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Robert Donatelli v. James C. Warmbrodt

June 29, 2011


The opinion of the court was delivered by: Judge Terrence F. McVerry

ECF No. 66


TERRENCE F. McVERRY, District Judge.

The Court considers here the Motion for Summary Judgment [ECF No. 66] filed by Defendants, James C. Warmbrodt ("Warmbrodt"), and the firm, Weltman, Weinberg, & Reis, Co., L.P.A. ("WWR" or "the firm") (collectively, "the Defendants") in response to federal and state claims filed against them by Robert Donatelli ("Donatelli" or "the Plaintiff").*fn1 In Counts One through Three of the five count pro se Complaint [ECF No. 1],*fn2 Donatelli alleges violation of multiple sections of the federal Fair Debt Collection Practices Act, ("FDCPA"), 15 U.S.C. § 1692 et seq., the Fourteenth Amendment to the United States Constitution, the Pennsylvania Fair Credit Extension Act, 73 Pa. Cons. Stat. Ann. § 2270.1 et seq., and the Pennsylvania Unfair Trade Practices and Consumer Protection Act , 73 Pa. Cons. Stat. Ann. §§ 201-1 et seq. Count Four is premised on alleged violations of the Pennsylvania Uniform Commercial Code, Pa. Cons. Stat. Ann. §§ 1101 et seq. In Count Five, Donatelli alleges that the Defendants, in addition to violating the statutes already listed, transgressed state criminal laws which prohibit the making of false or misleading statements to the public for the purpose of promoting the purchase or sale of services, 18 Pa. Con. Stat. Ann. § 4107(a) (5); securing the execution of documents by deception in violation of18 Pa. Con. Stat. Ann. § 4114, and engaging in various unlawful collection agency practices in violation of 18 Pa. Con. Stat. Ann. § 7311 et seq. The Defendants‟ Motion for Summary Judgment on the federal constitutional and statutory claims will be granted, and the state claims will be dismissed without prejudice.


Donatelli alleges that on October 23, 2006, he received a letter from Union Plus Credit Card Program, requesting payment for charges made on the card. [ECF No. 1 at ¶12]. *fn3 About two weeks later, he received two phone calls in one day at his work number from a person claiming to be an employee of Household Credit Service ("Household"), inquiring about the outstanding credit card balance. [Id. at ¶ 13]. On November 10, 2006, Donatelli sent Household "a Notice and Demand for Validation And Adequate Assurance of Performance." [Id. at ¶14].*fn4

In December 2006, WWR in Columbus, Ohio, sent Donatelli a letter "demanding payment of the account." [Id. at ¶ 15]. On or about December 20, 2006, Donatelli responded by sending WWR a Notice of Dispute. [Id. at ¶16]. In March 2006, Union Plus Credit Card Program ("Union Plus") sent Donatelli a letter stating that it had learned from a credit reporting service that Donatelli was disputing the account: "Please note that we have received and processed multiple disputes regarding this Account and based on our investigations, we are reporting the account status to all three Major credit reporting agencies [that the] Account [is] 150 days past due date." [Id. at ¶ 17].

On or about April 6, 2007, WWR sent Donatelli a poor quality copy of a statement from Union Plus in response to his December 2006 Notice of Dispute. [Id. at ¶18]. In June 2007, Union Plus contacted Donatelli, telling him that creditor HSBC Bank Nevada, N.S. ("HSBC") had learned via TransUnion that Donatelli had filed a Notice of Dispute. The letter then stated, "Please note that we have received and processed multiple disputes regarding this account and based on our investigations, we are reporting the account status to all three major credit reporting agencies as follows: Reporting as a charge off." [Id. at ¶19].

In August 2007 a Complaint [ECF No. 41-3] was filed against Donatelli in the Court of Common Pleas of Mercer County, Pennsylvania by Warmbrodt and WWR, acting as debt collectors, on behalf of their client, creditor, "HSBC". According to the Complaint, Donatelli applied for, received, and used a credit card issued by HSBC, failed to make monthly payments, and, as of June 22, 2007, had accumulated a balance due of $16,532.98, plus interest. [Id. at ¶¶ 1-5]. The Complaint was signed by Warmbrodt, and contained a statement that WWR "is a debt collector attempting to collect this debt for [its] client, and any information obtained [would] be used for that purpose." [Id. at 4]. Attached to that Complaint was an "IBEW Ultra Platinum Mastercard Statement." [Id. at 5]. Donatelli was directed to send payment to "Union Plus Credit Card" at an address in Baltimore, MD. Also attached to the Complaint was a verification by Charmain Hopper, who was identified as "Manager of HSBC." [Id. at 6]. She attested that she was "duly authorized to make the verification, and that the facts set forth in the foregoing Complaint [were] true and correct the best [sic] of [her] knowledge, information and belief." [Id.]. Donatelli filed a pro se answer -- as opposed to Preliminary Objections - to the state court complaint. [ECF No. 41-4].

In September 2007, HSBC sent Donatelli a letter identical to the one it had sent in March 2007, stating again that it would "report[ ] the account status to all three major credit reporting agencies . . . as a charge off." [ECF No. 1 at ¶ 22].

Donatelli filed a twenty-seven page pro se Complaint [ECF No. 1] in this Court in August 2008. Nine months later, he filed a Motion to Extend Time to Obtain Counsel, Motion to Stay, so that he could confirm that he had retained legal counsel. [ECF No. 12]. The Court gave him until June 22, 2009 to do so. Donatelli retained counsel, and an initial case management conference took place on July 27, 2009. Counsel entered his appearance and was given until August 17, 2009 to file an Amended Complaint. He failed to do so. He also failed to comply with the Court‟s Order to file the parties‟ stipulation selecting an ADR Process. This failure resulted in the threat of sanctions. [ECF No. 27]. Counsel still did not act, and on December 4, 2009, a Show Cause Order [ECF No. 35] was issued, which the Plaintiff ignored. Neither the Plaintiff nor his counsel appeared at the "twice noticed Status/Settlement Conference" scheduled on January 15, 2010. [ECF No. 35]. A new date was set, and the Court ordered that "should Plaintiff‟s counsel fail to appear and/or to participate in good faith in the Status/Settlement Conference, this Court will recommend that the case be dismissed upon Plaintiff‟s failure to prosecute." [Id.]. At a post-discovery status conference held on February 5, 2010, the parties were directed to file a joint stipulation identifying claims in the original Complaint to be dismissed, and those remaining to be tried. [ECF No. 39]. The Court was informed by counsel for the Defendants that due to uncooperative, rude, and obfuscatory conduct on the part of Donatelli‟s attorney, a joint stipulation could not be agreed upon.*fn5 Nonetheless, the Defendants filed a Motion for Summary Judgment with supporting documents, to which the Plaintiff responded. [ECF No. 42]. While that Motion was pending, Donatelli‟s attorney was subject to professional disciplinary sanctions in an unrelated matter, and, as a result, was temporarily suspended from practicing in this and other courts. See [ECF No. 59]. This Court thus issued an Order staying the case for sixty days in order to enable Donatelli to engage new counsel. [Id.]. At the same time, the outstanding Motion for Summary Judgment was denied without prejudice to refiling after expiration of the stay. [Id.]. Donatelli was unable to find substitute counsel, and, following a status conference, the stay was lifted. [ECF No. 63]. The pending Motion for Summary Judgment was filed on January 21, 2011. Donatelli, again acting pro se, filed responsive documents. The Defendants‟ renewed Motion for Summary Judgment [ECF No. 66] is now ripe for review.


Summary Judgment is appropriate only where there are no genuine issues of material fact. Matsushita Elec. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue of material fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). While the moving party must demonstrate the absence of any genuine factual dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986), the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 586-87 (1986) (emphasis in original removed).

In evaluating the evidence, the Court must view the facts and the inferences to be drawn therefrom in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255. At the summary judgment stage, the Court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. When examining the record to see if there are genuine issues of material fact, the Court's focus is on issue finding, not on issue resolution.


The theme uniting Donatelli‟s claims is that the Defendants "violated and continue to violate the FDCPA when they filed a lawsuit against Plaintiff and let it sit for over two years knowing that it lacked a proper evidentiary basis to support [it]." [ECF No. 72 at 2]. According to Donatelli, "the intention of the Defendant(s) was using the Mercer County Courts as an indirect debt collector as the one year absence of prosecuting the case proves that they had no intention of prosecuting the case but simply filed the case in hopes of getting a default judgment." [ECF No. 1 at ¶ 24]. According to Donatelli, the Defendants have failed to support their Complaint with "proof that would be competent to support their claim that they have a valid debt to collect from the plaintiff [,]" and should be held accountable for filing a baseless claim. [ECF No. 72 at 3].

Against the background of the parties‟ arguments, the record, and the law, the Court must determine whether Donatelli has succeeded in demonstrating that a genuine issue of material fact exists. The Court turns first to the federal statutory claim.

A. The Fair Debt Collection Practices Act "Congress made its purpose in enacting the FDCPA explicit: "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.‟" Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 367 (3d Cir. 2011) (quoting 15 U.S.C. § 1692e). *fn6 "Alleged violations of the FDCPA are to be examined from the perspective of the "least sophisticated consumer.‟" Popson v. Galloway, No. 10-cv-77E, 2010 WL 2985945 at *3 (W.D. Pa. July 27, 2010) (quoting Brown v. Credit Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006)). "The least sophisticated debtor standard requires more than "simply examining whether particular language would deceive or mislead a reasonable debtor‟ because a communication that would not deceive or mislead a reasonable debtor might still deceive or mislead the least sophisticated debtor." Brown, 464 F.3d at 454 (citation omitted).

"The FDCPA establishes a general prohibition against the use of "false, deceptive, or misleading representation or means in connection with the collection of any debt.‟" Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993) (quoting 15 U.S.C. §1692e). "The sixteen subsections of § 1692e set forth a non-exhaustive list of practices falling within this ban." Id. Donatelli‟s FDCPA claims are based on multiple subsections, which the Court considers seriatim.

15 U.S.C. § 1692e(2)(A)

Donatelli asserts first that the Plaintiff in the state proceeding failed to produce any of the following: an executed application or agreement referring to HSBC, the alleged creditor, a statement of accounts showing a decrease in HSBC‟s "Net Worth Account" and a decrease in HSBC‟s asset account demonstrating the existence of consideration, an accounting ledger, and "a full disclosure statement" of expert witnesses, or their expected trial testimony. *fn7 [ECF No. 72 at 13, n.6, 7]. According to the Plaintiff, the Defendants have "done nothing to establish that the debt exists through the production of any competent proof," and have, therefore, violated the terms of section 1692e (2) (A). [Id. at 11]. Without citing supporting authority, the Plaintiff reasserts substantially similar allegations under other sections of 1692e, including 1692e ...

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