Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hallmark v. Cohen & Slamowitz

United States District Court, W.D. New York

October 8, 2014

MICHAEL HALLMARK, on behalf of himself and all others similarly situated, and Plaintiff,
v.
COHEN & SLAMOWITZ, MIDLAND FUNDING LLC, Defendants.

BROMBERG LAW OFFICE, P.C., BRIAN L. BROMBERG, JONATHAN R. MILLER, of Counsel, New York, New York, Attorneys for Plaintiff.

LAW OFFICES OF KENNETH HILLER, PPLC, SETH ANDREWS, of Counsel, Amherst, New York, Attorneys for Plaintiff.

CONNELL FOLEY LLP, ANDREW C. SAYLES, of Counsel, Roseland, New Jersey, Attorneys for Defendant Cohen & Slamowitz, LLP.

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LP, THOMAS A. LEGHORN, of Counsel, New York, New York, Attorneys for Defendant Midland Funding, LLC.

DECISION AND ORDER

LESLIE G. FOSCHIO, Magistrate Judge.

JURISDICTION

This action was referred to the undersigned by Hon. William M. Skretny on November 10, 2011 for all non-dispositive pretrial matters (Doc. No. 9). It is presently before the court on Defendant Cohen & Slamowitz, LLP's motion for reconsideration and a protective order, filed April 30, 2014 (Doc. No. 190) ("Defendant's motion").

BACKGROUND and FACTS[1]

This class action asserting Defendants' violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), was initiated on July 2, 2012 by the filing of Plaintiff's Amended Complaint (Doc. No. 28). Specifically, Plaintiff alleges C&S violated FDCPA Section 1692e(2)(A) by demanding, in a letter to Plaintiff, payment of a $140 court filing fee in connection with Buffalo City Court collection actions instituted against Plaintiff without actually having paid such filing fee at the time C&S's demand letter was sent, between March 2011 and March 2012, to approximately 38, 000 debtors residing in New York State, for payment of the debt and such filing fees. Plaintiff also alleges Defendants violated FDCPA Sections 1692e, 1692e(2)(A), e(5), e(10), (f) and (f)(1) by making deceptive and misleading demands. Plaintiff's class action was certified by Chief District Judge Skretny on September 16, 2013 (Doc. No. 110). By order dated January 8, 2014, Judge Skretny denied Defendants' motion to decertify the class (Doc. No. 177).

On April 12, 2013, Plaintiff moved to compel responses to Plaintiff's First Set of Interrogatories, Document Requests and Requests to Admit (Doc. Nos. 71) ("Plaintiff's motion to compel"). Plaintiff's discovery requests[2] were directed to C&S's net worth specifically requesting C&S financial information such as: (1) C&S's real property ownership (Int. No. 19), (2) financial assets including bank deposits, investment accounts, retirement accounts, securities, vehicles, furnishings, fixtures, equipment, computers and accounts receivable (Int. No. 20), (3) debt whether individually or jointly owned with co-Defendant Midland (Int. No. 22), (4) C&S's tax returns and related schedules for 2007 through 2013 (Doc. Request No. 20), (5) accounting statements regarding C&S's assets and liabilities for 2007 to 2013 (Doc. Request No. 21), (6) applications for credit and related financial statements (Doc. Request No. 22), (7) asset and financial statements provided to investors, creditors, auditors, accountants, and agencies (Doc. Request No. 23), (8) any litigation documents reflecting C&S's net worth (Doc. Request No. 26), (9) all relevant corporate documents such as shareholder and buy-sell agreements (Doc. Request No. 28), (10) documents describing C&S's accounts receivables and payables, budget forecasts and hourly rates (Doc. Request Nos. 30-31), (11) annual financial statements and tax returns for each segment of C&S's business (Doc. Request No. 34), (12) discretionary expenses (Doc. Request No. 35), (13) the fair market value of any intangible assets (Doc. Request No. 36), work in process, inventory, and any off-the-books assets or liabilities (Doc. Request Nos. 37-40), (14) compensation and employee benefit plans, balance sheets, loan applications, income and profit and loss statements for the past three years, bank statements and mortgage, pledge or security agreements (Doc. Request Nos. 41-42, 45-49) and (15) C&S's transfer of any identified assets, the circumstances regarding such transfer and any consideration received (Int. No. 24). Defendant's response included the general objection that Plaintiff's requests were (1) premature given that at the time no class had then been certified and (2) irrelevant as C&S's net worth was less than $1, 000 because C&S had no retained earnings or real property (C&S Answer to Plaintiff's Int. No. 30, Doc. No. 73-1 at 17). Plaintiff asserts Plaintiff is entitled to discovery of such requested information because in an FDCPA class action plaintiffs' recovery is limited by 15 U.S.C. § 1692(a)(2)(B) to the lesser of $500, 000 or 1% of a defendant's net worth and Plaintiff must be prepared to challenge Defendant's assertion of "low net worth." Plaintiff's Memorandum of Law, Doc. No. 72, at 3 and n. 4 (citing cases).

Defendants' motion is supported by Defendant Cohen & Slamowitz, LLP's Memorandum Of Law In Support Of Motion For Reconsideration Or For A Protective Order (Doc. No. 190-1) ("C&S's Memorandum of Law"), Affidavit Of Gregory Giugliano, CPA (Doc. No. 190-2) ("Giugliano Affidavit") and Declaration Of Andrew C. Sayles, Esq. In Support Of Motion For Reconsideration And For Protective Order (Doc. No. 190-3) ("Sayles Declaration I"). In further support of Defendant's motion, on May 9, 2014, C&S submitted, for filing under seal, the Declaration Of Andrew C. Sayles, Esq., submitting financial information consisting of C&S's financial statement for 2011-2012 ("Sayles Declaration II") in further support of Defendant's motion, attaching Exhibits A - D ("Sayles Declaration II Exh(s). ___") ("Defendant's Sealing Request"). By order of the court, on July 23, 2014 (Doc. No. 217), this document was filed under seal (Doc. No. 218).

On May 27, 2014, Plaintiff filed, in redacted form, Plaintiff's Memorandum of Law in Opposition to Defendant Cohen & Slamowitz, LLP's Motion for Reconsideration or, in the Alternative, for a Protective Order (Doc. No. 201) ("Plaintiff's Memorandum") (Plaintiffs also submitted to the court an unredacted form of Plaintiff's Memorandum) along with the Declaration of Plaintiff's Attorney Brian L. Bromberg in Opposition to Cohen & Slamowitz, LLP's Motion for Reconsideration or, in the Alternative, for a Protective Order (Doc. No. 202) ("Bromberg Declaration I") together with exhibits A - C (Doc. No. 202-1-3 ("Bromberg Declaration I Exh(s). ___"). By papers, also filed May 27, 2014, Plaintiffs moved to file under seal the unredacted version of Plaintiff's Memorandum and Bromberg Declaration Exhs. B & C (Doc. No. 203) ("Plaintiff's Motion to Seal"). Plaintiff's Motion to Seal requests that the aforereferenced Bromberg Declaration Exhibits B & C be filed under seal because C&S has submitted such documents, marked Confidential, to the court in support of Defendant's motion and such designation requires that documents be filed under seal when submitted to the court in accordance with the Stipulation of Confidentiality ¶ 10 (Doc. No. 193) and Plaintiff's opposition to Defendant's motion requires reference to such documents. Plaintiff's Motion to Seal at 2. Plaintiff's motion was granted on July 23, 2013 (Doc. No. 219). An unredacted form of the Bromberg Declaration and Bromberg Declaration Exhs. A - C) filed July 23, 2014 (Doc. No. 221) was submitted by Plaintiff.

On June 2, 2014, Defendant C&S filed a Reply Memorandum Of Law In Further Support Of Defendant Cohen & Slamowitz, LLP's Motion For Reconsideration Or For A Protective Order (Doc. No. 207) ("Defendant's Reply Memorandum").

On July 23, 2014, Plaintiff filed Plaintiff's Memorandum of Law in Opposition to Defendant Cohen & Slamowitz, LLP's Motion for Reconsideration or, in the Alternative, for a Protective Order (Doc. No. 220) ("Plaintiff's Memorandum"), along with the Declaration of Plaintiff's Attorney Brian L. Bromberg in Opposition to Cohen & Slamowitz, LLP's Motion for Reconsideration or, In the Alternative for a Protective Order (Doc. No. 221) ("Bromberg Declaration II") attaching Exhibits A - C (Bromberg Declaration II Exhs. A-C"). On August 6, 2014, Plaintiff filed Plaintiff's Supplemental Memorandum of Law in Opposition to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.