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.

Larsen v. JBC Legal Group

April 17, 2006

KIMBERLY LARSEN F/K/A KIMBERLY KAISER, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
JBC LEGAL GROUP, P.C. F/K/A JBC & ASSOCIATES, P.C., JBC LEGAL GROUP, P.C. F/K/A JBC ASSOCIATES, INC., JBC & ASSOCIATES, P.C., JBC ASSOCIATES, INC., JACK BOYAJIAN AND MARV BRANDON A/K/A MARVIN BRANDON, DEFENDANTS.



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Presently before the Court is plaintiff's motion for permission to move simultaneously for summary judgment and Rule 23(b)(3) class certification. If such motion is denied, plaintiff requests in the alternative that she be permitted to move for Rule 23(b)(2) class certification.

BACKGROUND

In a second amended complaint filed on August 5th, 2005, the plaintiff, Kimberley Larsen ("Larsen" or "plaintiff"), asserts claims under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. The plaintiff alleges that the defendants, JBC Legal Group, P.C., JBC Associates, Inc., JBC & Associates, Inc., Jack Boyajian, Marvin Brandon, and Outsource Recovery Management, Inc. (collectively, "defendants"), violated the FDCPA in their attempt to collect debts from New York consumers. (Second Amended Class Action Complaint for Violations of the Fair Debt Collection Practices Act ("Second Am. Compl.") at 4-7.) On or about October 23, 2004, defendants mailed the plaintiff a form collection letter, seeking to collect the amount of $43.87. (Id. at 5.) The letter states in relevant part:

Warning: You may be sued 30 days after the date of this notice if you do not make payment.

Dear Kimberly Kaiser: This firm represents the successors in interest of the obligation you created and have not yet satisfied when you passed the bad check(s) identified below. The check number, check date and bank account number against which the check was dishonored have been listed below. Full amount of the check(s) and a $25.00 service charge for each check listed is now due in our office. [Line detailing store, check number, check date, check amount, bank and account number, return charge, and total due]

You have thirty (30) days from receipt of this letter to pay the full amount of the check and a service charge of $20.00 per check for a total payment of $43.87. If you do not make payment, you may be sued under New York General Obligations Law Section 11-104 to recover payment. If a judgment is rendered against you in court, it may include not only the original face amount of each check and the service charge for each check, but also statutory penalties equal to twice the face amount of each check or Four Hundred Dollars ($400.00) per check, whichever is less. * * * * * (Pl.'s Second Am. Compl., Exh. A (emphasis in original).)

Based on the contents of the letter, the plaintiff's class action complaint alleges counts on behalf of two classes, "Class A" and "Class B." Class A is defined as "all consumers with New York addresses who: (a) within one year prior to the filing of this action; (b) were sent a collection letter by Defendants seeking to collect an alleged debt in a form materially identical or substantially similar to the letter sent to the Plaintiff on or about October 24, 2003, attached hereto as Exhibit A; and (c) the letter was not returned by the postal service as undelivered." (Pl.'s Second Am. Compl. ¶ 47.) The plaintiff states that the principal questions presented with respect to Class A are whether the defendants violated the FDCPA by:

(1) failing to state the amount of the alleged debt; (2) failing to state the name of the creditor to whom the debt is owed; (3) failing to comport with violation notice requirements; (4) misrepresenting the threat of a lawsuit; (5) misrepresenting the defendants' entitlement to collect statutory damages; and (6) falsely implying that there was meaningful involvement by an attorney in reviewing the account. (Pl.'s Second Am. Compl. ¶48(B).)

Class B is defined as "all consumers with New York addresses: (a) from whom any of the Defendants sought to collect moneys for dishonored checks, (b) using a collection letter materially identical or substantially similar to the letter sent to the Plaintiff on or about October 24, 2003, attached hereto as Exhibit A, which was not returned by the postal service as undelivered, and (c) the check was more than six years old at the time Defendants' letter was sent." (Pl.'s Second Am. Compl. ¶ 84.) The plaintiff states that the principal question presented by this case with respect to Class B is whether defendants violated the FDCPA by threatening to file a time-barred suit. (Id. ¶ 85(B).)

The plaintiff seeks the following relief on behalf of both Class A and Class B: (1) actual damages; (2) statutory damages as provided by § 1692k of the FDCPA; (3) attorneys' fees, litigation expenses and costs; (4) a declaration that the defendants' form letters, represented by the form sent to the plaintiff on or about October 24, 2003, violate the FDCPA; and (5) any other relief that the Court deems appropriate and just. (Pl.'s Second Am. Compl. at 13-14 and 17.) Plaintiff argues that if plaintiff prevails on both motions, then the cost of providing notice to the class would be shifted to the defendants, as part of the relief granted to plaintiff for winning on the merits of the summary judgment motion. At no point has plaintiff offered an estimate as to the cost of sending individual notice in this case, nor has plaintiff provided any information with respect to class-or subclass-numerosity.

On March 29, 2006, the parties appeared before me for a status conference.

At the conference, Ms. Karen Wachs was admitted pro hac vice, over plaintiff's objection, to represent the individual and corporate defendants in this action. The parties were given leave to fully brief the plaintiff's pending motion, and both parties elected instead to rely on their previously-filed letter submissions, submitted by plaintiff's counsel and by the individual defendants, proceeding pro se at the time. (See Order by the undersigned, dated March 29, 2006.) Plaintiff's counsel requested permission, however, to supplement plaintiff's filing with a newly-discovered copy of a stipulation between plaintiff and defendants' former counsel, Andrew Schwartz, wherein defendants' former counsel purportedly-- according to plaintiff's counsel-- stipulated to plaintiff's request to move simultaneously for class certification and summary judgment. Plaintiff was granted leave to file any supplements to her motion which she has done, together with a reply to defendants' supplemental opposition.

More specifically, plaintiff's counsel Lance A. Raphael ("Raphael") has filed a supplemental declaration in further support of plaintiff's motion, and an unsigned "Stipulation to Stay Class Certification and Permit Cross Motions for Summary Judgment on Liability and Actual Damages" ("Stipulation"), which Raphael states was drafted by and orally agreed to by defendants' former counsel, Andrew Schwartz. (Declaration of Lance A. Raphael ("Raphael Decl."), at 1-2.) The stipulation provides that the parties agree "to stay class certification and class discovery so that the parties may prepare and file ...


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.