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Patricia J. Curto v. Palisades Collection

October 23, 2011

PATRICIA J. CURTO, PLAINTIFFS,
v.
PALISADES COLLECTION, LLC. ET AL., DEFENDANTS.



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

DECISION AND ORDER

I. INTRODUCTION

On August 13, 2007, pro se plaintiff Patricia J. Curto filed a Complaint in the Western District of New York claiming violations by Defendants Palisades Collection, LLC ("Palisades"), Pressler & Pressler, LLP, Sheldon H. Pressler, Esq., Richard A. Franklin, Esq., Jennifer B. Kwak, Esq., and Lori R. Centani, Esq. (collectively, "Pressler") of the Federal Debt Collection Practices Act ("FDCPA").*fn1 Plaintiff alleges that Palisades filed successive suits against her, failed to comply with the FDCPA's validation notice requirements, and improperly served process. Presently before the Court is Defendants' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, Defendants' Motion for Summary Judgment is granted in part, and denied in part.*fn2

II. BACKGROUND

A. Facts

Plaintiff Patricia J. Curto is a resident of Orchard Park, New York. (Supplemental Amended Complaint ("Comp."), Docket No. 33, ¶ 3.) Palisades is a company engaged in the debt collection business. (Id. at ¶ 7.) Pressler is a law firm practicing in the area of debt collection, and retained by Palisades for that purpose. (Defendant Palisades Collection, LLC's Statement of Material Facts, ("Defs.' Statement"), Docket No. 61, ¶ 5.) Sheldon H. Pressler, Esq., Richard A. Franklin, Esq., Jennifer B. Kwak, Esq., and Lori R. Centani, Esq. are all attorneys presently or formerly employed by Pressler. (Docket No. 64.)

Palisades became the owner of a credit card debt allegedly incurred by Curto. (See Defs.' Statement ¶ 1.) After unsuccessfully attempting to collect the debt, Palisades initiated a court proceeding in Buffalo City Court against Curto through the law firm Forster & Garbus on July 26, 2004 ("First Collection Action"). (Id.) The first collection action was dismissed on May 26, 2005 because Curto's residence in Orchard Park was outside the court's jurisdiction. (Fish Affidavit ("Fish Aff."), Docket No. 61, Ex. 2.) Palisades, again through Forster & Garbus, filed suit in November 2005, this time in the Supreme Court, Erie County ("Second Collection Action"). (Defs.' Statement ¶ 3.) The second collection action was dismissed on April 11, 2006. (Id. at ¶ 4.) A court transcript reveals that this case was also dismissed on jurisdictional grounds. (Defendant Palisades Collection, LLC's Reply to Plaintiff's Memorandum in Opposition to Motion for Summary Judgment ("Palisades Reply"), Docket No. 70, Ex. 1.) On May 24, 2007, Palisades brought a third collection action, this time through their new counsel Pressler, and again filed suit in Buffalo City Court ("Third Collection Action"). (Defs. Statement ¶ 5.) This action was dismissed without prejudice by the Buffalo City Court on September 17, 2007 after Palisades, through their counsel failed to appear. (Affidavit of Mitchell L. Williamson ("Williamson Aff."), Docket No. 61, Ex. 4.)

Thereafter, Defendants sent Curto a collection letter on January 24, 2008 ("January Letter"). (Defs. Statement ¶ 5.) This letter contained a validation notice informing Curto of her rights and included language that is the source of several claims. On February 6, 2008, Defendants resumed legal proceedings in a fourth collection action ("Fourth Collection Action"). This final court proceeding revisited the Supreme Court, Erie County, which had previously heard Defendants' second collection action. (Williamson Aff., Ex. 6.) Curto again moved to dismiss this action. Following oral argument, the court granted Curto's motion to dismiss on October 21, after Defendants' failed to submit responding papers. (Id.)

B. Procedural History

On the basis of these events, Plaintiff filed a Complaint in the Western District of New York on August 13, 2007. (Docket No. 1.) Curto amended her complaint on November 26, 2007, (Docket No. 3.), and Defendants responded by answer, (Docket Nos. 10, 11.) Thereafter, this case was referred to the Honorable Hugh B. Scott, United States Magistrate Judge, for all non-dispositive motions and procedural matters. (Docket No. 15.) Judge Telesca granted a motion dismissing various defendants, including Phillip Marshall and the New York State Unified Court System 8th Judicial District Buffalo City, and dismissed Plaintiff's class action. (Docket No. 29.) On April 7, 2008, the court issued a consolidation order, consolidating another case brought by Plaintiff, case number 8-CV-191, with the present suit. (Docket No. 32.)

The complaint filed by Plaintiff in 8-CV-191 was deemed a supplemental amended complaint for purposes of this case, (Docket No. 33), to which Defendants filed supplemental answers on April 23 and 28, 2008, (Docket Nos. 35, 36). Plaintiff then sought Judge Scott's recusal on the basis of being denied use of this Court's conference room, as well as for granting Defendants' request to appear telephonically at a scheduling conference set for March 5, 2008. Judge Scott denied Plaintiff's motion reasoning that, although there are many plaintiffs, there are but few judicial conference rooms, and denying the usage of those rooms did not violate Curto's equal protection and due process rights. (Docket No. 52.)

Defendants filed the present Motion for Summary Judgment on November 28, 2008. (Docket Nos. 63, 64.)*fn3

III. DISCUSSION

A. Legal Standards

1. Summary Judgment Standard

Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56©. A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). An issue of ...


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