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Stonehart v. Rosenthal

August 13, 2001


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.


Sarah Stonehart has sued Allen Rosenthal, Newman & Newman and Affiliated Credit Adjustors, Inc. ("ACA"),*fn1 alleging violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and New York's Fair Credit Reporting Act ("NYFCRA"), N.Y. Gen. Bus. L. § 380 et seq. Defendants now move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(c) and/or for summary judgment pursuant to Rule 56.*fn2 Plaintiff cross-moves for summary judgment. For the reasons stated below, defendants' motion for summary judgment is granted and plaintiff's cross-motion for summary judgment is denied.


A motion for summary judgment may be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotation marks and citations omitted).

In determining whether a genuine issue of material fact exists, a court must "resolve all ambiguities and draw all reasonable inferences against the moving party." Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001). The moving party bears the initial burden of establishing the absence of any genuine issue of material fact. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). Once such a showing is made, the non-movant must point to specific facts showing that a genuine issue of fact exists, necessitating a trial. See id. However, "[s]tatements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). When a court is presented with cross-motions for summary judgment, each movant has the burden of presenting evidence to support its motion. See Barhold v. Rodriguez, 863 F.2d 233, 236 (2d Cir. 1988).


The following facts are taken from the Complaint, the parties' Rule 56.1 statements and relevant declarations and affidavits. Unless otherwise indicated, the facts are undisputed.

In 1999, Dr. John Lhota referred a debt, owed to him by Stonehart for dental services, to the Credit Rating Bureau ("CRB"), a debt collection agency located in Southhampton, New York. See 7/5/01 Declaration of Sarah Stonehart ("Stonehart Decl.") ¶¶ 4, 12; Defendants' Statement of Material Facts Pursuant to Local Rule 56.1(a) ("Def. 56.1") ¶ 1. Prior to Dr. Lhota's turning over the debt to CRB for collection, Stonehart disputed the amount she owed to Lhota by sending him numerous letters over a period of nearly two years. See id. ¶ 11; see also Letters to Dr. Lhota, Ex. 1 to Stonehart Decl. ("Letters to Dr. Lhota"), at 1-25.*fn3

On October 29, 1999, CRB sent Stonehart a collection letter stating that she owed Dr. Lhota $2,338.40. See 10/29/99 CRB Collection Letter, Ex. 2 to Stonehart Decl., at 1. On November 19, 1999, Stonehart sent CRB a letter disputing the $2,338.40 debt, claiming that she owed Dr. Lhota no more than $719.20. See 11/19/99 Stonehart Letter to CRB, Ex. 3 to Stonehart Decl., at 1. On November 30, 1999, CRB apparently agreed to accept $719.20 in full satisfaction of the claim which Stonehart agreed to pay upon receipt of a corrected statement of account. See Stonehart Decl. ¶ 15. Stonehart heard nothing further from CRB and never received a corrected statement. See id. ¶ 17.

According to the defendants, CRB turned over Stonehart's debt in the amount of $2,338.00 to ACA, another debt collection agency. See Def. 56.1 ¶ 2. ACA claims that it then sent a collection letter to Stonehart, to which it received no reply.*fn4 See id. ¶ 3. Stonehart disputes this, claiming that the debt was never turned over to ACA and that she never received any communication from ACA.*fn5 See Stonehart Decl. ¶ 20; Plaintiff's Statement Pursuant to Local Rule 56.1 ("Pl. 56.1") ¶¶ 1, 2. Defendants claim that ACA then turned over Stonehart's account to Rosenthal, who is a lawyer and a debt collector. *fn6 See Rosenthal Aff. ¶¶ 2, 7. Stonehart insists that the claim was referred to Rosenthal by CRB, rather than by ACA.*fn7 See Pl. 56.1 ¶ 1.

On February 8, 2000, Rosenthal sent Stonehart a collection letter for $2,338.40. See Stonehart Decl. ¶ 21; Rosenthal Aff. ¶ 7. Rosenthal also requested that ACA verify Stonehart's current address for service of process in light of her failure to respond to ACA's collection letter. See Rosenthal Aff. ¶ 7. On February 17, 2000, ACA obtained a credit report from Experian, a consumer reporting agency to which it subscribed.*fn8 See id.

On February 22, 2000, Stonehart responded to Rosenthal's collection letter, disputing the debt and advising Rosenthal that she would only pay $719.20. See Stonehart Decl. ¶¶ 22, 23. Stonehart also demanded that Rosenthal stop contacting her until he provided her with a corrected Account Statement. See id. ¶ 23. In response to Stonehart's demand, Rosenthal verified the debt with Dr. Lhota and, on July 12, 2000, sent Stonehart an Account Statement, which he received from Dr. Lhota. See Rosenthal Aff. ¶ 8. This statement reflected the amount of debt as $2,338.40. See Account Statement, Ex. G to Rosenthal Aff., at 1.

Meanwhile, in March of 2000, Stonehart applied to Providian National Bank ("Providian") for a credit card. See Stonehart Decl. ¶ 30. Providian rejected Stonehart's application because its review of Stonehart's file revealed an inquiry for collection purposes. See id. Stonehart requested her consumer credit report from Experian and discovered that on February 17, 2000, ACA (under the name Newman & Newman) made an inquiry and received Stonehart's credit report. See Experian Report, Ex. I to Rosenthal Aff., at 1. At no time had Stonehart authorized Rosenthal or ACA to obtain her credit report. See Stonehart Decl. ¶ 35.

Stonehart claims that defendants' actions interfered with her efforts to obtain a credit card and inflicted emotional distress. See id. ¶¶ 41, 42. Prior to April 2000, Stonehart had never been denied credit and her credit history was "spotless." Id. ¶ 31. As a result of Providian's denial, Stonehart claims that she suffered actual damage because her credit history was tainted and she was unable to obtain low interest credit. See id. ¶ 32.

On January 19, 2001, Stonehart filed a Complaint against Rosenthal and ACA for violations of the FCRA, the FDCPA, and the NYFCRA, seeking actual, statutory and punitive damages, costs, and attorney's fees. See Complaint ΒΆ 2. Defendants ...

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