United States District Court, D. New Jersey
ESTATE OF WILFRED C. CLEMENTS, Plaintiff,
APEX ASSET MANAGEMENT, LLC, Defendant.
Patrick Kelly, III, Esq. KELLY LAW OFFICES, LCC Attorney for
Michael Schwartz, Esq. Lawrence J. Bartel, III, Esq.
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Attorney for
HONORABLE JEROME B. SIMANDLE, JUDGE
action, Plaintiff Estate of Wilfred C. Clements (hereinafter
“Plaintiff”) alleges that Defendant Apex Asset
Management, LLC (hereinafter “Defendant”)
violated the Fair Debt Collection Practices Act (hereinafter
“FDCPA”), 15 U.S.C. § 1692f(8), in its
efforts to collect an outstanding debt against Plaintiff.
[Docket Item 4-1, 1.] Plaintiff alleges it received
Defendant's debt collection letter in an envelope that
permitted Plaintiff's account number and another
five-digit number to show through the envelope's glassine
window, thus failing to protect Plaintiff's financial
privacy with regard to symbols of debt collection activity,
on envelopes. In the present motion, Plaintiff seeks summary
judgment. [Docket Item 4.] For the reasons stated herein,
Plaintiff's motion will be denied, and Plaintiff will be
directed to show cause under Rule 56(f)(1), Fed. R. Civ. P.,
why summary judgment should not be entered in favor of
operates as a debt collector within the meaning of 15 U.S.C.
§ 1692(a)(6) [Docket Items 4-2, ¶ 2; 6-2, ¶ 2]
and contracts with a third-party vendor to mail its
collection letters. [Docket Item 6-3, ¶ 3.] Defendant
drafted a collection letter to collect Plaintiff's
outstanding debt. [Docket Item 4-2, ¶ 3; 6-2, ¶ 3.]
Defendant's mail vendor created, printed, folded,
inserted Plaintiff's letter into a glassine-windowed
envelope [Docket Item 4-2, ¶ 4; 6-2, ¶ 4], and
mailed Plaintiff the collection letter on May 10, 2017.
[Docket Item 6-2, ¶ 3.] Plaintiff claims that a
five-digit number and a twenty-three-digit number, the latter
containing the Plaintiff's entire account number, were
visible through the glassine window of the envelope in which
the correspondence was mailed. [Docket Item 4-2, ¶¶
5-6.] Plaintiff says it relies on a copy of the envelope and
letter located in “Exhibit C” [id.];
however, the exhibit was not provided. Exhibit C has no
content, so no example of the envelope and letter is in
evidence. Defendant argues that the twenty-three-digit
number, containing Plaintiff's account number, could not
have been visible through the glassine window of the sealed
envelope. [Docket Item 6-2, ¶ 4.] Additionally,
Defendant admits only that the five-digit number was visible
through the glassine window but argues it did not contain any
of the Plaintiff's personal or private account
information. [Docket Item 6, 2.]
11, 2018, Plaintiff filed a complaint in the Superior Court
of New Jersey, Law Division, alleging Defendant violated the
FDCPA, 15 U.S.C § 1692f(8). [Docket Item 1.] Defendant
timely removed the case to the U.S. District Court for the
District of New Jersey [Docket Item 1] and timely filed an
answer. [Docket Item 3.] Plaintiff thereafter filed the
present motion for summary judgment [Docket Item 4] and
Defendant subsequently filed a Brief in Opposition to
Plaintiff's motion. [Docket Item 6.] Plaintiff did not
file a reply brief, and did not supply the alleged envelope
or letter that was missing from its moving papers.
STANDARD OF REVIEW
summary judgment, the moving party bears the initial burden
of demonstrating that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); accord Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
assertion that a fact cannot be-or, alternatively,
is-genuinely disputed must be supported either by citing to
"particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for the purposes of the motions only), admissions,
interrogatory answers, or other materials," or by
"showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact." Fed.R.Civ.P. 56(c)(1)(A), (B).
properly supported motion for summary judgment is made, the
burden shifts to the non-moving party, here the defendant,
who must set forth specific facts showing that there is a
genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). In reviewing a motion
for summary judgment, the court is required to examine the
evidence in the light most favorable to the non-moving party,
here the Defendant, and extend all reasonable inferences in
that party's favor. Scott v. Harris, 550 U.S.
372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273,
287 (3d Cir. 2014). A factual dispute is material when it
“might affect the outcome of the suit under the
governing law, ” and genuine when “the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248.
The non-moving party “need not match, item for item,
each piece of evidence proffered by the movant, ” ...