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ALBANESE v. PORTNOFF LAW ASSOCIATES LTD.

January 16, 2004.

ROBERT ALBANESE, et al., Plaintiffs,
v.
PORTNOFF LAW ASSOCIATES, LTD., et al., Defendants



The opinion of the court was delivered by: MARVIN KATZ, Senior District Judge

MEMORANDUM AND ORDER

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 Page 2

  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 Page 3 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.

  I. Background

  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 Page 4 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 Page 5 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." Page 6 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. Page 7

  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.

  II. Discussion

  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. Page 8 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 ...


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