The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #23.
Currently before the Court is defendant's motion for summary judgment dismissing the complaint, which alleges violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. Dkt. #24. For the following reasons, defendant's motion is granted in part and denied in part.
By letter dated October 11, 2006, the Law Offices of Cohen & Slamowitz, LLP advised plaintiff that her Action Card account had been referred to them by Midland Funding LLC for collection of $1,951.78. Dkt. #24-6, p.2. A Summons and Complaint dated November 2, 2006 was filed with the City Court of North Tonawanda.
Dkt. #24-4, pp.35-36. Plaintiff executed a forbearance agreement and stipulation of settlement on December 19, 2006. Dkt. #24-6, p.4. The agreement provided that, in the event of default, Midland Funding LLC would afford plaintiff notice and ten days to cure such default but would then be permitted to enter judgment against plaintiff. Dkt. #24-6, p.4. By letter dated January 19, 2007, Midland Funding LLC advised that they had not received payment due and would exercise its rights and remedies under the forbearance agreement if payment was not received within ten days. Dkt. #24-6, p.7. Judgment was entered in the City Court of North Tonawanda in the amount of $1,671.43 on July 19, 2007. Dkt. #24-6, p.9.
On August 6, 2007, defendant served an Information Subpoena and Restraining Notice on Manufacturers and Traders Trust Company ("M&T"). Dkt. #24-6, p.11. By Notice dated August 8, 2007, defendant advised plaintiff that: money or property belonging to you may have been taken or held in order to satisfy judgments. State and federal laws prevent certain money or property from being taken to satisfy judgments or orders. Such money or property is said to be "exempt." The following is a partial list of money which may be exempt: Supplemental Security Income (SSI), Social Security, Public Assistance (Welfare), Alimony or Child Support, Unemployment benefits, disability benefits, workers' compensation benefits, public or private pensions, and veterans benefits. If you think that any of your money that has been taken or held is exempt, you must act promptly because the money may be applied to the judgment. If you claim that any of your money that has been taken or held is exempt, you may contact the person sending this notice.
Also, you may consult an attorney, including legal aid if you qualify. The law (New York Civil Practice Law and Rules, Article 4 and Sections Fifty-Two Hundred Thirty-Nine and Fifty-Two Hundred Forty) provides a procedure for determination of a claim of exemption.
Dkt. #24-6, p.14. By letter dated August 9, 2007, M&T Bank advised plaintiff that M&T Bank was required to comply with the legal provisions of the Restraining Notice and freeze plaintiff's account for the amount of the judgment. Dkt. #24-4, p.4.
On August 13, 2007, plaintiff provided defendant with three months of bank statements and letters verifying the source of deposits into her account. Dkt. #24-4, pp.55-66. By Notice dated August 15, 2007, defendant authorized M&T to release the restraint on plaintiff's bank account. Dkt. #24-6, p.16.
By letter dated August 17, 2007, plaintiff advised defendant that its employee, Marcos Smith violated the FDCPA by intentionally placing a freeze on my bank account even though he knew I am a senior citizen and receive social security income which is protected from seizure.
This egregious action left me unable to fill my prescription medication and placed my health at risk. Along with the emotional turmoil of watching all my checks get returned, I have been forced to pay my bank $110 in filing fees and $160 in returned check charges (not including the fees to the respective company [sic] whose checks are being returned). . . . In addition, I am frustrated because I made attempts to resolve this bill in a timely fashion and had sent in a $100 payment on this account on 8/3/07. To date, no one has found the payment and Marcos refused to research where the payment had gone. Instead, he chose this nasty and inappropriate collection action. In conversation with me, he stated that he knew that my income was not able to be touched, yet he still filed the paperwork.
In her verified complaint, plaintiff alleges:
That on or about December 12, 2006, Plaintiff received a telephone call from Marcos Smith who identified himself as an employee of the Defendant. Mr. Smith stated that Plaintiff was going to be sued if she didn't pay the subject debt and that Defendant would take her entire bank account. Plaintiff responded that her only income was her Social Security Benefits and pension benefits.
Dkt. #1, ¶ 14. Plaintiff further alleges: That between December of 2006 and August of 2007, Mr. Smith continued to call at least once per month, often more frequently. During four or five of these telephone calls, Mr. Smith advised Plaintiff that they would freeze her bank account. Each time, when Plaintiff reminded Mr. Smith that the funds in her bank account consisted of exempt Social Security and pension payments, Mr. Smith would respond by telling Plaintiff that they would freeze her account and take the funds away.
During her deposition, plaintiff testified that defendant "called me and told me they were going to . . . take the money out of my bank account and they were going to . . . take everything out that I owed them right then and there," but she did not recall when that conversation occurred. Dkt. #24-5, pp.24-25. Plaintiff subsequently denied any recollection of ...