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Estate of Domenic Caruso v. Financial Recoveries

United States District Court, D. New Jersey, Camden Vicinage

June 22, 2017

ESTATE OF DOMENIC CARUSO, Plaintiff,
v.
FINANCIAL RECOVERIES, Defendant.

          OPINION Doc. Nos. 19, 20

          JOEL SCHNEIDER United States Magistrate Judge.

         This matter is before the Court on the “Motion for Summary Judgment” [Doc. No. 19] filed by defendant Financial Recoveries. Also before the Court is the “Motion for Summary Judgment as to Count I” [Doc. No. 20] filed by plaintiff Estate of Domenic Caruso. The Court has received plaintiff's opposition [Doc. No. 21] and defendant's opposition [Doc. No. 22] to the respective motions. Defendant and plaintiff seek summary judgment on all claims in this putative class action.[1] The Court exercises its discretion to decide the parties' motions without oral argument. See Fed.R.Civ.P. 78; L. Civ. R. 78.1. Pursuant 28 U.S.C. § 636(c), the parties consented to the jurisdiction of this Court to hear the case. [Doc. No. 14]. For the reasons to be discussed, defendant's motion will be GRANTED in part and DENIED in part; plaintiff's motion will be DENIED.

         BACKGROUND

         Plaintiff brings this putative class action for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1682 et seq. (“FDCPA”), which prohibits debt collectors from engaging in abusive, deceptive and unfair practices. Compl. ¶ 1 [Doc. No. 1]. The original debt in this action arose from the decedent Domenic Caruso's death at Kennedy University Hospital (“Kennedy”) on June 25, 2013 after suffering a cardiac arrest. See Certificate of Death, Pl.'s Opp'n Ex. A [Doc. No. 21-1]. The decedent's June 23 death at Kennedy resulted in a medical bill totaling $254.24 which Kennedy forwarded to plaintiff. The record does not specifically indicate to whom the bill was addressed. In response to the bill, plaintiff's counsel wrote Kennedy on October 2, 2013 disputing the alleged debt, demanding validation of the alleged debt, and advising that plaintiff was represented by counsel. Pl.'s Opp'n Ex. B; Pl.'s Statement of Material Facts (“SMF”) ¶ 2 [Doc. No. 20-2].

         On February 21, 2014, defendant received the decedent's account for collection from Kennedy. Defendant placed a validation letter for the account on file to be mailed by a third-party mail vendor, RevSpring, Inc. (“RevSpring”). On the same day, defendant received confirmation from RevSpring that the February 21, 2014 validation letter was mailed to “Mr. Caurso.” Def.'s SMF ¶¶ 34-36 [Doc. No. 19-1]. Unfortunately, it is not known to what address the letter was mailed. The record does not include the February 21, 2014 letter because it no longer exists. According to defendant, RevSpring only retains letters sent to debtors for one year and, thus, RevSpring retained the letter until February 2015 or about nine (9) months prior to plaintiff commencing this suit. Id. ¶¶ 26-28.

         Plaintiff argues it never received the February 21, 2014 validation letter and that defendant's October 6, 2015 letter sent to plaintiff's counsel was the first communication from defendant regarding the alleged debt. Compl. ¶ 10; Pl.'s SMF ¶ 7. The October 6, 2015 letter mailed to plaintiff's counsel was in an envelope with a glassine window that showed counsel's mailing address. Also visible through the glassine window was a barcode and 9-digit number above the address. According to plaintiff, the barcode and number contained information unique to the decedent and his alleged debt owed to Kennedy. Compl. ¶¶ 11-12. The substance of the October 6, 2015 letter states:

Re:DOMENIC CARUSO
Fin Rec Acct#: 86476026[2]
Balance Due: $254.24
Dear Sir or Madam:
As you know, we are representing Kennedy Health and are attempting to collect an amount of $254.24 from your client.
Please provide us with an updated status of the account. If suit has been filed, please indicate against whom.
If you have any questions, please call 800-705-9068 and speak with one of our representatives.
This Company is a debt collector. We are attempting to collect a debt and any information obtained will be used for that purpose.

Def.'s Ex. A [Doc. No. 19-3]. Plaintiff alleges the October 6, 2015 letter was the first communication from defendant regarding the alleged debt and did not contain the requisite statements in violation of the FDCPA. Compl. ¶ 21.

         Because defendant had not posted the requisite bond pursuant to N.J.S.A. 45:18-1, plaintiff also alleges defendant was not lawfully permitted to collect consumer debts in New Jersey in violation of the FDCPA. Id. ¶ 24. On January 24, 2016, defendant filed the requisite bond with the New Jersey Department of Treasury. Def.'s Attach. 1 [Doc. No. 19-1].

         On November 6, 2015, plaintiff commenced this putative class action alleging defendant violated the FDCPA by: (1) using prohibited language or symbol on the envelope of the October 6, 2015 letter in violation of 15 U.S.C. § 1692f(8); (2) failing to include the requisite statements in the October 6, 2015 letter in violation of §§ 1692g(a)(3)-(5); and (3) failing to post the requisite bond with the New Jersey Department of Treasury pursuant to N.J.S.A. 45:18-1. See generally Compl.

         The Rule 16 conference was held on July 11, 2016. The Court deferred discovery as to class certification until defendant's motion for summary judgment is decided and Ordered the parties to conduct discovery only as to the merits of plaintiff's complaint. July 11, 2016 Scheduling Order [Doc. No. 16]. Thereafter the parties filed their motions. [Doc. Nos. 19, 20].

         DISCUSSION

         A. Summary ...


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