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Vacanti v. Apothaker & Associates

November 12, 2010


The opinion of the court was delivered by: Tucker, J.


Presently before this Court is Defendant's Motion for Judgment on the Pleadings (Doc. 18), Plaintiff's Response in Opposition thereto (Doc. 20), and Defendant's Reply (Doc. 23). For the reasons set forth below, the Court will grant Defendant's Motion.


Plaintiff, a Pennsylvania resident, initiated this action against Defendant Apothaker & Associates, P.C., a New Jersey law firm, for allegedly violating the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692,et seq. From the evidence of record, taken in a light most favorable to Plaintiff, the relevant facts are as follows.

A. LVNV's November 13, 2007 Complaint against Plaintiff

At all pertinent times, Plaintiff alleges that Defendant acted on behalf of LVNV Funding LLC ("LVNV"), a New Jersey corporation engaged in debt collection, as LVNV's attorney. On November 13, 2007, LVNV, through Defendant, filed a complaint against Plaintiff seeking to collect a consumer debt in the amount of $4,585.07 that Plaintiff allegedly owed to Sears, a third-party. Ultimately, the November 13, 2007 complaint was dismissed.

B. LVNV's Reinstated Complaint against Plaintiff

On or about June 11, 2009, LVNV reinstated the November 13, 2007 complaint against Plaintiff in Philadelphia Municipal Court. Plaintiff claims the reinstated complaint was time barred. Plaintiff further alleges that he was never properly served and was not notified of the related hearing scheduled for August 5, 2009. As a result, Plaintiff did not attend the hearing. Plaintiff avers that during the hearing, Defendant falsely represented that service had been made and because of Plaintiff's absence, LVNV managed to secure a default judgment against Plaintiff. On August 25, 2009, LVNV, through Defendant, allegedly served Plaintiff with Interrogatories requesting personal financial information including, inter alia, Plaintiff's social security number, bank account location, social security benefits, and other sources of income. Plaintiff filed a petition to reopen the case, which the lower court granted. On October 20, 2009, the lower court vacated the default judgment against Plaintiff. Immediately thereafter, the lower court held a hearing on the merits. Plaintiff alleges that Defendant failed to present any documentary evidence, witnesses, or any substantive arguments. At the conclusion of the hearing, the lower court entered judgment in favor of Plaintiff.

C. Plaintiff's Complaint against LVNV in Federal Court

On November 6, 2009, Plaintiff filed a Complaint in the Eastern District of Pennsylvania (Civil Action No. 09-5111) ("LVNV Complaint") against LVNV containing one count for Violation of the FDCPA for, inter alia, failing to properly notify Plaintiff of the alleged debt; using false, deceptive and misleading representations in the attempt to collect on the debt; and using unfair or unconscionable means to collect the debt. Plaintiff claimed that he suffered personal humiliation, embarrassment, mental anguish, and emotional distress as a result of LVNV's conduct. In his prayer for relief, Plaintiff sought compensatory damages, statutory damages, and attorneys's fees and costs.

On December 17, 2009, Plaintiff filed a Notice of Voluntary Dismissal (Civil Action No. 09-5111, Doc. 3) which stated: "NOTICE IS HEREBY GIVEN that the above-captioned case has been DISMISSED with prejudice." The case was closed on the same day.

D. Plaintiff's Complaint against Defendant Apothaker in Federal Court

On December 8, 2009, Plaintiff filed a Complaint (Doc. 1) in federal court ("Apothaker Complaint") against Defendant Apothaker & Associates, P.C. The Apothaker Complaint contains essentially the same factual allegations as the LVNV Complaint and also contains one count for Violation of the FDCPA.*fn1

On January 18, 2010, Defendant filed an Answer (Doc. 3) generally denying the allegations set forth in Plaintiff's Complaint. Defendant asserts that it did not falsely represent to the Court that service had been made. Rather, Defendant claims it represented that it mailed notice of the new hearing to Plaintiff by certified and regular mail on June 15, 2009, and that the certified mail came back unclaimed while the regular mail was not returned to Defendant. Defendant also admits to serving Plaintiff with "interrogatories" dated August 25, 2009. In addition, Defendant asserts five affirmative defenses including: (1) If Defendant violated the FDCPA, the violation was not intentional and resulted from a bona fide error; (2) Plaintiff is precluded from recovering statutory damages in the absence of any showing Defendant ...

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