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Mark Rogozinski v. Nco Financial Systems

October 24, 2012

MARK ROGOZINSKI PLAINTIFF,
v.
NCO FINANCIAL SYSTEMS, INC., DEFENDANT.



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

MEMORANDUM

Currently pending before the Court are the Cross-Motions for Summary Judgment of Plaintiff Mark Rogozinski and Defendant NCO Financial Systems, Inc. For the following reasons, Plaintiff's Motion is denied and Defendant's Motion is granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

This matter centers on the attempted collection of a debt by Defendant NCO Financial Systems, Inc. ("NCO") from Plaintiff Mark Rogozinski. Plaintiff claims that Defendant's actions in attempting to collect on this debt violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Two specific events give rise to the issues. First, on October 12, 2009, NCO attempted to send Plaintiff an initial letter notice as required by FDCPA § 1692(g). (Pl.'s Brief in Opp'n Summ. J, Ex. F., Second Deposition of Michael Noah ("Noah Dep. II") 5:25--5:14, April 12, 2012.) The notice was to inform Plaintiff about a previous debt on a Discover credit card account. (Pl.'s Mot. Summ. J., Ex. A., October 7, 2010 Transcript of Phone Call ("10/7/2010 Call Tr.") 4.) The notice was sent to the address of Plaintiff's mother, where Plaintiff had not resided for six years. (Noah Dep. II 5:10--18; Pl.'s Mot. Summ. J., Ex. D., Deposition of Mark Rogozinski ("Rogozinski Dep.") 4:17--22, Apr. 12, 2012.) Plaintiff states that he never received this notice. (Rogozinski Dep. 68:22--69:11.)

Second, Mr. Rogozinski called NCO on June 7, 2010 after receiving a voice mail from them earlier that day. (Def.'s Mot. Summ. J., Ex. B, First Deposition of Michael Noah ("Noah Dep. I") 136:11--12, Dec. 13, 2011.) The call was answered by Tejas Bhandare, an NCO employee located in Mumbai, India. (10/7/2010 Call Tr. 1.) The following exchange then took place:

Bhandare: "How can I help you, sir?"

Rogozinski: "Ok, uhm...I wanna know who you guys are and why you're calling our house trying to collect a debt."

Bhandare: "What number did you receive a call on sir?" Rogozinski: "Uh, you called my home number twice today. [Number redacted.] Bhandare: "No, we didn't call you today."

Rogozinski: "Uh, it's on my caller ID, dude. I'm looking at it right now.

Second time you called was 1:27 PM."

Bhandare: "Must be some sort of a mistake, sir."

Rogozinski: "Excuse me?"

Bhandare: "Must be some sort of mistake." (10/7/2010 Call Tr. 1.) Plaintiff then played back the voice mail recording of the phone call earlier that day from NCO, after which Mr. Bhandare admitted that NCO was "looking for Mark Rogozinski." (Id. at 2.) After another brief exchange, Mr. Bhandare transferred the call to Mr. Oliver Lingam, who had been identified in the original message left on Mr. Rogozinski's voice mail. (Id. at 2--3.) Mr. Lingam informed Mr. Rogozinski that he was calling in regards to an overdue balance on Mr. Rogozinski's Discover card from 1997. (Id. at 4.) Mr. Rogozinski told Mr. Lingare that the statute of limitations on this debt had run out a long time ago, told Mr. Lingare that NCO should not call him again, that he had the conversation recorded, and that NCO would be hearing from him later. (Id. at 4--5.)

Mr. Rogozinski filed suit on April 15, 2011 bringing one count for violation of the Fair Debt Collection Practices Act, 15 U.S.C. ยง 1692. He alleged specifically that Defendants (1) violated 1692(d) by harassing Plaintiff in connection with the collection of an alleged debt, (2) violated 1692(e) by using false, deceptive, or misleading representations or means in connection with the collection of an alleged debt, (3) specifically violated 1692(e)(10) by using false misrepresentations or deceptive means to collect or attempt to collect a debt, (4) violated 1692(f) by using unfair and unconscionable means to collect or attempt to collect a debt, (5) violated 1692(g) by failing to send written notification within five days of its initial communication with Plaintiff advising him on his rights to dispute the debt or request verification of the debt, and (6) generally violated the FDCPA. On September 19, 2012, Defendant NCO filed a Motion for Summary Judgment, ...


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