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Van Gorden v. Sharinn & Lipshie, P.C.

United States District Court, E.D. New York

January 18, 2014

YVETTE VAN GORDEN, Plaintiff,
v.
SHARINN & LIPSHIE, P.C., Defendant

For Plaintiff: Jeanne Lahiff, Esq., Of Counsel, Weisberg & Meyers LLC, Phoenix, AZ.

For Defendant: Amanda J. Moreno, Esq., Of Counsel, Sharinn & Lipshie, P.C., Uniondale, NY.

OPINION

Page 262

SHORT ORDER

ARTHUR D. SPATT, United States District Judge.

The instant action is based on a debt collection letter sent from the Defendant Sharinn & Lipshie, P.C. (the " Defendant" ) to the Plaintiff Yvette Van Gorden (the " Plaintiff" ) on July 11, 2011, which the Plaintiff alleges violated the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § 1692g(a)(4).

In particular, the Plaintiff obtained a Walmart credit card at an unspecified date for personal, family, and/or household purposes. According to the Complaint, at some time thereafter, a debt in the amount of $1,065.87 was owed to Walmart from this personal credit card. In connection with this debt, on July 27, 2011, the Defendant sent the Plaintiff an initial written correspondence. The letter stated, in relevant part, as follows:

If you notify us in writing within 30 days after receipt of this notice that this debt, or any portion of this debt, is disputed, or that you request verification of this debt, including the name and address of the original creditor, we will obtain verification of the debt, or a copy of any judgment that has been entered against you, along with the name and address of the original creditor and mail the verification to you.

(Def's 56.1 Statement, at ¶ 5.)

The Complaint alleges that in making these statements, the Defendant failed to convey to the Plaintiff that a request for validation of the debt and a request for the name and address of the original creditor were separate and distinct demands. Thus, the Plaintiff argues that this correspondence led her to believe that the Defendant was required to provide her with both verification of the debt and the name and address of the original creditor, were she to make a request for one or the other. Therefore, the Plaintiff contends that a consumer might inadvertently waive her statutory right to receive the name and address of the original creditor if she were to assume that a request to verify the debt would necessarily also include an implicit request for the name and address of the original creditor.

On November 21, 2011, the Plaintiff brought the instant action against the Defendant. She alleges that the Defendant violated a provision of the FDCPA, 15 U.S.C. § 1692g(a)(4), by failing to convey to the Plaintiff that to require the Defendant to send verification of the alleged debt or a copy of the judgment, the Plaintiff must solely dispute the alleged debt, or

Page 263

a portion thereof. In addition, the Plaintiff claims that the Defendant violated another subsection of the FDCPA, 15 U.S.C. § 1692g(a)(5), by failing to convey to the Plaintiff that she was entitled to request in writing the name and address of the original creditor without also having to dispute the alleged debt, or a portion thereof. The Plaintiff seeks statutory damages pursuant to 15 U.S.C. § 1692k, or, in the alternative, actual damages, in addition to attorneys' fees and costs.

On February 9, 2012, the Defendant filed its answer to the Plaintiff's complaint. After a conference with this Court, the Plaintiff filed a motion for summary judgment on October ...


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