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Ohlson v. Cadle Company

March 21, 2006

PAUL OHLSON, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY-SITUATED, PLAINTIFF,
v.
THE CADLE COMPANY, INC. AND RAY DIAMOND, DEFENDANTS.



The opinion of the court was delivered by: Hurley, District Judge

MEMORANDUM & ORDER

INTRODUCTION

Plaintiff Paul Ohlson ("Plaintiff") filed the above-captioned putative class-action against Defendants The Cadle Company ("TCC") and Ray Diamond ("Diamond") on August 12, 2004 alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq., based upon Defendants' alleged false, deceptive, and misleading practices in conjunction with attempts to collect debts, Id. § 1694e; unfair practices in an attempt to collect alleged debts, Id. § 1694f; and using a name other than the true name of the collection agency, Id. § 1694e(14).

Presently before the Court is Plaintiff's motion to amend the complaint to add Bobby D. Associates ("BDA"); Daniel C. Cadle ("Cadle"); John and Jane Does 1 through 50; Steven Vlock ("Vlock"); and Vlock and Associates ("V&A") as defendants. Also before the Court are Defendants' motion for summary judgment as to the original complaint, and Defendants' motion for sanctions against Plaintiff pursuant to Federal Rule of Civil Procedure ("Rule") 11.

BACKGROUND

The following summary of facts is taken from the Amended Complaint ("Am. Compl."), unless otherwise noted.

Defendant TCC is allegedly an Ohio corporation, maintaining a principal place of business in Newton Falls, Ohio. Defendant TCC allegedly purchases debts that are in default from various business entities. Defendant Cadle is the alleged sole shareholder and sole owner of Defendant TCC. Defendant Diamond (a.k.a. "John Doe 1") is allegedly employed as a debt collector by Defendant TCC. Defendants John and Jane Does 2 through 25 allegedly control the policies and practices of Defendant TCC.

Defendant BDA is alleged to be, upon information and belief, a partnership registered in Ohio, maintaining the same principle place of business as Defendant TCC. Defendant BDA was allegedly created by Defendants TCC, Cadle, and John and Jane Does 2 through 25. Plaintiff alleges that Defendant BDA was created for the purpose of creating the false impression that a party other than Defendant TCC was engaged in the collection of delinquent debts purchased by Defendant TCC, thereby protecting and insulating Defendant TCC from creditor claims. Defendants John and Jane Does 26 through 50 are partners in Defendant BDA.Defendant Vlock, residing in New York, is an attorney for Defendant V&A. He allegedly collects debts assigned to Defendant TCC.

Plaintiff resides in Port Washington, New York. Eric Ohlson, the brother of Plaintiff, opened a credit card account with Chase Manhattan Bank on March 1, 1980. Because of non-payment, the account eventually fell into default with an outstanding balance of $8,401.90.

In August 2001, Defendant TCC purchased the debt from Chase Manhattan and assumed full ownership of the defaulted account. Sometime after Defendant TCC purchased the debt, persons employed by Defendant TCC as debt collectors began telephoning Plaintiff, advising Plaintiff that he was personally liable for the full amount due on his brother's account. Plaintiff requested proof that he owed the debt. No proof was ever provided.

On April 5, 2004, Plaintiff received a letter on Defendant BDA letterhead, signed by Defendant Diamond, that stated, "You are hereby advised that your debt is in DEFAULT, and the Holder hereby DEMANDS that you immediately pay all outstanding amounts of the debt in full." (Am. Compl, Ex. A.) The letter continued, "If the total amount due is not paid in full as indicated above, Holder may pursue its legal remedies, which may include the filing of a lawsuit against you for the total amount, plus court costs and attorney fees, if allowed by law in your state." (Id.) Plaintiff alleges that the contents of the letter threaten illegal action.

Defendant Diamond then allegedly "compelled" a de minimis payment, though Plaintiff now claims that the statute of limitations upon which to commence the threatened legal action had elapsed because more than six years had passed between the time the debt went into default status and the time of the de minimis payment. Plaintiff alleges that Defendant Diamond submitted another threatening, misleading letter to Defendant on July 9, 2004, proposing a settlement offer.

Plaintiff has provided a copy of the returned check that is stamped "Rec'd/CADLE," to support his claim that Defendant BDA was a front for Defendant TCC's collections operation. (See id., Ex. B.) Plaintiff further alleges that the telephone numbers set forth on Defendant BDA's letterhead are actually the phone numbers for Defendant TCC.

On August 9, 2004, Plaintiff filed the original Complaint against Defendants TCC and Diamond. Defendant Vlock submitted an answer on September 15, 2004, on behalf of "Defendants,"asserting ten affirmative defenses and two counterclaims. On June 17, 2005, Defendants submitted a motion for summary judgment and a motion for Rule ...


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