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May 3, 2000


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



Plaintiffs commenced the present suit on September 27, 1999, seeking damages as a result of defendant's alleged violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Specifically, plaintiffs allege six causes of action pursuant to §§ 1692c(a)(2), 1692d 1692c(c), 1692e(5), 1692e(11) and 1692f(1) of the FDCPA as well as a cause of action seeking exemplary damages arising from what plaintiffs allege to be willful and wanton conduct of defendant.


By letter dated February 19, 1998, plaintiffs notified defendant's client, People's Bank, that the Law Office of Andrew F. Capoccia, LLC, had been retained to represent them with respect to an account plaintiffs maintained with People's Bank.*fn1 The letter instructed the bank to close the referenced account, direct all communications to the Capoccia Firm and refrain from directly contacting plaintiffs regarding same.

As attorneys for People's Bank, defendant sent an August 24, 1999, letter stating that plaintiffs had an outstanding balance of $5,865.18 and that the account had been forwarded to defendant for immediate attention in an attempt to collect the debt. The letter referenced potential court action and additional costs that would be charged to plaintiffs if such action was required.*fn2 No account number is mentioned in the letter.

Presently before the Court is plaintiffs' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 and defendant's cross-motion to dismiss pursuant to Rule 12(b)(6).*fn3 Defendant also requests costs, fees and Rule 11 sanctions.

Summary Judgment

Summary Judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c). Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Irrelevant or unnecessary facts do not preclude summary judgment, even when they are in dispute. See id. The moving party bears the initial burden of establishing that there is no genuine issue of material fact to be decided. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). With respect to any issue on which the moving party does not bear the burden of proof, it may meet its burden on summary judgment by showing that there is an absence of evidence to support the nonmoving party's case. See id. at 325, 106 S.Ct. 2548. Once the movant meets this initial burden, the nonmoving party must demonstrate that there is a genuine unresolved issue for trial. See Fed.R.Civ.P. 56(e).

Although the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought, Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989), the motion will not be defeated by a nonmovant who raises merely "metaphysical doubt" concerning the facts or who only offers conjecture or surmise. See Delaware & H.R. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Indeed, the nonmoving party's opposition may not rest on mere denials of the moving party's pleading, but "must set forth specific facts showing there is a genuine issue for trial." See Fed.R.Civ.P. 56(e). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a) which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson, 477 U.S. at 250, 106 S.Ct. 2505. "It is a gratuitous cruelty to parties and their witnesses to put them through the ordeal of a trial when the outcome is foreordained." See Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983). It is with these considerations in mind that the Court addresses the parties' motions.


In order to prevail under 1692c(a)(2), plaintiffs must prove that defendant contacted him/her when it had "actual knowledge that he/she was represented by an attorney." Countryman v. Solomon & Solomon, 2000 WL 156837 (N.D.N.Y. Feb.8, 2000) (Munson, S.J.); Filsinger v. Upton, Cohen & Slamowitz, 2000 WL 198223 (N.D.N.Y. Feb.18, 2000) (Munson, S.J.); see also 15 U.S.C. § 1692c(a)(2) ("if the debt collector knows"). "The creditor's knowledge that the consumer has an attorney is not automatically imputed to the debt collector." Hubbard v. National Bond and Collection Associates, Inc., 126 B.R. 422 (D.Del. 1991), aff'd., 947 F.2d 935 (3rd Cir. 1991). Thus, an agent cannot be imputed with information that his principal failed to give him.

Plaintiffs have presented insufficient evidence to suggest that defendant possessed actual knowledge that plaintiffs were represented by counsel at the time of the communication. Plaintiffs' only proof is that their lawyers sent People's Bank a letter before defendant attempted to contact them. The record is devoid, however, of any evidence indicating that defendant was aware plaintiffs were represented and defendant specifically denies any such knowledge. Thus, since plaintiffs have failed to establish a prima facie case pursuant to 1692c(a)(2), the Court must deny their motion. Similarly, because ...

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