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Eric Nyce v. Sterling Credit Corporation

April 2, 2013

ERIC NYCE,
PLAINTIFF,
v.
STERLING CREDIT CORPORATION, DEFENDANT.



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

MEMORANDUM

I.INTRODUCTION

Plaintiff Eric Nyce sued defendant Sterling Credit Corporation for violating numerous provisions of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Sterling moved for summary judgment on all of Nyce's claims. For the reasons that follow, the motion is granted in part and denied in part.

II.BACKGROUND*fn1

This case concerns Sterling's attempts to recover a debt from Nyce. Sterling contacted Nyce numerous times by phone and by mail. The specifics of each communication are set forth in Sterling's responses to Nyce's interrogatories. (See Resp. Ex. B at 5-7.) To summarize: Sterling called Nyce nine times between April 27, 2010 and June 19, 2010. Sterling started its calls again in December, calling Nyce thirteen times between December 20, 2010 and January 7, 2011. Of the last thirteen calls, eleven occurred between December 20th and December 23rd. In some instances, Sterling called immediately after Nyce hung up the phone. Sterling also sent a letter to Nyce once a month every month (except April) from March, 2010 to December, 2010.

One of the main disputes in the case is a letter that Nyce claims he sent to Sterling on June 7, 2010 by mail, by fax, and through Sterling's website. In the letter, Nyce requests that Sterling "cease and desist communication" with him. (Resp. Ex. C.) Sterling states that it never received the letter. On January 14, 2011, Sterling received a second cease and desist letter for Nyce's account. Sterling did not subsequently attempt to contact Nyce.

Nice filed his initial Complaint on August 8, 2011. An Amended Complaint was filed on April 2, 2012. In both complaints, Nyce claims that Sterling violated various provisions of the FDCPA. Sterling now moves for summary judgment.

III.LEGAL STANDARD

In considering a motion for summary judgment, "the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). The party opposing the motion, however, cannot "rely merely upon bare assertions, conclusory allegations or suspicions" to support its claim. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). After examining the evidence of record, a court should grant summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

A factual dispute is material when it "might affect the outcome of the suit under the governing law" and genuine when "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). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).

IV.DISCUSSION

Nyce claims that Sterling violated numerous provisions of the FDCPA -- specifically, that Sterling violated (A) §1692c(c) by contacting Nyce after Nyce notified Sterling in writing that he wished to cease further communication; (B) §1692d by repeatedly calling Nyce with the intent to annoy, abuse, or harass; (C) § 1692c(a)(1) by communicating with Nyce at an inconvenient time; and (D) § 1692f by using unfair or unconscionable means to attempt to collect a debt. The Court will address each claim in turn.

A. Section 1692c(c): Contacting Nyce After He Notified Sterling He Wished to Cease Further Communication

Pursuant to ยง 1692c(c), "[i]f a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not ...


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