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BARRIENTOS v. LAW OFFICES OF MARK L. NICHTER

December 9, 1999

GUADALUPE BARRIENTOS, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
LAW OFFICES OF MARK L. NICHTER A.K.A. MARK L. NICHTER P.C., AND MARK L. NICHTER, DEFENDANTS.



The opinion of the court was delivered by: McMAHON, District Judge.

MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR
  SUMMARY JUDGMENT AND REFERRING CASE TO MAGISTRATE FOR
  DETERMINATION OF DAMAGES

Plaintiff Guadalupe Barrientos brought a class action under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 (1994), against Defendants Law Offices of Mark L. Nichter (a/k/a "Mark L. Nichter, P.C.") and Mark Nichter individually, for (1) failing to provide proper notice of her right under the FDCPA to challenge within 30 days a debt for which Defendant Nichter sought payment, and (2) false or misleading representations in connection with collection of the debt. Plaintiff has moved for summary judgment on both claims. For the reasons that follow, her motion is granted, and the case is referred back to the Magistrate for a determination of her damages.

Background

  This office has been engaged to proceed against you
  because of your failure to make payment on the above
  past due debt. If we do not receive payment we may
  recommend legal proceedings against you without
  further notice.
  We caution you that we will not permit this debt to
  be ignored.
  It would definitely be in your best interest upon
  receipt of this letter to satisfy in full your
  outstanding balance. Make your check payable to the
  above creditor and send it to us. An envelope is
  enclosed for your remittance.
  Unless you notify this office within 30 days after
  receiving this notice that you dispute the validity
  of this debt or any portion thereof, this office will
  assume that the debt is valid. If you notify this
  office in writing within 30 days from receiving this
  notice, this office will obtain verification of the
  debt or obtain a copy of judgment and mail you a copy
  of such judgment or verification. If you request in
  writing within 30 days after receiving this notice,
  our office will provide you with the name and address
  of the original creditor if different from the
  current creditor. This is an attempt to collect this
  debt by a debt collector and any information obtained
  will be used for that purpose.

Very truly yours,

The Law Offices of Mark L. Nichter

On May 1, 1998, Defendants sent Plaintiff a second letter, which stated:

  Although notices and demands have been made upon you
  for payment of this liability due our client as shown
  [in the caption] above, we have no record of receipt
  of payment from you.
  We have been authorized by our client to take any
  lawful action we deem necessary to collect this debt.
  Please make payment today so we can put this matter
  to rest. Make your check or money order payable to
  our client and send it to us using the enclosed
  self-addressed envelope. Be sure to include ...

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