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Ostrander v. Dentistry By Dr. Kaplansky

March 26, 2010

ROBERT C. OSTRANDER, PLAINTIFF,
v.
DENTISTRY BY DR. KAPLANSKY, PLLC; FREID AND KLAWON, ATTORNEYS AT LAW; AND ADAM B. CONNERS, EMPLOYEE OF FREID AND KLAWON, DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

Plaintiff, proceeding pro se and in forma pauperis, brought this action against defendants Dentistry By Dr. Kaplansky, PLLC; Freid and Klawon, Attorneys at Law; and Adam B. Conners, an attorney at Freid and Klawon, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692(a), et seq. Defendants move pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief can be granted and/or for summary judgment.

BACKGROUND

As alleged in the amended complaint (Item 6), on December 5, 2007, plaintiff received a letter dated December 3, 2007 from Freid and Klawon, signed by Mr. Conners, stating as follows:

Please be advised that my office represents Dr. Kaplansky. Your account was referred to my office for collection . . . . My records indicate that you are indebted to my client in the sum of $69.20. Please forward your check to my office upon receipt of this letter in said amount by December 17, 2007 to settle this account.

If legal proceedings are commenced, in addition to the principal indicated above, there will be additional interest, court costs and disbursements which my client will seek.

It is important for you to give this matter your immediate attention. Thank you for your courtesy and cooperation. . . . .

ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THE PURPOSE OF COLLECTING THIS DEBT. (Item 6, Ex. 1).

Plaintiff responded to this letter by sending Freid and Klawon a "NOTICE OF PENDING LAWSUIT," stating:

You will have until December 17, 2007 to respond to this I will entertain your settlement agreement [sic]. Barring lack of response from you in this matter, we will proceed to the Federal Courts to resolve. Do not make the mistake of ignoring this. The ball is in your court. (Item 18, Ex. C). Attached to the notice was a draft pleading containing language identical in all material respects to the claims alleged in this action. The notice and draft pleading were sent by plaintiff on December 10, 2007, and delivered on December 11, 2007 (see USPS "Track and Confirm" notice, Item 1, Ex. P2).

Mr. Conners responded by letter dated December 14, 2007, advising plaintiff that:

I have reviewed your "Notice of Pending Lawsuit" which is clearly without merit. In any event, however, given the minimal amount in dispute, my client, Dr. Kaplansky, has directed me to close our file in this matter. . . . .

ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THE PURPOSE OF COLLECTING THIS DEBT. (Item 18, Ex. B).

Plaintiff then filed this action on December 26, 2007, alleging that Mr. Conners' initial letter of December 3, 2007 violated the following provisions of the FDCPA:

Section 1692e(11), which prohibits:

The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt ...


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