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NECCI v. UNIVERSAL FIDELITY CORPORATION

August 4, 2003

MARIA NECCI, PLAINTIFF, AGAINST UNIVERSAL FIDELITY CORPORATION, DEFENDANT


The opinion of the court was delivered by: Leonard Wexler, Senior District Judge

MEMORANDUM AND ORDER

This is an action commenced by Plaintiff Maria Necci ("Plaintiff") asserting that Defendant violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692. Plaintiff seeks statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A) and attorneys' fees pursuant to 15 U.S.C. § 1692(k)(a)(3). Named as defendant is Universal Fidelity Corporation ("Universal" or "Defendant"), a collection agency.

Presently before the Court is Universal's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion to dismiss is granted, [ Page 2]

dismiss is granted.

BACKGROUND

I. Factual Background

Plaintiff purchased a car and incurred a debt with Mazda American Credit. That debt became delinquent on February 12, 1998, in the amount of $1004.82. Approximately two years later, Plaintiff filed for bankruptcy relief. Plaintiff's debt was discharged on June 12, 2000.

On October 5, 2001, despite the discharge of the debt in bankruptcy, Mazda American Credit placed Plaintiff's account for collection with Universal. Universal sent a letter dated October 19, 2001, seeking to collect upon the discharged debt (the "Collection Letter"). The Collection Letter stated that Universal was authorized by the creditor to make a "special settlement offer" to Plaintiff and that Plaintiff must act within ten days to take advantage of the offer. Shortly after receipt of the Collection Letter, Plaintiff filed the Complaint in this action alleging various violations of the FDCPA.

II. The Allegations of the Complaint

Plaintiff alleges that the Collection Letter violates the FDCPA in various respects. Specifically, Universal is alleged to have violated the FDCPA by attempting to collect a debt properly scheduled for bankruptcy discharge. This attempted collection is alleged to violate 15 U.S.C, §§ 1692e(2)(A), 1692e(5), and 1692e(10). Section 1692e states in general terms, that it is unlawful for a debt collector to "use any false, deceptive or misleading representation or means in connection with the collection of any debt." 15 U.S.C, § 1692e. Section 1692e(2)(A) makes it specifically unlawful to falsely represent "the character, amount, or legal status of any debt." 15 U.S.C. § 1692e(2)(A). Section 1692e(5) makes it unlawful to threaten to "take any action that cannot legally be taken or that is not intended to be taken." 15 U.S.C. § 1692e(5). Finally, [ Page 3]

Section 1692e(10) makes it unlawful to use any "false representation or deceptive means to collect or attempt to collect any debt . . ." 15 U.S.C. § 1692e(10).

III. Universal's Motions for Dismissal and Summary Judgment

In support of its motion to dismiss, Universal argues that an action pursuant to the FDCPA does not lie, where, as here, the action alleges an effort to collect a debt discharged in bankruptcy. According to Universal, the proper forum for the violation Plaintiff alleges is a motion for contempt addressed to the bankruptcy court, Such a motion would allege a violation of the bankruptcy stay and seek an order requiring the cessation of all collection efforts. It is argued that allowing a claim under the FDCPA would permit Plaintiff to circumvent the comprehensive scheme of the bankruptcy code, which statute provides Plaintiff with any and all relief to which she is due,

Universal further argues that even if this Court finds that Plaintiff's complaint is properly filed, the Collection Letter did not violate the FDCPA. It therefore moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In support of this motion, Universal argues that Plaintiff has not satisfied the definition of a "debt" under the FDCPA. Universal further argues that even if a "debt" is held to exist, the Collection Letter contained all of the notices and legal ...


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