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KRAMSKY v. TRANS-CONTINENTAL CREDIT & COLLECTION

October 11, 2001

DIANE KRAMSKY AND MEL KRAMSKY, PLAINTIFFS,
V.
TRANS-CONTINENTAL CREDIT & COLLECTION CORP., DEFENDANTS.



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 creditor.
This is an attempt to collect this debt by a debt collector and any information obtained will be used for that purpose.

(Compl. at Ex. A.)

DISCUSSION

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:

(1) the amount of debt;

(2) the name of the creditor to whom the debt ...

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