Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LERNER v. FORSTER

January 22, 2003

ESTHER C. LERNER, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
RONALD FORSTER AND MARK A. GARBUS, D/B/A FORSTER & GARBUS AND FIRST SELECT, INC., A SUBSIDIARY OF PROVIDIAN FINANCIAL CORPORATION, DEFENDANT(S).



The opinion of the court was delivered by: Thomas C. Platt, United States District Judge.

MEMORANDUM AND ORDER

Defendants Ronald Forster and Mark Garbus, d/b/a Forster & Garbus ("F&G"), and First Select, Inc. ("FSI") (collectively "Defendants") jointly move to dismiss the Complaint of Esther Lerner ("Lerner" or "Plaintiff"), in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(6).

For the reasons discussed infra, Defendants' motion is hereby GRANTED and Plaintiff's Complaint is dismissed in full.

BACKGROUND

Plaintiff brings this action on behalf of herself, and all others similarly situated, for damages and declaratory and injunctive relief arising from Defendants' alleged violation of 15 U.S.C. § 1692 et seq., the Fair Debt Collections Practices Act ("FDCPA"), which prohibits debt collectors from engaging in abusive, deceptive and unfair practices.

Plaintiff is a resident of the State of New York. Defendant F&G is a law firm engaged in the business of collecting debts with its principal place of business in Farmingdale, New York. Defendant FSI is a Delaware corporation and a subsidiary of Providian Financial Corporation. FSI, a creditor and the owner of Plaintiff's obligation, is located in Pleasanton, California.

On or about December 20, 2001, Plaintiff received a debt collection notice ("the Letter") from F&G at her home address. (Compl., Ex. A.) The Letter advised Plaintiff of her options should she wish to resolve her $9,363.52 debt and outlined the steps she should take if she wished to dispute the debt.

The Letter contained four (4) separate paragraphs. The first paragraph introduced F&G as attorneys engaged by FSI to make a demand for payment of Plaintiff's debt.

Plaintiff's Complaint is based in part on the language in the second paragraph of the Letter, which stated:

If you want to resolve this matter you may take one of the following actions: You may either pay the balance in full or contact my client at 1-800-280-0559 and work out an arrangement for payment that is acceptable to my client. Not withstanding partial payments made directly to our client, your entire balance is due in full. Acceptance of partial payments made directly to our client in no way nullifies their contractual right to demand the entire balance once the account is in default.

(Compl., Ex. A) (emphasis added).

The third paragraph of the Letter provided the required notice pursuant to § 1692g should the debtor wish to dispute the debt:

Federal law gives you 30 days after you receive this letter to dispute the validity of this debt or any part of it. If you do not dispute the validity of the debt, or any part of it, within that period, we will assume that the debt is valid. If you do dispute it, by mailing us a written notice to that effect on or before the 30th day following the date you receive this letter, we will obtain and mail to you verification of the debt. If, within the same period, you request in writing the name and address of the original creditor (if different from the current creditor), [we] ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.