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Dara Skinner, On Behalf of Herself and All v. Asset Acceptance

June 26, 2012

DARA SKINNER, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
ASSET ACCEPTANCE, LLC,
DEFENDANT.



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

MEMORANDUM OPINION & ORDER

This matter is before the Court on a motion of Plaintiff Dara Skinner for partial summary judgment on liability only [43] and on Defendant Asset Acceptance, LLC's motion for summary judgment on Plaintiff's Complaint [45]. The Court has considered the written submissions of the parties. For the reasons discussed below, Plaintiff's motion for partial summary judgment will be denied and Defendant's motion for summary judgment will be granted.

Background

Plaintiff filed this putative class action against Defendant on May 13, 2010 seeking statutory damages pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k(a)(2)(B), as well as costs and attorney's fees pursuant to 15 U.S.C. § 1692k(a)(3). (See Compl.) Plaintiff contends that Defendant violated the FDCPA when it attempted to collect consumer debts in the State of New Jersey without posting a bond with the New Jersey Department of Treasury as required by N.J. Stat. Ann § 45:18-1 (akin to complying with State licensing law). (Compl., ¶ 1.)

Plaintiff, a citizen of New Jersey, allegedly owed Public Service Electric & Gas ("PSE&G") money for a utility bill, which debt she asserted in the Complaint arose out of a transaction which was primarily for personal, family or household purposes. (Compl., ¶ 6, 7.) Defendant purchased this debt from PSE&G on September 24, 2008 in a portfolio of debts originally owed to PSE&G from its gas and/or electric power customers. (Proctor Aff., ¶ 4 & Ex. A; Baskerville Decl., ¶ 12, Ex. I, J.) On October 24, 2008, Defendant sent Plaintiff an "initial" collection letter. (Proctor Aff., ¶ 5.) Plaintiff contends that Defendant wrote her a series of boilerplate collection, or "dunning," letters in an attempt to collect the PSE&G debt. (Compl., ¶ 10.) On May 4, 2009, Plaintiff sent Defendant a letter requesting full media validation of the debt in response to Defendant's letter of May 1, 2009. (Proctor Aff., ¶ 8 & Ex. C.) Plaintiff sent Defendant a similar letter on July 24, 2009. (Dominczyk Cert., Ex. A, Pl. Initial Disclosures.) Defendant sent Plaintiff at least two more collection letters, dated August 1, 2009 and September 1, 2009. (Compl., ¶ 10, Ex. A; Dominczyk Cert., Ex. A, Pl. Initial Disclosures; Baskerville Decl., Ex. K.) Thereafter, Plaintiff and Defendant exchanged written correspondence regarding Plaintiff's dispute of the validity of the debt and objection to Defendant's having reflected the debt on Plaintiff's credit reports. (Dominczyk Cert., Ex. A, Pl. Initial Disclosures.)

Because Defendant had not posted the requisite bond with the New Jersey Department of Treasury, Plaintiff alleges that Defendant was not lawfully permitted to collect consumer debts in the State, and its attempts to do so violated the FDCPA. (Compl., ¶ 11-13.) On February 2, 201o, Defendant filed a collection bond with the State of New Jersey. (Baskerville Decl., Ex. L.)

The Complaint in this matter was filed on May 13, 2010 alleging claims under the FDCPA, 15 U.S.C. §§ 1692e, 1692e(5), 1692e(10) and 1692f. Plaintiff moves for partial summary judgment with respect to her claim arising under 15 U.S.C. § 1692e(5) only. Defendant moves for summary judgment against Plaintiff's Complaint, arguing that Plaintiff's claims are barred by the statute of limitations and that it was not required to post the bond required under N.J.S.A. 45:18.

Discussion

A. Summary Judgment Standard

"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).

In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determinations are the province of the ...


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