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Jordan v. Tucker, Albin and Associates, Inc.

United States District Court, E.D. New York

May 19, 2017


          Joseph Mauro The Law Office of Joseph Mauro, LLC Peter Francis Barry Barry & Helwig, LLC Attorneys for Plaintiffs

          Aaron R Easley Sessions Fishman Nathan & Israel LLC Attorneys for Defendants/Cross-Claimants/Cross-Defendants Tucker Albin and Associates, Incorporated, and Kenny Oltmanns a/k/a Jim Wilson

          Margot Lee Ludlam Baxter Smith & Shapiro James F. Hagney James F. Hagney, Esq., P.C. Kevin John Stimpfl Baxter, Smith & Shapiro Attorneys for Defendants/Cross-Claimants/Cross-Defendants RMS Industries, Inc., and Reliance Mechanical Services, Inc.

          Meng Cheng Stuart S. Zisholtz Zisholtz & Zisholtz Attorneys for Defendants/Cross-Claimants/Cross-Defendants Speedy Lien, Inc. and Mark Nash


          Joan M. Azrack United States District Judge.

         This case concerns allegedly improper debt collection efforts on a debt owed by plaintiffs to defendant RMS Industries, Inc. Before the Court are motions for summary judgment by all remaining parties.[1] For the reasons below, the Court grants defendants' motion for summary judgement on plaintiffs' claims for conversion, defamation, abuse of process, and violation of New York General Business Law § 349. The Court also grants the motion by defendants Speedy Lien, Inc., and Mark Nash's for summary judgment on plaintiffs' claim under the Fair Debt Collection Practices Act (“FDCPA”). The Court denies defendants' motions for summary judgment on plaintiff's negligence claims. The Court also denies the motion by defendants Tucker Albin and Associates and Kenny Oltmanns for summary judgment on the issue of damages stemming from their admitted FDCPA violation and on Oltmanns' liability for that violation. Finally the Court denies plaintiffs' motion for summary judgment in full.

         I. BACKGROUND

         A. Factual Background

         Plaintiffs in this case are Edward and Kelly Jordan, a married couple who own a home in Islip, New York. (See Deposition of Edward Jordan at 23:18-24:23, ECF No. 118-9.) Both plaintiffs work at Second Look Incorporated, a company that “handle[s] claims for insurance companies.” (Deposition of K. Jordan 15:14-17:16, ECF No. 145-6.) Edward Jordan has been employed as a president at Second Look since approximately 1989, and in the “last few years” he also became a partial owner of the company. (Id.) Kelly Jordan had worked at Second Look since approximately 2010 and is responsible for “run[ning] the back office of the company.” (Id.)

         For ease of reference, the Court will refer to the defendants in this case by the following groupings:

• The “Tucker Albin defendants, ” consisting of Tucker Albin and Associates, Incorporated, a debt collection agency, and Kenny Oltmanns a/k/a Jim Wilson, an employee;
• The “Speedy Lien defendants, ” consisting of Speedy Lien, Inc., a company that provides services related to the filing and serving of mechanic's liens, and Mark Nash, Speedy Lien's principal; and
• The “RMS defendants, ” consisting of RMS Industries, Inc. and Reliance Mechanical Services, Inc., mechanical contracting firms.

         The facts of this case arise from damage to plaintiffs' home caused by Hurricane Sandy.[2](See Jordan Dep. 23:18-24:23.)[3] After their house was damaged, Edward Jordan filed an insurance claim and hired “Harbor Hills” as general contractor to assist with the necessary repairs. (Id. 25:17-26:4; 27:11-24.) In his affidavit, however, Jordan stated that he understood that he was “hiring a company called Axis to do the repairs” and that “Axis is apparently affiliated with Harbor Hills.” (Jordan Aff. ¶ 2, ECF No. 138-1.) The record is unclear as to the precise relationship between the two general contractors.

         Jordan testified that the general contractors had been “involved in the construction of [the] house” in the first instance, so they “knew [the] house.” (Jordan Dep. 28:4-5.) According to Peter Montana, an employee of the RMS defendants, RMS was engaged by the general contractors to provide mechanical contracting work on plaintiffs' house. (Deposition of Peter Montana 9:15-22; 10:20-15, ECF No. 118-3.) After performing that work, RMS sent the general contractors an invoice for the amount of $10, 500, dated December 20, 2012.[4] (RMS Invoice, ECF. No. 118-4; see also Montana Dep. 17:9-19:2.) The invoice was addressed to the “Axis Group.” (RMS Invoice.)

         Edward Jordan testified that the first time he was ever contacted by RMS was when he received a phone call from Montana informing him that “he had not received any money.” (Jordan Dep. 40:12-41:5.) Jordan told Montana that his “insurance company wasn't satisfied with Harbor Hills' bill and they were not issuing more payments until the bill was corrected, ” but Montana was “unsatisfied with that explanation.” (Id. at 41:2-5; 44:15-18.) Jordan described his conversations with Montana as “harassing, ” but also testified that it was “just the constant phone calls” that made it feel like harassment. (Id. at 95:17-25.)

         On February 8, 2013, Montana sent a letter to the plaintiffs noting that, “after countless attempts” to receive payment from the general contractor, RMS had not yet received payment. (RMS Letter, ECF No. 118-5.) The letter stated that Montana was “left with no choice but to contact [plaintiffs] and offer [them] the opportunity to clear up this debt before it becomes necessary to place on lien on [plaintiffs'] property.” (Id.) Montana indicated that a lien would be placed on the plaintiffs' property on February 13, 2013. (Id.)

         At some point after this letter, Montana called Mark Nash of Speedy Lien, requesting that Speedy Lien put a mechanics lien on plaintiffs' home. (Montana Dep. 25:17-26:8.) Nash instructed Montana to visit Speedy Lien's website, input the necessary information into an online form, and pay Speedy Lien. (Id.) Montana appears to have Dated this on March 27, 2013, and Speedy Lien sent Montana an email confirming his request for a $10, 500 mechanics lien on plaintiffs' home. (Speedy Lien E-Mail, ECF No. 118-6; see also Montana Dep. 23:2-21.) Montana testified that Nash had asked him whether he wanted Nash to serve the lien, to which Montana responded “yes.” (Montana Dep. 46:16-21.) Montana explained that he “assume[d] when you place a lien, the whole intention is to get it to somebody to let them know that they're liened.” (Id.) Montana believed that the lien had be served on plaintiffs. (Id. at 46:11-13; 70:20- 22.)

         Jordan testified that Montana had told him that “he would be forced to put a lien on [plaintiffs'] house” and that Jordan “asked him not to.” (Jordan Dep. 47:13-23.) At some point, Jordan and Montana “made an arrangement that [Jordan] would come down and give him $5, 000 and he would not put the lien on my house.” (Id. at 47:25-48:3.) It is not clear when this conversation took place relative to Montana's conversations with Speedy Lien.

         Jordan prepared a cashier's check payable to “RMS” for $5, 000, dated March 29, 2013. (Jordan Check, ECF. No. 118-7.) In the memo line of the check, Jordan wrote “50% of Balance Good Faith Payment.” (Id.) Jordan then delivered the check to RMS, after which Montana notified Nash that he had received the check and asked Nash to stop the filing of the lien. (Montana Dep. 32:18-23; 39:22-41:7.) In response, Nash said to Montana: “Fuck him. He owes you money.” (Id. at 41:8-11.) Nash told Montana that it was “too late” to remove the lien because it had already been processed. (Id. at 41:14-19.) Although the record contains a “Notice of Lien” dated March 29, 2013, for the mechanics lien on plaintiffs' home, Montana was not sure whether he had ever received that document. (Id. at 49:22-50:8.) The “Notice of Lien” indicates that it was served on plaintiffs, as well as on the Axis Group, but Nash testified that it was not actually served on any of those entities. (Nash Dep. 82:3-19.) Although Nash intended to serve the lien, he testified that he ultimately failed to do so because Montana told him on March 29, 2013, “not to serve a copy of the lien on the parties involved.” (Id. at 83:6-20; 85:7-8.)

         After RMS hired Speedy Lien, Montana received an unsolicited phone call from an employee of Tucker Albin whose name he did not remember. (Montana Dep. 50:9-17.) Montana testified that he assumed that Tucker Albin “got [his] name off some lien roles or some sort of customer base.” (Id.) The Tucker Albin employee told Montana that he would collect the outstanding debt in 30 days and that there would be no fee. (Id.) Montana then decided that he “had nothing to lose” and engaged Tucker Albin. (Id. at 50:18-21.)

         Since he had not been served with notice of the lien, Jordan first learned about the lien when he received a call from “Jim Wilson” at Tucker Albin.[5] (Jordan Dep. 52:15-22; 57:11-15.) Jordan told Wilson that he had already paid Montana “some money, ” to which Wilson responded in a “sarcastic” and “demeaning” manner, “Well, Ed, you paid this so you admitted that you owed it. Either you finish up paying it or I'm going to foreclose on your house.” (Id. at 57:11-22.) Jordan testified that he had “multiple” conversations with Wilson that were “always unpleasant” and in which Wilson was “mocking, ridiculing, [and] laughing, ” but that he never tried to contact Montana to ask why he had resorted to hiring a collections agency. (Id. at 57:23-58:4; 62:11-17.) Jordan testified that, at this time, he was “already stressed enough recovering from Hurricane Sandy” and that his conversations with Tucker Albin were “a breaking point.” (Id. at 62:20-24.) Kelly Jordan testified that Edward Jordan was “stressed about the whole situation”-including the phone calls from Wilson and the mechanic's lien-and that, as a result, “[h]e started smoking again, he wasn't happy we weren't getting along, he gained weight, he was constantly stressed, he was quiet. We kind of stopped talking.” (K. Jordan Dep. 61:4-25.)

         Montana testified that Tucker Albin's collection efforts were “horrendous, appalling, [and] not successful at all.” (Montana Dep. 51:18-22.) Montana explained that Tucker Albin was “harassing [plaintiffs'] entire family, including children” and that as soon as Montana learned of that, he “discharged him immediately” and then the Tucker Albin employee then “started harassing [Montana] for his collection fee for terminating him before he was able to collect his fee.” (Id. at 59:4-11.) Because the Tucker Albin defendants have conceded liability for FDCPA violations, the Court does not set out the details of Tucker Albin's collection efforts here.

         B. Procedural History

         This action commenced on December 5, 2013, when plaintiffs filed a complaint against all defendants. On September 5, 2014, plaintiffs filed the First Amended Complaint (“FAC”), which is the operative complaint in this action. (ECF No. 52.) Like the original complaint, the FAC asserts a number of causes of action against the defendants under both the FDCPA and under New York law. Those claims are as follows.

• Against Tucker Albin, plaintiffs assert causes of action for violations of the following provisions of the FDCPA: 15 U.S.C. §§ 1692c(a); 1692c(b); 1692d; 1692d(1); 1692d(6); 1692e; 1692e(1)- (5); 1692e(7)-(8); 1692e(10)-(11); 1692f; 1692f(1); 1692f(6); and 1692g(a) (FAC ¶¶ 51-52);
• Against Speedy Lien, plaintiffs assert causes of action for violations of the following provisions of the FDCPA: 15 U.S.C. §§ 1692e; 1692e(3)-(5); 1692e(9)-(11); 1692f; 1692f(1); 1692f(3); 1692f(6); and 1692g(a) (FAC ¶¶ 53-54);
• Against all defendants, plaintiffs assert a cause of action for violation of New York General Business Law Section 349 (“GBL § 349”) (FAC ¶¶ 55-59);
• Against all defendants, plaintiffs assert a cause of action for “negligent debt collection and grossly negligent debt collection” apparently premised on allegedly criminal violations of Article 29H of the New York General Business Law and sections 478, 484, and 485 of the New York Judiciary Law (FAC ¶¶ 60-66);
• Against all defendants, plaintiffs assert a cause of action for negligence per se apparently premised on allegedly criminal violations of Article 29H of the New York General Business Law and sections 478, 484, and 485 of the New York Judiciary Law (FAC ¶¶ 67-75);
• Against all defendants, plaintiffs assert a cause for conversion under New York law (FAC ¶¶ 76-79);
• Against all defendants, plaintiffs assert a cause for defamation under New York law (FAC ¶¶ 80-89); and
• Against all defendants, plaintiffs assert a cause for abuse of process under New York law ...

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