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Garcia v. Portfolio Recovery Associates, LLC

United States District Court, D. New Jersey

June 29, 2018

RUFINO D. GARCIA, Plaintiff,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC, Defendant.

          CHRISTOPHER MARKOS WILLIAMS CUKER BEREZOFSKY On behalf of Plaintiff

          PETER COLONNA-ROMANO BEREZOFSKY LAW GROUP, LLC On behalf of Plaintiff

          MICHAEL J. QUIRK (pro hac vice) BEREZOFSKY LAW GROUP, LLC On behalf of Plaintiff

          AMANDA LYN GENOVESE TROUTMAN SANDERS LLP On behalf of Defendant

          DAVID N. ANTHONY (pro hac vice)

          JAMES K. TREFIL (pro hac vice)

          MEAGAN A. MIHALKO (pro hac vice) TROUTMAN SANDERS LLP On behalf of Defendant

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This is a Fair Debt Collections Practices Act (FDCPA) case brought under the theory that Defendant Portfolio Recovery Associates, LLC filed a state court collection lawsuit against Plaintiff Rufino Garcia without any intent to prove its claims. Before the Court is Defendant's Motion for Summary Judgment. For the reasons that follow, Defendant's motion will be granted.

         I.

         The Court takes its facts from Defendant's Statement of Undisputed Facts and Plaintiff's Responsive Statement of Material Facts. Defendant contends Plaintiff defaulted on a Citibank, N.A./Sears credit card account, which had a balance of $6, 139.75 at the time of default. Plaintiff denies that he defaulted on the account and that there was any balance on the account.

         Defendant purchased a portfolio of Citibank, N.A./Sears credit card accounts, which Defendant contends included Plaintiff's account. Defendant contends Plaintiff's account was assigned to one of Defendant's staff counsel, Thomas Murtha, for review. Defendant contends Murtha determined Plaintiff's account was suitable for collection action. A complaint was filed in the New Jersey Superior Court, Law Division on June 3, 2014.

         After the filing of the state court complaint, Plaintiff retained an attorney and filed an answer. In connection with that action, Defendant produced monthly statements from Citibank, load data, and the affidavit of assignment and sale. Defendant contends this information was sufficient to obtain a judgment under New Jersey law.

         The state court trial was originally scheduled for September 8, 2014. Plaintiff's lawyer thereafter requested a continuance, causing the trial to be rescheduled for October 6, 2014. Defendant contends Murtha had another trial scheduled in a different courthouse on October 6, 2014, which Plaintiff denies. Accordingly, Defendant contends Murtha hired a contract attorney from “Attorneys on Demand” to appear on the trial date and seek a further continuance. Plaintiff denies this contention, arguing that Defendant cannot name or identify the contract attorney hired.

         On October 6, 2014, no lawyer or representative for Defendant appeared. The state court action was thereafter dismissed without prejudice. According to Plaintiff, the state court judge “remarked to them that Portfolio hardly ever showed up for trial dates.” Defendant contends that, because of the contract attorney's error, Murtha exercised his discretion and chose not to re-file the case.

         On June 2, 2015, Plaintiff filed a purported class action, alleging a violation of the FDCPA. Plaintiff's Complaint pleads Defendant violated the following provisions of the FDCPA:

• 15 U.S.C. § 1692e by using false, deceptive, or misleading representation or means in connection with the ...

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