The opinion of the court was delivered by: Mcmahon, District Judge.
DECISION AND ORDER DENYING
PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING
SUMMARY JUDGMENT SUA SPONTE
Plaintiff Lisa Kramsky brings this complaint against defendant Mark L.
Nichter for violation of the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. § 1692 et. seq. as a result of an alleged
failure to provide a proper "validation notice" in his attempt to collect
an unpaid debt. Plaintiff moves for summary judgment.
Nichter, a collection attorney, sent plaintiff a letter dated January
17, 2001, in an attempt to collect a debt of $101.70 on behalf of his
creditor client, Mt. Sinai Clinical Labs. The letter stated:
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 be
It would definitely be in your best interest 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 this 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.
Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.
See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial
exists if, based on the record as a whole, a reasonable jury could find
in favor of the non-movant. See Liberty Lobby, 477 U.S. at 248, 106
S.Ct. 2505. In making its determination, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the
non-movant. See id. at 255, 106 S.Ct. 2505. To defeat summary judgment,
the non-moving party must go beyond the pleadings and "must do more than
simply show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When opposing a motion for
summary judgment, it is not sufficient for the non-moving party to
present evidence that is conclusory or speculative, with no basis in
fact. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.
When one party makes a motion for summary judgment, the Court may
search the record and may grant summary judgment to any party. See Coach
Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548,
2554, 91 L.Ed.2d 265 (1986)). Here, the facts are undisputed and a pure
issue of law is presented. Therefore, this case is ripe for summary
judgment in someone's favor. I conclude that the right someone is
defendant, not plaintiff.
The FDCPA states that, when a debt collector solicits payment, it must
provide the consumer with a detailed validation notice.
15 U.S.C. § 1692g(a). The section provides, in relevant part:
[W]ithin five (5) days after the initial communication
with a consumer in connection with the collection of
any debt, a debt collector shall, unless the following
information is contained in the initial communication
or the consumer has ...