The opinion of the court was delivered by: McMAHON, District Judge.
DECISION AND ORDER DENYING
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND
GRANTING SUMMARY JUDGMENT SUA SPONTE FOR DEFENDANT
Plaintiffs Diane and Mel Kramsky bring this class action complaint
against defendant Trans-Continental Credit & Collection Corp.
("Trans-Continental") 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 its attempt to collect
an unpaid debt. Plaintiffs move for summary judgment.
Trans-Continental sent a notice to plaintiffs Diane and Mel Kramsky on
or about January 18, 2001 on behalf of its client, St. Vincent's Medical
Center, for $124.41 past due. Under the header "PLEASE READ THIS
IMPORTANT MESSAGE," the notice stated:
This past due statement reflects a balance due the
above stated creditor. This account has been referred
for collection and we must ask that you remit the
balance shown in full using the enclosed envelope. If
this bill is covered by insurance, you may submit
completed insurance forms to us along with full
payment. Reimbursement will be made directly to you by
your insurance carrier if applicable.
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 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
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 can
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 paid the debt, send the consumer a
written notice containing:
(2) the name of the creditor to whom the debt ...