The opinion of the court was delivered by: MARVIN KATZ, Senior District Judge
Plaintiff Robert Albanese brings this class action*fn1 against
Defendants Portnoff Law Associates ("PLA"), Michelle R. Portnoff, and
Dawn M. Schmidt,*fn2 alleging that they employed deceptive practices and
charged excessive fees and costs in their attempt to collect an overdue
trash collection fee from Plaintiff on behalf of Lower Mount Bethel
Township ("Township"). He seeks relief under the federal Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., the
Pennsylvania Fair Credit Extension Uniformity Act (FCEUA), 73 P.S. §
2270.1 et seq., and the Pennsylvania Unfair Trade Practices and Consumer
Protection Law (CPL), 73 P.S. § 201-1, et seq.*fn3
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Presently before the court are the Parties' Cross Motions for Summary
Judgment. In his Motion, Plaintiff seeks a ruling that Defendants are
liable under the FDCPA*fn4 for their failure to make certain disclosures
mandated by the Act in connection with their actions taken against him
and on behalf of the Township.*fn5 In their Motion, Defendants contend
that they cannot be found liable
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for their actions taken with respect to the Plaintiff because such
actions are not covered the FDCPA.
For the reasons set forth below, both motions are denied.
At all times relevant to this action, Plaintiff has resided with his
three children at 6840 Front Street in Martins Creek, Pennsylvania, in a
home that he owns jointly with his former wife, Sandra Albanese. During
the years 1998-2001, neither Plaintiff nor his former wife paid trash
collection fees owed to the Township.*fn6 On February 15, 2002, in order
to resolve debt collection issues such as those involving the Plaintiff,
the Township entered into a contract with PLA, a law firm whose principal
purpose is to assist municipalities within the Commonwealth of
Pennsylvania
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in administering and collecting delinquent claims.*fn7 The contract
provided that PLA would serve as the Township's exclusive attorney for the
enforcement of all municipal claims arising from water, sewer, trash, and
tax assessments.
Between August 1 and August 15, 2002, the Township sent PLA the
delinquent trash assessments against the Plaintiffs real property for the
years 1998-2001. These assessments reflected a total overdue balance of
$990.92. On August 27, 2002, PLA sent Plaintiff and Mrs. Albanese a
notice of delinquent trash fees, advising them that they owed the
Township $1,040.52, an amount which included delinquent fees, interest,*fn8
and a $35.00 administrative cost. They were further advised that if
payment were not received by the due date of October 2, 2002, legal
proceedings would be instituted, and collection costs and attorneys fees
would be assessed. The letter did not state that it was sent by a debt
collector, as required by Section 1692e(11) of the FDCPA, nor did it
contain the validation notice or verification language required by
Section 1692g.
On November 4, 2002, PLA sent Plaintiff and Mrs. Albanese another
letter stating that Plaintiff owed the Township $1,212.44, an amount
which included a $160.00 legal fee. The letter advised Plaintiff that if
payment were not received within ten days, a lien would be filed
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against his property.*fn9 Again, this letter did not state that it
was from a debt collector, nor did it contain the required validation
notice or verification language. Approximately two weeks later, on
November 19, 2002, PLA followed through on its promise and prepared a
lien for filing against Defendant's property. That lien was filed on or
about December 4, 2002.
On that same date, PLA sent Plaintiff a third letter, this time
advising that the Township had indeed filed a lien against his property
and that a payment of $1,426.85 would be required to clear it. This
amount included interest, a fee of $175 for filing the lien, and $25.50
for court costs. The letter also explained that if PLA did not receive
full payment within fifteen days, it would take action to begin the
process of scheduling a Sheriff's Sale of Plaintiff s property. This
letter suffered from the same infirmities with respect to the FDCPA as
the previous two.
On December 26, 2002, PLA filed a Writ of Scire Facias against
Plaintiff's home. The Sheriff of Northampton County served the Writ on
Plaintiff and his former wife in early January of the following year.
Later that month, on January 23, 2002, PLA mailed a notice to Plaintiff
and his former wife, pursuant to Pa. R. C. P. 237.1, advising them that
they had ten days to act or be in default. The letter reflected a balance
due of $1,744.74, which included interest, a $175.00 fee for preparing
the Writ, an $87.00 Sheriff's fee for the Writ, a $10.00 court filing
fee, and a $30.00 legal fee. Although the letter was purportedly signed
by Schmidt, the initials "L.B."
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appeared next to her signature. The letter did not state that it was from
a debt collector and did not contain any validation notice or
verification language.
On January 29, 2003, Plaintiff contacted PLA for the first time and
stated that he would inquire into whether his mortgage company would pay
the delinquent assessments. At that time, PLA informed him of the
availability of payment plans. Plaintiff, however, did not follow up with
PLA after that conversation, and on February 21, 2003, Defendants
prepared and filed a default judgment against him with the Northampton
Court of Common Pleas.
On March 7, 2003, PLA sent Plaintiff a letter that urged him to pay the
current balance on his delinquent trash fees a sum of $1,946.79
or have a Writ of Execution filed against him. This balance
included additional interest, a $175.00 attorney fee for the preparation
and filing of the default judgment, $10.00 in court costs, and a $4.00
notary fee. This letter was also purportedly signed by Schmidt but again
bore another's initials, this time "S.C.R." The letter did not disclose
that it was from a debt collector, nor did it contain any validation
notice or verification language. On June 2, 2003, PLA mailed another
letter to Plaintiff, again informing him that the filing of a Writ of
Execution was imminent. Two weeks later, PLA ordered a title search of
Plaintiff's property.
On September 3, 2003, PLA followed through on its latest promise and
filed the Writ of Execution against Plaintiff's property. Plaintiff
received notice by Praecipe for Writ of Execution, signed by Schmidt,
which provided that Defendants sought to collect a total amount of
$4,315.27 for the delinquent trash fees. This figure included additional
interest, a $75.00 title search fee, a $750.00 legal fee for the Writ,
$10.00 in court costs, and a $1,500.00 sheriff fee for execution.
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On September 5, 2003, after receiving the Praecipe, Plaintiff again
contacted PLA and conveyed that he could not afford to satisfy his debt.
Approximately two weeks later, PLA sent Plaintiff a Notice of Sheriffs
Sale of his property, advising him that his home would be sold on
December 5, 2003 to enforce the court judgment for $1,942.82 obtained
against him by the Township. The notice further informed Plaintiff that
he could prevent the sale by taking immediate action in the form of
either: (1) paying his outstanding balance, (2) petitioning the court, or
(3) instituting other legal proceedings. In the event that Plaintiff
chose the first option, he was instructed to call PLA to find out the
exact amount of his debt. This letter did not state that it was from a
debt collector and did not contain any of the language required by the
FDCPA.
On October 14, 2003, as a result of this chain of events, Plaintiff
filed a class-action Complaint in this court, naming PLA, Portnoff, and
Schmidt as Defendants. On November 4, 2003, Plaintiff filed a Motion for
Temporary Restraining Order and/or Preliminary Injunction, in which he
sought a stay of the Sheriff's Sales that Defendants had scheduled of
his, and other class members', homes. The parties, however, entered into
a stipulation approved by this court's Order dated January 12,
2004 whereby Defendants have sought a continuance of the
Sheriff's Sale of Plaintiff s home and have also agreed to refrain from
taking any action to facilitate the sale of property owned by class
members during the pendency of this litigation. In December, 2003, the
parties filed Cross Motions for Summary Judgment, both of which are now
before the court.
Summary judgment is appropriate if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
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Fed.R.Civ.P. 56(c). At the summary judgment stage, the court does not
weigh the evidence and determine the truth of the matter. Rather, it
determines whether or not there is a genuine issue for trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In making this
determination, all of the facts must be viewed in the light most
favorable to, and all reasonable inferences must be drawn in favor of,
the non-moving party. Id. at 256.
The moving party has the burden of showing there are no genuine issues
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 639 (3d Cir. 1996). In
response, the non-moving party must adduce more than a mere scintilla of
evidence in its favor and cannot simply reassert factually unsupported
allegations contained in its pleadings. Anderson, 477 U.S. at 249;
Celotex, 477 U.S. at 325; Williams v. Borough of West Chester, 891 F.2d 458,
460 (3d Cir. 1989). Rather, there must be evidence on which a jury could
reasonably find for the nonmovant. Liberty Lobby, 477 U.S. at 252.
"Rule 56(c) mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who ...