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Clark v. Unifund CCR Partners

April 30, 2007

JOANNE CLARK PLAINTIFF,
v.
UNIFUND CCR PARTNERS, BERNSTEIN LAW FIRM, P.C. DEFENDANTS



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

Memorandum Opinion

I. Introduction

This an action brought pursuant to the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq. Plaintiff, Joanne Clark, alleges that defendants Unifund CCR Partners (Unifund) and the Bernstein Law Firm, P.C., violated the FDCPA in several respects during litigation initiated by defendant Unifund (doing business as Unifund assignee of Citibank) in the Court of Common Pleas of Allegheny County against plaintiff for her alleged failure to pay credit card debt.

On July 11, 2006, the Bernstein Law Firm filed a civil action against plaintiff on behalf of Unifund in the Court of Common Pleas of Allegheny County seeking to recovery an unpaid balance of $10,377.17, plus attorney's fees, costs, and interest. On October 25, 2006, plaintiff (through counsel) filed Preliminary Objections to the State Court Action. On November 9, 2006, on behalf of their clients, Bernstein Law Firm and counsel for plaintiff both signed and filed a Joint Praecipe to Settle, Discontinue and End, With Prejudice the State Court Action. On March 1, 2007, plaintiff commenced the instant action seeking statutory damages, actual damages, attorney's fees, litigation expenses and costs arising from defendants alleged violations of the FDCPA. Plaintiff also seeks to certify this action as a class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3).

Currently pending before this Court is the Motion of Defendant Bernstein Law Firm to Dismiss (doc. no. 7) with supporting brief and documentation and the Motion of Defendant Unifund for Joinder to Bernstein Law Firm's Motion to Dismiss (doc. no. 13). After careful consideration and for the reasons that follow, this Court will grant said motions and will dismiss this case with prejudice.*fn1

II. Standards of Review

In deciding a motion to dismiss pursuant to Fed.R.Civ.P. Rule 12(b)(6), the Court accepts the well-pleaded factual allegations of the complaint as true, and draws all reasonable inferences therefrom in favor of the plaintiff. Armstrong Surgical Center, Inc. v. Armstrong County Memorial Hospital, 185 F.3d 154, 155 (3d Cir. 1999). A claim should not be dismissed for failure to state a claim unless it appears beyond a doubt that the non-moving party can prove no set of facts in support of its allegations which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Marshall-Silver Construction Co. v. Mendel, 894 F.2d 593, 595 (3d Cir. 1990).

In making this determination, the court must construe the pleading in the light most favorable to the non-moving party. Budinsky v. Pennsylvania Dept. of Environmental Resources, 819 F.2d 418, 421 (3d Cir. 1987). As the United States Court of Appeals for the Third Circuit explained:

A Rule 12(b)(6) motion will be granted "'if it appears to a certainty that no relief could be granted under any set of facts which could be proved.'" Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005) (quoting D.P. Enter. Inc. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984)). We must accept all factual allegations in [plaintiff's] complaint as true, but we are not compelled to accept "unsupported conclusions and unwarranted inferences," Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or "a legal conclusion couched as a factual allegation," Papasan v. Allain, 478 U.S. 265, 286 (1986).

Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007).

III. Discussion

The FDCPA was enacted by Congress to protect consumers who have been victimized by unscrupulous debt collectors, regardless of whether there is a valid debt owed. Baker v. G.C. Services Corp., 677 F.2d 775 (9th Cir. 1982). The United States Court of Appeals for the Third Circuit has determined that the FDCPA, "should be enforced by debtors acting as private attorneys general," Graziano v. Harrison, 950 F.2d 10, 113 (3d Cir. 1991), and the Act is to be liberally applied and administered. Weiss v. Regal Collections, 385 F.3d 337, 345 (3d Cir. 2004).

The Court of Appeals for the Third Circuit applies a "least sophisticated consumer" standard to analyze the protections afforded under the FDCPA, including whether a debtor would be confused or misled by contradictory or overshadowing information contained in debt collection notices. Graziano, 950 F.2d at 111. This standard is lower than that of a reasonable debtor, and reflects the policy of the FDCPA to ...


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