Countryman, 2000 WL 156837, *2; Filsinger, 2000 WL 198223,
*2. Plaintiffs have come forward with no proof that defendant had
any actual knowledge of any communications by plaintiffs which
required the cessation of communication and defendant
specifically denies any such knowledge. This failure is fatal not
only to plaintiffs' summary judgment motion, but to their claim
under 1692c(c). Consequently, plaintiffs' motion for summary
judgment on this cause of action is denied and defendant's
cross-motion is granted.
Section 1692e(5) states that a violation of the FDCPA will be
found where there is a "threat to take any action that cannot
legally be taken or that is not intended to be taken." Plaintiffs
allege that defendant violated this section since the letter sent
to plaintiffs stated that court action may be pursued and costs
of same would be assessed to plaintiffs.
Plaintiffs offer no evidence to support their argument that
legal action was not an option for defendant or that costs
associated with same could not be added to plaintiffs' debt.*fn6
The evidence points to a contrary conclusion in light of the fact
that defendant alleges to have initiated suit against plaintiffs
in Syracuse City Court on behalf of People's Bank. See Neuren
Aff. at ¶ 4. Because plaintiffs' allegations pursuant to 1692e(5)
are unsupported and contrary to all available evidence,
plaintiffs' motion is denied and defendant's cross-motion is
granted. As such, plaintiffs' claim pursuant to this section is
Plaintiffs allege that defendant violated § 1692e(11) when
defendant failed to disclose that its communications were from a
debt collector for the purposes of collecting a debt.
The August 24, 1999, letter written by defendant and submitted
by plaintiffs appears to be the "initial" communication regarding
this debt and plaintiffs do not argue to the contrary. It
contains all the information required by statute. As such, the
Court must deny plaintiffs' motion with respect to this debt as
well. Furthermore, since the August 24, 1999, letter appears to
be the "initial" communication and contains all information
required by the statute, the Court grants defendant's
cross-motion with respect to plaintiffs' 1692e(11) claim.
Section 1692f(1) prohibits "[t]he collection of any amount . .
. unless such amount is expressly authorized by the agreement
creating the debt or permitted by law." Plaintiffs allege that
defendant violated this section as a result of its assertion that
plaintiffs would be liable for additional costs if defendant were
forced to pursue court action. As discussed above, it is
plaintiffs' burden to bring forth evidence adequate to support
plaintiffs' case. Failure to do so warrants granting summary
judgment in favor of defendant absent a showing of a material
fact in dispute by plaintiffs. Since plaintiffs fail to provide
anything aside from mere allegations to support the assertion
that defendant sought unauthorized monies,*fn7 the Court denies
plaintiffs' motion and grants defendant's cross-motion.
Willful and Wanton Conduct/Exemplary damages
There is no evidence to suggest that there was willful or
wanton conduct, at least on the part of the defendant. Since
there is no way that a trier of fact could conclude that the
defendant acted with such conduct, plaintiffs' motion is denied
and defendant's cross-motion is granted.
Defendant's motion for attorney's fees and sanctions
Defendant argues that it should be granted fees, costs and
sanctions because plaintiffs' lawsuit was instituted only to
harass it. Because there is inadequate evidence to support this
allegation, the Court denies defendant's motion for same.
Accordingly, it is hereby
ORDERED that plaintiffs' motion for summary judgment is
DENIED; and it is further
ORDERED that defendant's cross-motion for summary judgment is
GRANTED; and it is further
ORDERED that plaintiffs' complaint is DISMISSED in its
entirety; and it is further
ORDERED that defendant's motion for sanctions is DENIED.
IT IS SO ORDERED.