United States District Court, E.D. New York
Solomon E. SHAMI, Plaintiff,
NATIONAL ENTERPRISE SYSTEMS, Defendant.
Lawrence Katz, Cedarhurst, NY, for Plaintiff.
Jonathan B. Bruno, Deborah Michelle Zawadzki, Kaufman, Borgeest & Ryan LLP, New York, NY, for Defendant.
MEMORANDUM & ORDER
ROSLYNN R. MAUSKOPF, District Judge.
Plaintiff Solomon E. Shami (" plaintiff" ) brings this putative class action against defendant National Enterprise Systems, Inc. (" defendant," " NES" ), alleging violations of the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. §§ 1692e(2), 1692f(1). Before the Court is defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant's motion is GRANTED.
The following facts are not in dispute, except where specifically noted. Plaintiff is a resident of New York who resides in Kings County and is a " consumer" within the meaning of the FDCPA. NES is an Ohio-based company regularly engaged in the collection of debts allegedly owed by consumers and is therefore a " debt collector" within the meaning of the FDCPA. On October 4, 2008, Bank of America referred plaintiff's account in the amount of $5,410.69 to NES for collection. (Def.'s 56.1 Stmt. (Doc. No. 40) ¶ 1; Taylor Aff. (Doc. No. 42) ¶ 10; Taylor Aff. Ex. 2.) On October 6, 2008, NES sent its first correspondence (" the Collection Letter" ) to plaintiff regarding that account. (Def.'s 56.1 Stmt. ¶ 2; Taylor Aff. Ex. 3.) The Collection Letter contains the following paragraph:
You can now pay by automated phone system ... or on the internet at www. nesi. paymybill. com.... Transaction fees will be charged if you use the automated phone system or the internet to make payment on this account. You are not required to use the automated phone system or the internet to make payment on this account. If you make payment on this account by check, the face amount of the check may be presented to your bank by paper draft or electronically as permitted by law.
(Def.'s 56.1 Stmt. ¶ 4; Taylor Aff. Ex. 2, 3.) The bottom of the letter also includes the following:
Please forward all payments and correspondence to:
NATIONAL ENTERPRISE SYSTEMS
29125 Solon Road
Solon OH 44139-3442
(Def.'s 56.1 Stmt. ¶ 5; Taylor Aff. Ex. 3.)
NES is party to an agreement with Internet Transaction Solutions, Inc. (" ITS" ), whereby ITS provides payment processing services, which enable consumers to make payments on accounts placed with NES via an automated telephone system at the telephone number, 800-238-0868, or via the internet atwww.nesi.paymybill.com, the phone number and website included in the Collection Letter. ( See Def.'s 56.1 Stmt. ¶¶ 10-11; Taylor Aff. ¶¶ 3-4; Stanton Aff. (Doc. No. 43) ¶¶ 3-4, Ex. 1.) NES maintains that ITS, not NES, directly charges consumers the transaction fee for use of its services, and that ITS retains the entirety of the fee, sharing no part with NES. ( See Def.'s 56.1 Stmt. ¶¶ 12-18.) Plaintiff disputes that NES collects no ...