Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Apostolou v. Mann Bracken

May 1, 2009

MARK A. APOSTOLOU, ET AL. PLAINTIFFS,
v.
MANN BRACKEN, LLC, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Peter G. Sheridan, U.S.D.J.

MEMORANDUM AND ORDER

SHERIDAN, U.S.D.J.

This matter comes before the Court on Defendant, Mann Bracken LLC's, objections to the November 25, 2008 Report and Recommendation of the Honorable Esther Salas, which recommended denying Defendant's motion to dismiss for lack of personal jurisdiction or, in the alternative, to transfer to the Northern District of Georgia. This Court has reviewed the record de novo and for the following reasons substantially agrees with Judge Salas's recommendations to deny Defendant's motion; but dismisses the claims of Plaintiffs Wideman, Schwebs and Williams since the state claw claims are not in common with other claims.

Procedural History

On October 14, 2007, Plaintiffs Mark Apostolou and Chandelle Whitney instituted the present action against Mann Bracken, LLC, alleging that Defendant violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (FDCPA), by attempting to collect debts through false, deceptive, and misleading practices. Plaintiffs also seek certification of a class action. Defendant is a limited liability company that has its principal place of business in the State of Georgia. Mr. Apostolou is a resident of New Jersey, and Ms. Whitney is a resident of New Hampshire. Defendant has conceded that this Court has specific personal jurisdiction over it based upon Mr. Apostolou's claims.

On December 12, 2007, before Defendant filed an answer or other responsive pleading, Plaintiffs filed an Amended Complaint, adding eight plaintiffs who do not reside in New Jersey. The eight plaintiffs are: Richard S. Crews of Oklahoma, Robert H. Gardner of Arizona, Arnoud C. Moes of South Carolina, Jeri B. Schwebs of California, Bradley M. Central of North Dakota, John M. Wade of New York, Don Wideman of Texas, and Sygmund N. Williams of California ("Added Plaintiffs"). The Amended Complaint sought certification of a class action having three classes, two of which have sub-classes for California and Texas residents.

Defendant's motion to dismiss was referred by this Court to Judge Salas for a report and recommendation pursuant to Local Civil Rule 72.1. Judge Salas recommended that the permissive joinder of the out-of-state plaintiffs under Fed R. Civ. P. 20 was proper. Defendant Mann Bracken objected to Judge Salas's recommendation.

Common Transactions among the Plaintiffs

Sometime prior to filing their complaint, each plaintiff allegedly incurred and then defaulted on a financial obligation. While plaintiffs allegedly defaulted with three different financial institutions, Chase Bank USA, N.A., FIA Card Services N.A., and Target National Bank, each institution assigned, placed, transferred, or sold the debt to defendant, Mann Bracken for collection.

Thereafter, Mann Bracken allegedly sent each individual plaintiff a letter*fn1 in an attempt to collect the outstanding debt. The letters sent to the Plaintiffs are very similar*fn2. Each letter contains the same three substantive paragraphs which state (1) the matter had been referred to defendant by a financial institution, (2) in order to collect the amount owed, and (3) plaintiff could avoid a law suit by responding within thirty days. The paragraphs state:

The above referenced account has been referred to this firm for collection. The Balance above is the amount owed as of the date of this letter. Depending upon your account agreement with the creditor, interest, late charges and other charges may continue to accrue on your account. Therefore, the amount due on the date you pay may be greater. If you pay the Balance above and an additional payment is required for your account to be closed as paid in full, we will attempt to contact you again.

The original contract you entered into with [Institution Name] or with the predecessor or assignor of [Institution Name], provides for the resolution of claims or disputes by binding arbitration. If we are unable to reach satisfactory arrangements, the filing of an arbitration claim will be evaluated. If an arbitration award in favor of [Institution Name] is granted, we intend to pursue legal remedies available pursuant to the award. This firm practices law in DC, GA, MD, NC, SC, TN, TX, VA and WV. Accounts in other jurisdictions may be forwarded to an attorney licensed in that jurisdiction should a local attorney become necessary. This does not affect your rights set forth in this letter or any other rights you may have.

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 from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or a copy of a judgment if one exists and mail you a copy of such verification or judgment. If you request from this office in writing within 30 days from receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

Plaintiffs contend that each letter is a violation of the FDCPA because the letters misrepresented the facts. The letter was false because defendant did not " receive any meaningful review or involvement by a licensed attorney prior to mailing, and . . . licensed attorneys were [not] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.