United States District Court, E.D. New York
MARIA M. SOLARES, on behalf of herself and all others similarly situated, Plaintiff,
FINANCIAL RECOVERY SERVICES, INC., Defendants.
REPORT & RECOMMENDATION
R. BROWN, UNITED STATES MAGISTRATE JUDGE
the undersigned is a motion for summary judgment by defendant
Financial Recovery Services, Inc. against plaintiff Maria M.
Solares, Docket Entry (“DE”) 17, which has been
referred to the undersigned by the Honorable Sandra J.
Feuerstein for report and recommendation. Order dated Sept.
4, 2019. For the reasons stated herein, the undersigned
respectfully recommends that the defendant's motion for
summary judgment be GRANTED.
commenced this putative class action under the Fair Debt
Collection Practices Act (“FDCPA”) in Suffolk
County Supreme Court on October 1, 2018. Summons with Notice,
DE 1-2. Defendant was served on January 28, 2019. Notice of
Removal 2, DE 1. On February 19, 2019, defendant filed a
notice of removal to this Court based upon federal question
jurisdiction. Id. Plaintiff filed a complaint on
March 20, 2019. Compl., DE 7.
March 25, 2019, Judge Feuerstein issued an order to show
cause why this case should not be dismissed, in whole or in
part, based upon the Second Circuit's decisions in
Kolbasyuk v. Capital Mgmt. Servs., LP, 918 F.3d 236
(2d Cir. 2019), and Corwise v. FMS Inv. Corp., 758
Fed.Appx. 213, 214 (2d Cir. 2019). On March 26, 2019,
plaintiff filed a response to the order to show cause. On
March 27, 2019, defendant filed an answer to the complaint.
DE 11. Defendant filed a reply to plaintiff's response to
the order to show cause on April 17, 2019. DE 12. On May 2,
2019, Judge Feuerstein held an initial conference and set a
schedule for summary judgment. DE 15. On August 27, 2019,
defendant filed the instant fully briefed summary judgment
motion. DE 17.
did not file any response to defendant's statement of
material facts pursuant to Local Civil Rule 56.1
(“Defendant's 56.1 Statement”). See
generally Docket Sheet; Def.'s 56.1 Statement, DE
19. “Upon the failure to properly controvert a
movant's statement of material fact [under Local Civil
Rule 56.1], such statement “will be deemed admitted for
the purposes of the motion.” Southside Hosp. v. New
York State Nurses Ass'n, No. CV 15-2282 (JS)(GRB),
2017 WL 9485721, at *2-3 (E.D.N.Y. Jan. 26, 2017), report
and recommendation adopted, 2017 WL 837673 (E.D.N.Y.
Mar. 3, 2017), aff'd, 732 Fed.Appx. 53 (2d Cir.
2018). Whereas here, plaintiff filed no statement to
controvert the Defendant's 56.1 Statement, the
Defendant's 56.1 Statement is admitted in the entirety.
In any event, the undersigned has conducted an assiduous
review of the record, and found no genuine dispute as to any
material fact. See Holtz v. Rockefeller & Co.,
Inc., 258 F.3d 62, 73 (2d Cir. 2001) (holding that
courts “may in its discretion opt to ‘conduct an
assiduous review of the record' even where one of the
parties has failed to file such a statement [pursuant to
Local Civil Rule 56.1]”). The undisputed facts are as
held a credit card issued by Barclays Bank Delaware
(“Barclays”). Def.'s 56.1 Statement ¶ 1.
On June 2, 2017, Barclays engaged defendant to collect $6,
778.08 from plaintiff, with no additional amount owing and no
applicable interest rate having been provided from Barclays
to defendant. Id. at ¶¶ 2-3.
undisputed that plaintiff's debt was “static”
as neither Barclays nor the defendant intended on accruing
interest or fees on the credit card account. See
generally Compl. ¶¶ 20-24; Pl.'s Br. 1, DE
21; Def.'s 56.1 Statements ¶¶ 4-9. If plaintiff
paid the outstanding balance, that payment would have fully
resolved the debt. Def.'s 56.1 Statement ¶ 9.
date-June 5, 2017, July 10, 2017, August 8, 2017, and October
6, 2017- defendant sent a letter to plaintiff reflecting a
balance owed of $6, 778.08. Def.'s 56.1 Statement ¶
10. On October 27, 2017, defendant closed the credit card
account upon receipt of notice that plaintiff had filed for
bankruptcy. Id. at ¶ 13.
dispute is a letter dated October 6, 2017, which plaintiff
has attached as Exhibit A to the complaint (“Collection
Notice”). Id. at ¶ 11; see
Compl. Ex. A. The Collection Notice states “TOTAL
BALANCE DUE: 6778.08, ” and three payment coupons at
the bottom of the letter that state, “Balance due as of
October 6, 2017: $6778.08.” Def.'s 56.1 Statement
alleges four causes of action in the complaint. Compl.
¶¶ 17-28. The first cause of action asserts that
the language stating balance due “as of” a
certain date implies that the balance is not static, and
conflicts with the language of “total balance due,
” constituting a false, deceptive or misleading means
of collecting a debt under 15 U.S.C. § 1692e
(“Section 1692e” or “§ 1692e”).
Id. at ¶¶ 17-21. The second cause of
action asserts that “[d]escribing ‘Balance
Due' as being ‘as of the date of this letter'
or as of a particular date in and of itself amounts to a
false, deceptive or misleading means in connection with the
collection of a debt” under § 1692e. Id.
at ¶¶ 22-24. The third cause of action asserts that
“[The Collection Notice] amounted to a false, deceptive
or misleading means in connection with the collection of
debt” under § 1692e, without further specificity.
Id. at ¶¶ 25-26. Finally, the fourth cause
of action asserts, again without specificity, that the
defendant violated 15 U.S.C. § 1692g (“Section
1692g” or “§ 1692g”) as a result of
defendant sending the Collection Notice to plaintiff.
Id. at ¶¶ 27-28.
motion for summary judgment is decided under the oft-repeated
and well understood standard for review of such matters, as
discussed in Bartels v. Inc. Vill. of Lloyd Harbor,
97 F.Supp.3d 198, 211 (E.D.N.Y. 2015), aff'd sub
nom., Bartels v. Schwarz, 643 F. ...