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D'Allesandro v. Vision Financial Corp.

March 31, 2009

NICHOLAS D'ALLESANDRO, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
VISION FINANCIAL CORP., DEFENDANT-RESPONDENT, AND ANDREW KAPLAN, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-514-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 18, 2008

Before Judges Winkelstein and Fuentes.

Plaintiff Nicholas D'Allesandro, a debtor, appeals from the order of the Law Division granting the summary judgment motion of defendant Vision Financial Corporation (Vision Financial), a debt collection agency. Plaintiff argues that a series of correspondence sent by defendant characterizing a debt he allegedly incurred as "valid," is deceptive, misleading, and violates the Fair Debt Collection Practices Act (FDCPA or the Act). 15 U.S.C.A. §§ 1692 -- 1692p. We affirm.

We describe the following facts from the evidence presented before the motion court in support of and in opposition to defendant's summary judgment motion. According to the certification filed by Stewart Dauman, the president of Vision Financial, plaintiff allegedly owes membership fees to Retro Fitness for the privilege of using its physical fitness facility. When direct attempts at collecting this delinquent account proved unsuccessful, Retro Fitness transferred the debt to defendant for collection.

On September 13, 2006, Vision Financial sent plaintiff its first correspondence, which read in pertinent part as follows:

We have been asked to contact you by our client, 8338-Retro Fitness Lumberton, regarding your past due invoice with them. Their records indicate that your payment has not been received or processed as of the date of this correspondence, and therefore is listed with us for collection.

If you feel you have a suitable explanation for this balance remaining open, or you are unsure of its validity, you may contact us directly . . . .

Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. . . . If you notify this office in writing within 30 days of receiving this notice, this office will pull and obtain verification of the debt or obtain a copy of such judgment or verification.

According to Dauman, plaintiff did not respond to this letter. On October 16, 2006, Vision Financial sent plaintiff a second letter stating in part: "Thirty days ago we wrote you advising you of a possible outstanding debt owed to our client, 8338-Retro Fitness Lumberton. Since we have not received a response from you, we are legally permitted to pursue collecting on this account as allowed by State and Federal law."

Again, defendant alleges that plaintiff failed to respond to its letter. On November 14, 2006, twenty-eight days after the date of the second letter, Vision Financial sent plaintiff a third letter stating in part:

You have chosen to ignore all our previous notices. If there is justification on your part to disregard your obligation to 8338-Retro Fitness Lumbertion, this is your opportunity to provide us with a response. They provided you with a health club membership and they have the right to be paid for their service.

We have been hired by our client to collect on a valid debt owed to them and will continue to pursue this outstanding amount ...


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