The opinion of the court was delivered by: Edmund V. Ludwig, J.
AND NOW, this 25TH day of February, 2009, the "Motion for Summary Judgment" (docket no. 26) filed by plaintiff Sheri L. Harris is denied. Fed. R. Civ. P. 56.*fn1
This is an action under the Fair Debt Collection Procedures Act. 15 U.S.C. § 1692 et seq. On December 14, 2007, plaintiff Sheri L. Harris, pro se, filed a complaint in this court, and later amended it. The amended complaint states that defendant NCO Financial Systems, Inc. violated the act, and requests the return of sums it collected. More specifically, the amended complaint alleges that NCO "rendered relentless pursuit concerning [a past due] account." Further, although the amended complaint admits plaintiff paid an amount in settlement of the debt in question, it asserts that she did not actually owe any money to the creditor that referred the account to NCO for collection. Amended Complaint, ¶¶ 2, 3.
Plaintiff moves for summary judgment, because "the undisputed facts of this case show that the defendant, NCO Financial Systems fails to provide valid evidence of debt and transaction regarding the plaintiff and the use of First USA/Bank One credit card number [number set forth]. As such, the Plaintiff is entitled to summary judgment as a matter of law." Motion for Summary Judgment (docket no. 26). Plaintiff's supporting brief does not identify the specific provision of the act on which she relies, but the crux of her claim is that defendant did not provide a validation notice to plaintiff - and has continued, despite plaintiff's request, to refuse to document the validity of the debt, in violation of 15 U.S.C. § 1692g.*fn2 Plaintiff's brief, ¶ 1 ("The defendant NCO Financial Systems failed to provide proof regarding origins of debt."); Plaintiff's brief, ¶ 8 ("The plaintiff is disputing receiving a validation notice from NCO Financial on 7/27/99.")
In response, defendant offered the affidavit of Lisa Signore, NCO's Vice President of Legal Compliance. Defendant's memorandum in opposition, Exhibit "B", ¶ 1 (docket no. 28). This affidavit attests that the affiant has reviewed plaintiff's records, and that, "[a]ccording to NCO's records, a validation notice was sent to Ms. Harris on July 27, 1999, which was within five days of the initial communication with Ms. Harris." Affidavit, ¶¶ 3, 4. Further: "At no point during the time that NCO administered the collection of Ms. Harris' account, did Ms. Harris dispute the debt." Affidavit, ¶ 6.
Because a genuine issue of fact exists as to (1) whether a validation notice was given as required by § 1692g, and (2) whether plaintiff disputed the debt as set forth in that section - obligating NCO to submit evidence of the origin and validity of the debt - summary judgment must be denied.*fn3
Discovery, as noted in defendant's response, including plaintiff's deposition, is not complete.*fn4 Upon completion, ...