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Stair v. Thomas & Cook

February 7, 2008

WILLIAM F. STAIR, PLAINTIFF,
v.
THOMAS & COOK AND RODMAN L. COOK, DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

[relates to Docket Item 14]

OPINION

In this case, the Court is called upon to determine whether a debt collection letter sent by Defendants to Plaintiff violated certain notice requirements of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq. Defendants have moved to dismiss and/or for summary judgment [Docket Item 14], arguing that the letter does not violate the FDCPA. For the reasons explained below, the Court finds that the letter violates the FDCPA's notice provisions and will thus deny Defendants' motion.

In addition, because it appears that Plaintiff is entitled to judgment as a matter of law on the issue of liability, but Plaintiff did not file a cross-motion for summary judgment, the Court will afford Defendants the opportunity to present evidence to oppose the entry of partial summary judgment against them.

I. BACKGROUND

The individually named defendant in this case, Rodman L. Cook, Esq., is an attorney employed by Defendant business organization Thomas & Cook. (Compl. ¶ 3.) According to Plaintiff, the defendants engage regularly in the practice of consumer debt collection, and one of Defendants' clients is Underwood Memorial Hospital ("UMH"). (Id. at ¶¶ 6-7.) Mr. Cook was retained by UMH to collect a debt in the amount of $2,557.00 that Mr. Stair allegedly owed to UMH. (Cook Aff. ¶ 2.) Mr. Cook's first communication with Mr. Stair was by a letter printed on Thomas & Cook letterhead and dated July 13, 2006 (the "July 2006 letter"). (Id. at ¶ 3; Ex. A.) The body of the letter contains four paragraphs which read as follows:

The above matter has been turned over to us for collection. There is due upon this account the sum of $2,557.00.

Before instituting suit upon this debt, we thought it advisable to offer you this opportunity of making payment without coercion. Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt, or any portion thereof, this office will assume the debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will: obtain verification of the debt and mail you a copy of such verification. If you request this office in writing within 30 days after receiving this notice, this office will: provide you with the name and address of the original creditor, if different from the current creditor. This is an attempt to collect a debt. Any information will be used for that purpose.

If you would save yourself the annoyance and expense of legal action, kindly send us the amount due.

Let us hear from you before July 27, 2006. (Cook Aff. Ex. A.) On August 3, 2006, Mr. Cook filed a lawsuit in the Superior Court of New Jersey against Mr. Stair on behalf of UMH in order to collect the debt. (Cook Aff. Ex. C.) Plaintiff received the summons and complaint for the Superior Court lawsuit on August 18, 2006. (Compl. ¶ 8.)

On September 20, 2006, Plaintiff, through his appointed power of attorney Dean Smith, filed his Complaint in this action, alleging on behalf of himself and similarly situated recipients of comparable correspondence from Defendants that the "pleadings/communication" sent by Defendants violated various provisions of the FDCPA.*fn1 (Compl. ¶¶ 9-13.) Defendants now move to dismiss Plaintiff's Complaint and/or for summary judgment on Plaintiff's claims.

II. DISCUSSION

A. Standard of Review

The Court first addresses the standard of review that governs its analysis of Defendants' motion. Defendants have moved for dismissal pursuant to F. R. Civ. P. 12(b)(6) and/or for summary judgment pursuant to F. R. Civ. P. 56. (Defs.' Br. 1.) Because Defendants go "beyond the face of the pleadings" in their motion, Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997), and because Plaintiff "stipulates [that] it is appropriate for the Court to rule in the context of summary judgment under Federal Rule ...


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