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Charles Fratz, Individually and On Behalf of All Others Similarly Situated v. Goldman & Warshaw

October 16, 2012


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


Plaintiff, Charles Fratz (hereinafter "Fratz"), has filed suit against a law firm, Defendant, Goldman & Warshaw, P.C., alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692a, et seq., Pennsylvania's Unfair Trade Practices Act and Consumer Protection Law ("UTPCPL"), 73 P.S. § 201-1, et seq. and the Fair Credit Extension Uniformity Act ("FCEUA"),*fn1 73 P.S. § 2270.1, et seq. Fratz alleges that Defendant knowingly relied upon a document that was "clearly not the applicable operative agreement" and used this document as evidence against him in a state court collection action.

Before the Court are both parties' cross-motions for summary judgment and Fratz's Motion for Class Certification. For the reasons set forth below, Fratz's motions will be denied and Defendant's motion will be granted in part and denied in part.


On November 27, 2008, Defendant brought a state collection action in the Bucks County Court of Common Pleas against Fratz on behalf of Capital One Bank (USA) N.A. (hereinafter "Capital One") regarding an unpaid credit card balance of $6,813.20. On March 29, 2011, Defendant provided Fratz's attorney with a notice of intention to praecipe the matter for arbitration, and also provided the documents Defendant intended to introduce as evidence during the arbitration hearing. (Pl.'s Mot. Summ. J. 4.) These documents included: (1) Fratz's signed credit card application dated 2002; (2) monthly billing statements from August 2005 through February 2008; and (3) an unsigned Cardmember Agreement copyrighted 2005. (Def.'s Mot. Summ. J. 4.) The 2005 Cardmember Agreement was provided only to Fratz's attorney and the arbitration panel. Fratz himself did not see the 2005 Cardmember Agreement until his deposition in the matter currently before this Court. (Pl.'s Dep. 45:14-17, Oct. 25, 2011.)

During the November 21, 2011 arbitration hearing, Fratz's attorney argued that the 2005 Cardmember Agreement was inapplicable and that its submission was a violation of the FDCPA. Nonetheless, the arbitrators allowed this agreement into evidence and entered a judgment against Fratz for $4,597.51.*fn2 Fratz did not appeal the judgment and instead filed this federal action. (Def.'s St. Facts ¶¶ 50-51.)

Fratz claims that the 2005 Cardmember Agreement presented to the arbitration panel cannot, without more, govern his 2002 account and that the use of this post-dated agreement is in violation of the FDCPA and Pennsylvania law. (Pl.'s Mot. Summ. J. 1.) In addition to his individual claims, Fratz alleges that Defendant is involved in a widespread scheme whereby Defendant, in pursuing collection law suits, attaches, as evidence, "clearly inapplicable and false exhibits . . . falsely representing that they are applicable contracts." (Compl. ¶¶ 35 a-f.)

Defendant responds that the 2005 Cardmember Agreement is the proper governing agreement over Fratz's account and in support of this position has offered: (1) the declaration of Richard A. Napolitano, a legal recoveries manager at Capital One, affirming that the 2005 Cardmember Agreement is correct and applicable to Fratz; (2) references to "Regulation Z,"*fn3 which permits lenders such as Capital One to issue subsequent agreements for revolving credit lines after the original date of issuance; and (3) the Internal Memorandum from Capital One containing a rubric instructing Defendant to use the 2005 Cardmember Agreement as the governing agreement for Fratz and others similarly situated. (Def.'s Mot. Summ. J. 11.)

Both Fratz and Defendant have filed motions for summary judgment. Fratz has additionally filed a motion for class certification. We address each motion in turn.


A. Standard of Review

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when, viewed in a light most favorable to the non-moving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine [dispute] as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To meet this standard, the party moving for summary judgment has the initial burden of supporting its motion with evidence in the record. Fed. R. Civ. P. 56(c).

If this requirement is satisfied, the burden shifts to the non-moving party to "set out specific facts showing a genuine dispute for trial." Fed. R. Civ. P. 56(e). The non-moving party may meet this burden either by submitting evidence that negates an essential element of the moving party's claims, or by demonstrating that the movant's factual evidence is insufficient to establish an essential element of its claims. Celotex, 477 U.S. at 331.

Where, as here, cross-motions for summary judgment have been filed, the summary judgment standard remains the same and each motion should be considered separately. Williams v. Philadephia Housing Authority, 834 F. Supp. ...

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