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Alton Bowens v. Lr Credit 10

December 5, 2011

ALTON BOWENS, PLAINTIFF,
v.
LR CREDIT 10, 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 November 3, 2010, pro se plaintiff Alton Bowens filed an Amended Complaint in the Western District of New York claiming violations by Defendants LR Credit 10, LLC, Kerry Lutz, Esq., Mel S. Harris, Esq., Mel S. Harris and Associates, LLC (collectively the "Collection Defendants"), as well as Thomas Holland and We Serve It For You Process Serving Agency (collectively the "Process Defendants"). Plaintiff alleges that defendants improperly served process on him at an address at which he did not reside in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1962 et seq., and New York state law. Presently before this Court is Collection Defendants' Motion for Summary Judgment, as well as Process Defendants' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, Defendants' motions are granted.*fn1

II. BACKGROUND

A. Facts

Plaintiff Alton Bowens is a resident of Buffalo, New York. (Amended Complaint ("Comp."), Docket No. 78, ¶ 2.) On December 16, 2005 Defendant LR Credit 10 became the owner of a Sears charge card debt incurred by Bowens. (Statement of Material Facts in Accordance with Rule 56 of the Federal Rules of Civil Procedure ("Stmt."), Docket No. 85, ¶¶ 2, 3.) LR Credit 10 assigned the debt to Mel S. Harris and Associates ("Mel Harris") for collection. (Id. ¶ 4.) Mel Harris, in turn, forwarded a summons and complaint to We Serve It For You Process Serving Agency ("We Serve"). (Id. ¶ 11.) The summons and complaint identified Bowens' address as P.O. Box 229, Buffalo, New York, the only address that accompanied the account LR Credit 10 had purchased. (Id.) The Collection Defendants had previously attempted to contact Bowens at that address by mail. (Id. ¶¶ 8, 9.) The Collection Defendants did contact Plaintiff via a phone number listed under the account. (Id. ¶ 17.)

We Serve consulted the United States Postal Service as well as an Internet search service provided by Lexis Nexis called Accurint to determine that Plaintiff's residence was at 70 Northampton Street, Buffalo, N.Y. (Statement of Material Facts Per Local Rule 56.1 on Behalf of Defendants We Service It For You Process Serving Agency and Thomas Holland ("Holland Stmt."), Docket No. 89, ¶ 5.) In fact, Plaintiff did not reside there, but actually lived at 36 Janet Street, Buffalo, New York. (Comp. ¶ 17.) The Janet Street address was also the one listed in the local directory alongside the phone number at which Collection Defendants had contacted Plaintiff. (Id.)

We Serve, through Defendant Holland, attempted service at the Northampton address on March 27, 28, and 29, 2006. (Holland Stmt. ¶ 6.) The Process Defendants assert that they again attempted to deliver the summons and complaint on April 1, 2006, this time speaking with a neighbor who confirmed that Bowens lived in an apartment at that address. (Id. ¶¶ 7, 8.) Bowens disputes whether Process Defendants ever spoke with a neighbor. (Response to Notice of Motion to Dismiss, Docket No. 6, Ex. C). Bowens also disputes whether Process Defendants mailed a copy of the summons and complaint to that address, and whether they taped process to Bowens' incorrect residence. (See Holland Stmt. ¶ 8.)

The Collection Defendants mailed an additional copy of the summons and complaint on April 20, 2006. Thereafter, the Collection Defendants sought, and obtained, a judgment on Bowens' property in the City Court of Buffalo on June 2, 2006. (Stmt. ¶ 20.) Collection Defendants continued trying to contact Bowens at the Northampton address, and proceeded to collect on the default judgment by contacting various lending institutions. This resulted in the attachment of a bank account Bowens held with Citizens Bank. (Comp. ¶¶ 25, 26.) The restraint allegedly interfered with Bowens' distribution and marketing business, which made regular use of that account. (Id.)

On March 15, 2007, Bowens initiated an Order to Show Cause proceeding to vacate the default judgment. (Id. ¶ 27.) Bowens was granted relief by court order, and the Collection Defendants authorized a release on Bowen's bank account.

Bowens now brings suit to recover statutory and punitive damages arising out of Defendants' insufficient service of process and interference with Bowens' distribution and marketing business.

B. Procedural History

Plaintiff filed a Complaint in the Supreme Court of the State of New York, County of Erie on April 20, 2007. (Docket No. 1.) Collection Defendants removed that action to the Western District of New York on July 16, 2007. (Id.) Collection Defendants moved to dismiss Plaintiff's Complaint on August 20, 2007. This Court denied Defendants' motion on March 3, 2008. (Docket No. 13.) Bowens then challenged referral of this matter to mediation. This Court denied that motion on July 30, 2008. (Docket No. 22.) After a series of discovery-related motions, Bowens moved to amend his original complaint on April 5, 2010. (Docket No. 59.) Because Bowens neglected to include an amended complaint, The Honorable Leslie G. Foschio, United States Magistrate Judge, denied Bowens' motion without prejudice. (Docket No. 65.) Judge Foschio thereafter granted the Plaintiff's second motion to amend the complaint on October 13, 2010, and Bowens filed his amended complaint on November 3, 2010. (Docket Nos. 66,74.) The Process Defendants filed their instant Motion for Summary Judgment on April 29, 2011 (Docket No. 83), and Collection Defendants filed their own Motion for Summary Judgment on May 2, 2011 (Docket No. 90). Briefing closed on July 15, 2011, at which time this Court time took the matter under advisement without oral argument.

III. DISCUSSION

A. Summary Judgment ...


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