Searching over 5,500,000 cases.

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.

Estate of Clements v. Apex Asset Management, LLC

United States District Court, D. New Jersey

March 25, 2019


          Thomas Patrick Kelly, III, Esq. KELLY LAW OFFICES, LCC Attorney for Plaintiffs

          Andrew Michael Schwartz, Esq. Lawrence J. Bartel, III, Esq. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN Attorney for Defendant




         In this 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 Defendant.


         A. Facts

         Defendant 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.]

         B. Procedural History

         On May 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.


         At 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).

         A party 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).

         Once a 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, ” ...

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.