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STILL v. JBC ASSOCIATES

June 3, 2005.

MARTHA STILL, Plaintiff,
v.
JBC ASSOCIATES, P.C., MARVIN BRANDON, Esq., and JOHN DOE (One through One Hundred), Defendants.



The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge

OPINION

This consolidated civil action arises out of a collection letter from and phone calls by defendants JBC Associates, P.C. ("JBC") and Marvin Brandon, Esq. to plaintiff Martha Still, whose personal check to Toys `R' Us had been dishonored for lack of funds. Still, who filed both an individual complaint and a separate class complaint, alleges that the letter and phone calls violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692e, 1692f, & 1692g, and the New Jersey Consumer Fraud Act.*fn1 This matter comes before the Court upon the following motions:
1. Defendants' motion for summary judgment;
2. Still's motion for class certification; and
3. Still's motion for partial summary judgment as to (a) liability on the class complaint and (b) Counts One and Two of her individual complaint.
For the reasons that follow, (1) defendants' motion for summary judgment will be denied; (2) Still's motion for class certification will be denied; and (3) Still's motion for partial summary judgment will be (a) granted in part as to her claim under § 1692e(10) in Count One of her individual complaint, and (b) denied in part as to liability on the class complaint and the remainder of Still's claims in Counts One and Two of her individual complaint.

  I. FACTUAL BACKGROUND

  On August 10, 2001, Still paid for merchandise at Toys `R' Us with a personal check for $137.78. Still's bank returned the check to Toys `R' Us, citing insufficient funds in Still's account.

  Defendants JBC and Brandon are debt collectors as defined by 15 U.S.C. § 1692a(6). On August 31, 2001, JBC and Brandon caused a collection letter to be printed and mailed to Still. The letter bore Brandon's stamped signature and provided, in relevant part:
Pursuant to New Jersey Statutes Annotated 2A:32A-1, you have 35 days from the receipt of this letter to pay the full amount of each check and a service charge of $25.00 per check for a total payment of $162.78. If you do not make payment within 35 days after the date this notice was received, you may be sued to recover payment. If a judgement(s) [sic] is rendered against you in court, it will include not only the original face amount of each check and the service charge for each check, but also additional liquidated damages equal to triple the amount of each check or One Hundred Dollars ($100.00) per check, whichever is greater, provided the total damages recovered do not exceed by more than Five Hundred Dollars ($500.00) the amount of each check, plus mailing costs, court costs and attorney's fees after suit has been filed.
Please remit $162.78 payable to JBC & Associates, P.C. or our client. . . .
Still alleges that similar letters "have been sent to hundreds, if not thousands, of consumers in New Jersey." (Class Compl. ¶ 25.)

  Brandon, an attorney who has been an associate of JBC's Bloomfield, New Jersey office since 2002, certified:*fn2

 
All collection letters, during the relevant time of Plaintiffs' complaint, utilized by this office for distribution in the State of New Jersey were reviewed by myself and approved prior to them being sent. These letters contain my stamped signature which is done with my approval indicating that the letters have been reviewed and approved.
  Maureen Hyams, Manager of Check Services for Toys `R' Us, certified:
 
It is the policy of Toys `R' Us, Inc. that each of our branch stores is to have, prominently displayed, at each register or in a conspicuous place by the entrance and/or exit of each store, a notice to our customers stating that in the event they write a check to pay for items purchased, and that check is returned for whatever reason, the customer will be charged a fee for these returned checks. . . . To the best of my knowledge, each store in the Toys `R' Us chain contains such a notice.
II. ANALYSIS

  Summary judgment is only appropriate where the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could find for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden of establishing the nonexistence of a "genuine issue" is on the party moving for summary judgment. Celotex, 477 U.S. at 330. Summary judgment may not be granted whether there is "a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed." See Nathanson v. Med. Coll. of Penn., 926 F.2d 1368, 1380 (3d Cir. 1991).

  A. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

  1. Count One

  Count One of Still's individual complaint claims that the collection letter's "false representation as to the provisions of N.J.S.A. 2A:32A-1" violated 15 U.S.C. §§ 1692e and 1692f.*fn3

  Citing Hyams's certification that Toys `R' Us places a conspicuous sign in each store warning customers that dishonored checks will be subject to returned check fees, defendants argue that Still entered into an implied contract with Toys `R' Us when she tendered the check. Because the $25.00 fee was thus, according to the defendants, "permissible pursuant to ...


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