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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,
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.
Neither party has provided an adequate statement of facts —
including the nature of the debt at issue — in its brief, so what
follows are the undisputed facts as the Court has been able to
glean them from the parties' supporting papers.*fn1 On January
29, 1997, Plaintiff apparently underwent an unidentified medical
procedure at "Cardio Consultants of Westchester," for which she
incurred a charge of $40.00. As of April 10, 1998, she had not
paid her bill, and, as required under § 1692g of the FDCPA,
Defendant Nichter, on behalf of Cardio Consultants, sent her a
letter including a "validation notice," which informed Plaintiff
of her right to contest the claimed debt within 30 days. The
letter read as follows:
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
We caution you that we will not permit this debt to
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.
The Law Offices of Mark L. Nichter
On May 1, 1998, Defendants sent Plaintiff a second letter,
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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