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BROWN v. LAW OFFICES OF BUTTERFIELD

May 24, 2004.

HARRY E. BROWN, Plaintiff,
v.
LAW OFFICES OF BUTTERFIELD, JOACHIM, SCHAEDLER & KELLEHER, and RICHARD J. SCHAEDLER, Defendants



The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge

OPINION

This matter is before the court on Defendants' Motion for Summary Judgment Under Rule 56(b), which motion was filed on March 9, 2004, and Plaintiff's Cross Motion for Summary Judgment, which cross-motion was filed on March 15, 2004. For the reasons expressed below, we conclude that defendants are entitled to judgment as a matter of law on Counts I and II of the Complaint and plaintiff is entitled to judgment as a matter of law on Counts III, IV and V of his Complaint. Therefore, we grant in part and deny in part defendants' motion and grant in part and deny in part plaintiff's cross-motion.

  PROCEDURAL BACKGROUND

  This civil action arises from a letter dated June 6, 2003 from defendant Richard J. Schaedler of defendant Law Offices of Butterfield, Joachim, Schaedler & Kelleher ("Law Offices") to plaintiff Harry E. Brown. That letter concerned the collection of an alleged $4,923.47 debt owed by plaintiff to the non-party IRCA Community Credit Union. Plaintiff alleges that such letter was sent to him in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692-1692o ("FDCPA").

  On October 22, 2003 plaintiff filed a Complaint against defendants alleging: (1) a violation of 15 U.S.C. § 1692e; (2) a violation of 15 U.S.C. § 1692e(5); (3) a violation of 15 U.S.C. § 1692e(10); (4) a violation of 15 U.S.C. § 1692g(a)(3); and (5) a violation of 15 U.S.C. § 1692g(a)(4).

  On March 9, 2004 defendants moved for summary judgment on all counts of plaintiff's Complaint. On March 15, 2004 plaintiff filed a cross-motion for summary judgment. Both parties agree that there are no disputes as to any material fact. The sole issue raised in this case and at issue on these cross-motions for summary judgment is whether Mr. Schaedler's June 6, 2003 letter violates the FDCPA.

  For the reasons which follow, we find that the June 6, 2003 letter violates 15 U.S.C. § 1692e(10) and 1692g. Thus, we now grant in part and deny in part defendants' motion for summary judgment and grant in part and deny in part plaintiff's cross-motion for summary judgment.

  STANDARD FOR SUMMARY JUDGMENT

  Rule 56(c) of the Federal Rules of Civil Procedure provides that judgment shall be rendered where it is shown 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." Fed.R.Civ.P. 56(c). Where a moving defendant does not bear the burden of persuasion at trial, he need only point out that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265, 275 (1986). FINDINGS OF FACT

  Based upon the pleadings, record papers, depositions and exhibits of the parties, the undersigned makes the following findings of fact:

  1. On June 6, 2003 defendant Richard J. Schaedler sent a letter on the letterhead of defendant Law Offices to plaintiff Harry E. Brown.*fn1 2. The first sentence of the second paragraph of the June 6, 2003 letter states, "If payment in full is not received by me, or if a satisfactory arrangement for prompt payment is not made through my office within five (5) days from receipt of this letter, appropriate legal proceedings may begin."*fn2

  3. At the bottom of the June 6, 2003 letter, Mr. Schaedler included in bold the following validation notice:
Unless you notify us within 30 days after receiving this notice that you dispute the validity of the debt, or any portion thereof, we shall assume this debt is valid. If you notify us in writing within 30 days after receiving this notice (1) that this debt or any portion thereof is disputed or (2) that you request the name and address of the original creditor, we will obtain verification of this debt, a copy of the judgment (if a judgment is involved), or the name of the original creditor, if different from the current creditor, and will mail a copy and/or provide the name of the creditor to you.*fn3
(Emphasis in original.)

  CONCLUSIONS OF LAW

  Applying the summary judgment standard to the issues presented by the parties, we make the following conclusions of law: 1. Defendants Richard J. Schaedler and the Law ...


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