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Solares v. Financial Recovery Services, Inc.

United States District Court, E.D. New York

December 3, 2019

MARIA M. SOLARES, on behalf of herself and all others similarly situated, Plaintiff,
v.
FINANCIAL RECOVERY SERVICES, INC., Defendants.

          REPORT & RECOMMENDATION

          GARY R. BROWN, UNITED STATES MAGISTRATE JUDGE

         Before 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.

         PROCEDURAL BACKGROUND

         Plaintiff 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.

         On 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.

         FACTUAL BACKGROUND

         Plaintiff 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 follows:

         Plaintiff 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.

         It is 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.

         On each 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.

         At 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 ¶ 12.

         Plaintiff 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.

         LEGAL STANDARD

         This 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. ...


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