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Ellis v. Solomon and Solomon

January 13, 2010

JANET ELLIS, PLAINTIFF-APPELLEE,
v.
SOLOMON AND SOLOMON, P.C., JULIE S. FARINA, AND DOUGLAS FISHER DEFENDANTS-APPELLANTS.



SYLLABUS BY THE COURT

Defendants-appellants Solomon and Solomon, P.C., Julie S. Farina and Douglas Fisher appeal from an order of the United States District Court for the District of Connecticut (Janet Bond Arterton, Judge) granting plaintiff-appellee Janet Ellis summary judgment on her claim under the Fair Debt Collection Practices Act ("FDCPA"). The District Court concluded that defendants-appellants violated the FDCPA by personally serving Ellis with a summons and complaint during the FDCPA thirty-day validation period, without explaining that commencement of the lawsuit did not affect the rights set forth in the validation notice. We agree, and hold that service of process during the validation period must, at a minimum, be preceded or accompanied by notice to the consumer clarifying that the lawsuit does not in any way alter the information contained in the validation notice.

AFFIRMED.

The opinion of the court was delivered by: Paul A. Crotty, District Judge

Argued: November 20, 2009

Before: CABRANES and SACK, Circuit Judges, and CROTTY, District Judge.*fn1

Defendants-appellants, the law firm Solomon and Solomon, P.C. ("Solomon"), and two of its attorneys, Julie S. Farina ("Farina") and Douglas Fisher ("Fisher") (collectively "the defendants"), appeal from a decision and judgment of the United States District Court for the District of Connecticut (Janet Bond Arterton, Judge) granting summary judgment to plaintiff-appellee Janet Ellis ("Ellis") on her claim under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA" or "the Act").

Within five days of a debt collector's initial communication with a debtor (referred to in the Act as a "consumer"), the debt collector must send the consumer a written "validation notice" setting forth, among other things, the consumer's right to dispute the debt. See 15 U.S.C. § 1692g(a). The consumer has thirty days from receipt of the validation notice to send the debt collector a notification disputing the debt. See § 1692g(a), (b). Unless the consumer disputes the debt, the debt collector is generally free to continue its collection activities and to communicate with the consumer during the thirty-day "validation period." See § 1692g(b); Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 89 (2d Cir. 2008). Collection activities and communications by the debt collector during the validation period must not, however, overshadow or be inconsistent with the disclosures the Act requires be provided in the validation notice. See § 1692g(b); Russell v. Equifax A.R.S., 74 F.3d 30, 35 (2d Cir. 1996).

After sending a validation notice, and during the validation period, the defendants caused a Connecticut State Marshall to serve Ellis with a summons and complaint. The defendants failed to inform Ellis that commencement of the lawsuit had no effect on the information contained in the validation notice. The District Court found that the service of the summons and the compliant overshadowed the validation notice in violation of the FDCPA. The defendants argue that under the controlling "least sophisticated consumer" standard, service of the summons and complaint did not overshadow the disclosures made in the validation notice. We disagree, and for the reasons that follow, we affirm the District Court.

Background

The material facts are not in dispute. Ellis owed $17,809.13 on her Citibank (South Dakota), N.A. ("Citibank") credit card. Wishing to collect, in May, 2005, Citibank referred Ellis' account to Solomon "with authorization to sue." On May 13, 2005, Solomon mailed a letter to Ellis at her home in Greenwich, Connecticut. After setting forth the amount claimed to be owed by Ellis to Citibank, the letter states:

The above named creditor has referred this account to our office for collection with a notation that all communications cease and desist. Under Federal Law, however, we must provide you with certain disclosures.

This is an attempt to collect a debt. Any information obtained will be used for that purpose. This communication is from a debt collector. Calls are randomly monitored to ensure quality service.

VALIDATION NOTICE

Unless you notify this office within thirty (30) days after receiving this notice that you dispute the validity of the debt, or any portion thereof, the debt will be assumed valid by this office. If you notify this office in writing within the thirty (30) day period that the debt, or any portion thereof is disputed, this office will obtain verification of the debt or a copy of a judgment against you and a copy of such verification will be mailed to you by this office. Upon your written request within the thirty (30) day period, this office will provide you with the name and address ...


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