1995 with regard to the aforementioned debt. Based on this representation, and the Second Circuit decision in Russell v. Equifax A.R.S., 74 F.3d 30 (2d Cir. 1996), a case which outlined the parameters of FDCPA violations, the plaintiff decided that it would be appropriate to file an amended complaint. Initially Savino 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 complaint was that in addition to asserting that the August 28, 1995 letter was the first correspondence received, Savino alleged 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 claiming 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 United States Magistrate Judge Arlene R. Lindsay to render a decision. By memorandum order dated November 7, 1996, Judge Lindsay granted the plaintiff's motion. The defendant did not file any objections to this order and the proposed amended complaint was deemed filed. On November 13, 1996, at a conference before Judge Lindsay, the plaintiff discontinued his claim based on the August 28, 1995 letter.
At the plaintiff's deposition on February 20, 1997, however, Savino contradicted his prior representations and claimed that he did receive the August 14, 1995 letter:
Mr. Dougherty [Defense Counsel]:
Turning to the subject of the lawsuit that you filed against Computer Credit, Inc., I am going to show you a letter dated August 14, 1995--
Q Have you seen this document before or a copy of it?
Q When was the first time you saw it?
A Approximately -- what I can remember -- around, about August 25th, approximately.
Q I don't want any assumptions. I want your recollection?
A I can't give you a definitive.
MS. PAOLUCCI: To clarify your answer, is it whenever you received it in the mail?
MR. DOUGHERTY: I don't want any clarifications. This is a critical point.
Q Did you receive a copy of this letter through the mail, at your home at 151 ...