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Prewitt v. Wolpoff & Abramson

March 10, 2007

SEAN S. PREWITT, PLAINTIFF,
v.
WOLPOFF & ABRAMSON, LLP, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION & ORDER

I. INTRODUCTION

In this case, Plaintiff Sean Prewitt alleges that Defendant Wolpoff and Abramson, LLP, engaged in unlawful debt collection practices in violation of the Fair Debt Collection Practices Act ("FDCPA"). Currently before this Court is Defendant's Motion to Dismiss pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, and/or for Summary Judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure.

II. BACKGROUND

A. Facts

The following facts are undisputed for purposes of the present motion, except where indicated.

Defendant is a law firm that represents institutional consumer lenders and debt purchasers (Def.'s Mem., p. 1). In December of 2003, Plaintiff opened a charge account with Kaufmann's, a department store that is owned by the May Company (Def.'s Rule 56.1 State., ¶ 1). On or about March 28, 2005, Plaintiff's delinquent charge account was referred to Defendant for collection of Plaintiff's debt of $283.17 (Id. at ¶ 4, Pl.'s Mem., p. 7).

During the six-month period between April 4, 2005 and October 3, 2005, Defendant made frequent*fn1 telephone calls to Plaintiff's residence (Def.'s Rule 56.1 State., ¶ 9). On September 14, 2005, Plaintiff contacted Defendant and advised it that due to financial constraints he could not afford to pay the debt. (Id. at ¶¶ 11-14). Plaintiff did not demand, however, that Defendant cease calling him. (Id. at ¶ 15).

During the September 14, 2004 conversation, Defendant told Plaintiff that Defendant would continue to call him "so it will stand up in court," and advised him that its attorneys would review his file for "further action." (Pl.'s Aff., ¶ 8). Defendant "accepts the possibility" that these statements were made, and does not deny that they would constitute a threat of legal action (Def.'s Mem., pp. 7-8).

B. Procedural History

Plaintiff commenced this action on October 13, 2005, by filing a Complaint in the United States District Court for the Western District of New York. The Complaint asserts that Defendant violated the FDCPA by making multiple phone calls to plaintiff with the intent to harass, and by falsely threatening to file a civil suit against plaintiff. Defendant filed an Answer on December 13, 2005. On May 2, 2006, Defendant filed a Motion for Judgment on the Pleadings and/or Summary Judgment.*fn2 This Court construes Defendant's motion as a motion for summary judgment. For the following reasons, Defendant's motion is granted in part and denied in part.

III. DISCUSSION

A. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." Id. In a case where the non-moving party bears the ultimate burden of proof at trial, the movant may satisfy its burden ...


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