Parker v. Pressler & Pressler, Llp

650 F.Supp.2d 326

Beulah PARKER, Plaintiff, v. PRESSLER & PRESSLER, LLP; Palisades Collection, LLC; Gerard Felt, Defendants.

Civil Action No. 07-5687 (KSH).

United States District Court, D. New Jersey.

June 30, 2009.

COPYRIGHT MATERIAL OMITTED

Andrew K. De Heer, Clementon, NJ, for Plaintiff.

Mitchell L. Williamson, Pressler & Pressler, LLP, Cedar Knolls, NJ, for Defendants.

OPINION

KATHARINE S. HAYDEN, District Judge.

I. INTRODUCTION

This action arises under the Fair Debt Collection Practice Act ("FDCPA"), 15 U.S.C. § 1692a, et seq.¹ Plaintiff Beulah Parker, a New Jersey resident, filed a complaint [D.E. # 1] on November 21, 2007 against: (1) Pressler & Pressler, LLP ("P & P"), a New Jersey law firm specializing in debt collection representation and a debt collector as defined under 15 U.S.C. § 1692a(6); (2) New Jersey-based Palisades Collection, LLC ("Palisades"), also a debt collector as defined under 15 U.S.C. § 1692a(6) (and a client of P & P); and (3) Gerard Felt, an attorney for P & P. Compl. ¶¶ 3-6, 8. Parker alleges violations of the FDCPA and also asserts state law claims for equitable and legal fraud and intentional infliction of emotional distress.

Defendants now move for summary judgment, arguing, inter alia, that Parker's FDCPA claim is time-barred by the applicable one-year statute of limitations. Significantly, Parker admits that the statute of limitations has run as to the vast majority of defendants' potentially actionable conduct, but argues that the doctrine of equitable tolling operates to permit the case to proceed. Parker fails to establish a basis for this extraordinary remedy, as will be discussed below. Moreover, to the extent that any of Parker's claims are timely, the Court finds that Parker's evidence is insufficient for her federal claim to withstand summary judgment on the merits. Accordingly, the Court will grant defendants' motion for summary judgment on that claim. The Court denies defendants' motion for fees under the FDCPA as well. Finally, the Court declines to exercise continuing supplemental jurisdiction over Parker's state law claims, and dismisses those counts of the complaint without prejudice.²

II. STANDARD OF REVIEW

Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court must view the facts in the light most favorable to Parker, the non-moving party, and must accordingly draw all reasonable inferences that support her claims. See Gray v. York Newspapers, 957 F.2d 1070, 1078 (3d Cir.1992). The Court is not permitted to weigh evidence or make credibility determinations, Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir.1998), and may not grant defendants' motion if there is evidence sufficient to allow a reasonable jury to return a verdict for Parker, or if the factual dispute is one "that might affect the outcome of the suit under the governing law ...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Defendants' burden, however, "may be discharged by `showing' ... that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In opposing the motion, Parker may not rest upon mere allegations or denials, nor may she defeat the motion by presenting a mere scintilla of evidence in support of her position; instead, she must, "by affidavits or as otherwise provided in [Rule 56]," set forth "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson, 477 U.S. at 248, 252, 106 S.Ct. 2505.

III. FACTS & PROCEDURAL HISTORY³

At all times relevant here, Parker resided at 22 Crestwood Circle, Budd Lake, New Jersey, 07828-2536. In late 2005, defendants assert that Palisades acquired a portfolio of defaulted accounts from AT & T Wireless, which included an account bearing Parker's name and social security number. Def. Facts ¶ 4. In late January or early February 2006, Parker received correspondence from Palisades regarding this account. Compl. ¶ 10; Def. Facts ¶ 5; Pl. Facts ¶ 5. Neither party has submitted the exact dunning letter sent to Parker, but an exemplar of Palisades' standard "introduction letter" is attached as Exhibit A to the Affidavit of Andrew K. De Heer ("De Heer Aff."), submitted in opposition to defendants' motion. The exemplar reads in pertinent part:

Please be advised that your account has been sold to Palisades Collection, L.L.C. You are directed to address all future correspondence and payments concerning this account to this address:

Palisades Collection, L.L.C
PO Box 1244
Englewood Cliffs, NJ 07632

When permitted by law, we may report information about your account to credit bureaus. Consequently, late payments, missed payments, or other defaults on your account may be reflected in your credit report....

This is an attempt to collect a debt, and any information obtained will be used for that purpose. Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such verification or judgment. If you notify this office in writing after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor. All dispute correspondence should be mailed to 87 S Commerce Way suite 700, Bethlehem, PA 18017.

De Heer Aff. Ex. A. Parker alleges that, upon receipt of this correspondence, "she soon thereafter dispatched [it] back to Palisades Collection with a handwritten request for verification embossed on it." Pl. Facts ¶ 6. Defendants aver that "Palisades' records reveal no written response [from Parker] to that correspondence." Def. Facts ¶ 6; Affidavit of Monica Bey ("Bey Aff.") ¶ 9. Parker has not proffered her alleged verification request, and it does not appear in the record. Parker did not speak with anyone at Palisades. Def. Facts ¶¶ 7-8; Affidavit of Mitchell Williamson ("Williamson Aff.") Ex. 5, at 147:5-12.

In early June 2006, Palisades placed Parker's account for collection with its counsel, P & P. Def. Facts ¶ 9. Thereafter, P & P sent Parker via regular mail an initial notice letter, dated June 8, 2006, which showed a balance due of $1,545.99.⁴ Def. Facts ¶ 10; Affidavit of Steven P. McCabe ("McCabe Aff.") Ex. A. Parker disputes that she received this notice; she asserts that all P & P mailings to her address contained a nine-digit ZIP code without a hyphen between the fifth and sixth digits, per U.S. Postal Service regulations. Pl. Facts ¶ 10. In any event, P & P did not receive a response from Parker to the initial notice letter. Def. Facts ¶ 10.

On August 5, 2006, P & P filed a complaint on behalf of Palisades against Parker in New Jersey Superior Court, Morris County, Law Division, Special Civil Part (the "state action"). Def. Facts ¶ 11; Pl. Facts ¶ 11. Service was effected by the court on August 9, 2006 pursuant to N.J. Court Rule 6:2-3(d)(1). Def. Facts ¶ 12; McCabe Aff. ¶ 4, Ex. R; Pl. Facts ¶ 12.

On August 15, 2006, Parker twice called P & P regarding the state action pending against her; the record contains transcripts of each conversation, which the firm recorded. Def. Facts ¶ 14. Her first phone conversation was with paralegal Maranda Felton. She told Felton that "Palisades has sent me a letter and 4 months ago I responded saying that I dispute the validity of the debt, and now I get something from Court that I am being summoned?" McCabe Aff. Ex. S. After Felton obtained confirming information from Parker, the conversation continued in relevant part:

Felton: You said you sent Palisades a letter saying that you dispute the debt?

Parker: Yes. Four months ago.

Felton: Four months ago. Ok. Do you still have that letter you wrote?

Parker: I'll have to look for it.

Felton: Ok and what's the reason why you're disputing the bill?

Parker: Because I don't know what it is for.

Felton: It's for an AT & T bill. It's a wireless bill.

Parker: How can I owe $1600 on a wireless bill?

Felton: Ok. The account was opened back on January 22, 2002, and the last time you made a payment was November 12, 2003 so you have 3 years that have lapsed.

Parker: Three years? How can I be charged for [three] years if the account is closed?

Felton: Because if you didn't pay the bill, there's interest and late fees. The last time you made a payment was in November 2003.

Parker: Then the account was closed so why am I being charged up to now?

Felton: But you still owe the money on the account.

Parker: It's not $1600. I disputed the amount back then.

Felton: Ok. Well then what you can do is just follow the Summons and Complaint. I'll put a notation in here that you're disputing the balance.

Parker: So why am I being ... why don't you send me the proof of how much you served me for?

Felton: You have it in front of you, Madam, the Summons and Complaint. You just said you received that. It gives you a breakdown right on the sheet—the demand amount, attorney[']s fees.

Parker: No. It's got to be a letter. If you send me a letter and I respond ... if they sent me a letter and I respond ...

Felton: Madam, you have the letter in front of you[,] the Summons and Complaint. You just have to read it—

Parker: It shouldn't have gone this far. That's what I'm saying.

Felton: Madam, there's no reason for you to yell at me either. Well you need to follow the...