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Fainbrun v. Southwest Credit Systems

September 25, 2007

JEAN FAINBRUN, PLAINTIFF,
v.
SOUTHWEST CREDIT SYSTEMS, L.P., DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, District Judge

MEMORANDUM AND ORDER

Plaintiff Jean Fainbrun ("Plaintiff"), an individual consumer and alleged debtor, brings this action under the Fair Debt Collection Practices Act (the "FDCPA"), 15 U.S.C. §§ 1692 et seq., against Southwest Credit Systems, L.P. ("Defendant" or "Southwest"), a debt collection agency located in Texas. Plaintiff alleges that Defendant violated 15 U.S.C. § 1692(e), which prohibits debt collectors from using any "false, deceptive, or misleading representation or means in connection with the collection of any debt."

Presently before the court is Plaintiff's motion for summary judgment and Defendant's cross-motion for summary judgment, both brought pursuant to FED. R. CIV. P. 56. Also before the court is Plaintiff's separate motion for class certification pursuant to FED. R. CIV. P. 23.

For the reasons set forth below, summary judgment is granted in favor of Plaintiff. Defendant's summary judgment request is denied. Furthermore, Plaintiff's motion for class certification is granted, as described below.

I. Background

The facts in this case are few. At some point prior to the events central to this action, Plaintiff apparently defaulted on an account she held with T-Mobile. T-Mobile referred Plaintiff's account to Southwest for collection on or about February 11, 2005. On March 16, 2005, Southwest issued a debt collection letter to Plaintiff (the "Letter"). The Letter states, in pertinent part,

Our records indicate that this debt remains unpaid. This shall serve as notification that unless you contact this office immediately to establish arrangements for payment, we will be required to proceed with collection efforts on your account. We have previously informed you that Southwest Credit has the right to report information regarding your account to all major credit reporting agencies. Late payments, missed payments, or other defaults may be reflected on your credit report.

Defendant confirms that 20,000 people received the same form letter between September 14, 2004 and September 14, 2005. (See Def.'s Resp. to Pl.'s 1st Req. for Interrogatories ¶ 4.)

Plaintiff contends that the statement "Late payments, missed payments, or other defaults may be reflected on your credit report" is false and violates 15 U.S.C. § 1692(e). Defendant does not dispute that late or missed payments or other defaults are not reported to credit bureaus after the initial reporting of a defaulted account.*fn1 (See Pl.'s 56.1 ¶ 7; Hurt Dep. 8:10-10:19.) Instead, Defendant asserts in its defense that Plaintiff's account was reported to Equifax, Experian, and TransUnion on April 1, 2005, and subsequent updates were submitted on April 25, 2005, May 26, 2005, June 17, 2005, and July 11, 2005. (Hurt Aff. ¶ 6.) According to Defendant, this "continuous act of reporting plaintiff's debt, on a monthly basis to the credit reporting agencies[,] show that the defendant was diligent in reporting all activity on plaintiff's account." (Def.'s Mem. 10.) Defendant thus contends that nothing in its Letter violates 15 U.S.C. § 1692(e).

Plaintiff now seeks summary judgment in its favor. In response, Defendant has filed a cross-motion for summary judgment. Plaintiff, furthermore, seeks class certification.

II. Discussion

A. Summary Judgment Standard

Summary judgment is appropriate when "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 a judgment as a matter of law." FED. R. CIV. P. 56(c). The court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. - - -, 127 S.Ct. 1769, 1776, 167 L.Ed. 2d 686 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id. at 1776.

A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the nonmoving party may not rely on "[c]onclusory allegations, conjecture, and speculation," Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), and must affirmatively "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of ...


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