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WHITE v. SIMONSON & COHEN P.C.
September 9, 1998
Henna White, Plaintiff, against Simonson & Cohen P.C., Defendant.
The opinion of the court was delivered by: TRAGER
Plaintiff brought this action against defendant law firm alleging that a debt collection letter she received from defendant violated the Fair Debt Collection Practices Act ("Act" or "FDCPA"), 15 U.S.C. § 1692 et seq. Defendant filed a motion for summary judgment, pursuant to Fed.R.Civ.P. 56, arguing, inter alia, that it is not a "debt collector" under the Act and, therefore, is not subject to suit thereunder. Plaintiff cross-moved for summary judgment arguing that defendant is a "debt collector" and, as such, sent plaintiff a collection letter containing numerous violations under the Act. Because the extent of defendant's debt collection activity is not sufficient to make it a "debt collector," it is not subject to suit under the Act and defendant's motion for summary judgment is granted.
The material facts are not in dispute. Defendant law firm's partner, Robert M. Cohen is the personal lawyer for Dr. Jack Troper, a partner in the medical practice of Boro Park Obstetrics And Gynecology ("Boro"). Defendant claims that as a personal favor for Dr. Troper, Cohen agreed to send out 35 collection letters for Boro. Thirty-five letters were sent out all on the same day. The letter plaintiff received read:
Please be advised that our firm represents Boro Park Obstetrics And Gynecology, PC. They have advised us that you have an outstanding balance in the amount of $ 400.00. Said sum is due and payable as of November 23, 1994.
Prior to commencing legal action, it is our firm's policy to resolve matters such as this in an amicable fashion. Kindly forward payment payable to Boro Park Obstetrics And Gynecology PC, promptly, to my attention within ten days from receipt of this letter.
If you fail to take such action, you will leave us no alternative but to commence suit for collection. For your convenience, I am enclosing a copy of the invoice of services rendered on your behalf, and the amount due.
Trusting that you give this matter your immediate attention.
After receiving this letter, plaintiff's husband, Asher White, telephoned Cohen and assured him that the bill would be paid. White, who is an attorney, followed-up on this conversation with a letter to Cohen that stated: "As per our conversation on August 18, 1995 I am sending the bill to my insurance companies including G.H.I. and Blue Cross/Blue Shield. I realize any payments not made by the insurance companies remains our obligation. Thank you for your consideration in this matter." Affidavit of Robert M. Cohen, Exhibit B. Because of White's phone call and letter, Cohen did not include plaintiff's file with the thirty-four others he forwarded to a collection lawyer, apparently selected by the client, who would initiate litigation if it became necessary to effect payment on the outstanding balances described in the letters.
The Fair Debt Collection Practices Act, 15 U.S.C. § 1692a(6) reads:
The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or ...
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