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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision

Somin v. Total Community Management Corp.

Plaintiff Ilene Somin initiated an action alleging wrongful mortgage foreclosure and violations of the Fair Debt Collection Practices Act (FDCPA) against Washington Mutual Bank and Shapiro & DiCaro, LLP, alongside various state law claims against multiple defendants. The primary defendants, Washington Mutual Bank and Shapiro & DiCaro, LLP, moved to dismiss the FDCPA claims. They argued the claims were barred by the FDCPA's one-year statute of limitations and that Washington Mutual Bank was not a 'debt collector' as defined by the Act. The court granted the motions to dismiss, concluding that Somin's FDCPA claims were indeed time-barred, as her interactions with the defendants concluded more than a year before the lawsuit began. Furthermore, the court determined that Washington Mutual Bank, as a creditor collecting its own debt, did not fall under the FDCPA's definition of a debt collector. Consequently, the court dismissed the federal FDCPA claims and declined to exercise supplemental jurisdiction over the remaining state law claims, resulting in the dismissal of the entire case.

Mortgage ForeclosureFDCPAStatute of LimitationsEquitable TollingDebt CollectionDismissalFederal JurisdictionState Law ClaimsCreditorSuccessor in Interest
References
23
Case No. MISSING
Regular Panel Decision

Williams v. Citibank, N.A.

James Williams, a pro se plaintiff, filed claims against Citibank N.A. and Citibank (South Dakota) N.A., alleging unlawful debt collection practices under the Fair Debt Collection Practices Act (FDCPA), breach of contract, and fraud. The claims stemmed from actions related to two credit card accounts, where Plaintiff contended an inadvertent 50-cent underpayment led to a significant APR increase and aggressive collection efforts. Defendants moved to dismiss all claims except for breach of contract. The Court dismissed the federal FDCPA claim, ruling that the Citibank entities were creditors and not 'debt collectors' as defined by the FDCPA. Plaintiff was granted leave to amend his complaint to attempt to establish the applicability of the FDCPA’s 'false name exception'. The remaining state law claims were dismissed without prejudice, with potential reconsideration if a viable FDCPA claim is presented.

FDCPADebt CollectionCreditorMotion to DismissPro Se PlaintiffBreach of ContractFraudFederal JurisdictionState Law ClaimsAmended Complaint
References
37
Case No. MISSING
Regular Panel Decision

Missionary Sisters of the Sacred Heart, Inc. v. Dowling

This nonpayment proceeding addresses respondents Robert and Jessica Dowling's motion to dismiss, alleging petitioner Missionary Sisters of the Sacred Heart, Inc. failed to comply with the Fair Debt Collection Practices Act (FDCPA). The court examined whether the rent demand and the petition constituted 'communications' under the FDCPA, ultimately concluding they did not violate the Act's provisions in this context. Furthermore, the court determined that even if an FDCPA violation occurred, it would not serve as a defense to the underlying eviction proceeding. The decision also rejected the argument that state law (RPAPL) is preempted by federal FDCPA, finding that the two can be reconciled. Consequently, the court denied the respondents' motion to dismiss in its entirety.

FDCPADebt CollectionNonpayment ProceedingRent DemandMotion to DismissStatutory PenaltiesPreemption DoctrineCreditor-Debtor RelationsSummary EvictionFormal Pleadings
References
22
Case No. MISSING
Regular Panel Decision

Larsen v. JBC Legal Group, P.C.

The plaintiff, Kimberley Larsen, filed a class action lawsuit against JBC Legal Group, P.C., and other defendants under the Fair Debt Collection Practices Act (FDCPA). Larsen alleged that the defendants violated the FDCPA by sending a misleading collection letter attempting to collect debts from New York consumers. The plaintiff defined two classes, Class A and Class B, based on different alleged FDCPA violations. Larsen moved for permission to move simultaneously for summary judgment and Rule 23(b)(3) class certification, or alternatively, for Rule 23(b)(2) class certification, primarily to shift the cost of notice to the defendants. The court denied the plaintiff's motion for simultaneous summary judgment and Rule 23(b)(3) class certification, citing Supreme Court precedent that typically requires the plaintiff to bear the cost of notice. The court also indicated that Rule 23(b)(2) certification is unlikely to be granted in FDCPA cases in the Second Circuit.

FDCPAClass ActionSummary JudgmentClass CertificationRule 23(b)(3)Rule 23(b)(2)Cost of NoticeFair Debt CollectionFederal Rules of Civil ProcedureDebt Collection Practices
References
18
Case No. MISSING
Regular Panel Decision

Okyere v. Palisades Collection, LLC

Plaintiff Johnson Poku Okyere brought claims against Todd Houslanger, Houslanger and Associates, PLLC (Houslanger Defendants), Palisades Collection, LLC, and Ronald Moses (a New York City Marshal) for violations of the Fair Debt Collection Practices Act (FDCPA) and conversion. The defendants filed motions to dismiss the claims. The court found that Okyere's allegations regarding the failure to file a notice of substitution of attorneys and the retention of funds did not constitute FDCPA violations, as the statute's relevant section prohibits threats of illegal action, not the action itself, and misrepresentations must be made to the debtor directly. Consequently, the FDCPA claims were dismissed with prejudice. The court declined to exercise supplemental jurisdiction over the remaining state law conversion claims, dismissing them without prejudice.

FDCPAFair Debt Collection Practices ActDebt CollectionConversionMotion to DismissRule 12(b)(6)Rule 12(c)Vicarious LiabilityAttorney-Client RelationshipState Law Claims
References
64
Case No. MISSING
Regular Panel Decision
Oct 17, 2012

Douyon v. NY Medical Health Care, P.C.

Plaintiff Gabrielle Douyon sued Seymour Schneider, N.Y. Medical Health Care, P.C., Faraidoon Daniel Golyan, M.D., and Kourosh Golyan, alleging unfair debt collection practices under the FDCPA and NY GBL § 349, along with intentional infliction of emotional distress and negligence. The lawsuit stemmed from attempts to collect an alleged medical debt following Douyon's emergency heart surgery performed by Dr. Golyan. Both parties sought summary judgment. The court granted Plaintiff partial summary judgment on FDCPA violations related to statutory disclosures and a threatening voicemail. However, many other FDCPA and NY GBL claims were denied due to factual disputes, and the intentional infliction of emotional distress claim was dismissed for lack of medical evidence, with negligence claims partially allowed to proceed on the basis of fear for physical safety.

Fair Debt Collections Practices ActNew York General Business Law § 349Debt CollectionSummary JudgmentEmotional DistressNegligenceAgency RelationshipVicarious LiabilityFreelance Debt CollectorUnfair and Deceptive Practices
References
105
Case No. MISSING
Regular Panel Decision

Aslam v. Malen & Associates, P.C.

This case concerns Mohammad Aslam's complaint against Malen & Associates for violations of the Fair Debt Collection Practices Act (FDCPA). After a settlement agreement, the court was tasked with determining reasonable attorneys' fees for the plaintiff's counsel, James Bahamonde. The court applied the 'presumptively reasonable fee' method, analyzing Bahamonde's hourly rate and the hours reasonably expended. The court made several reductions to the requested hours for tasks such as researching jury instructions, preparing exhibits, preparing billing records, and trial preparation. Ultimately, the court awarded Bahamonde $63,927.50 in attorneys' fees and $1,162.50 in costs, affirming the plaintiff's significant success in the FDCPA claim.

FDCPAAttorneys' FeesSettlement AgreementStatutory DamagesActual DamagesHourly RateLodestar MethodSecond CircuitConsumer ProtectionDebt Collection
References
17
Case No. MISSING
Regular Panel Decision

United States v. Carney

The United States initiated this action to collect federal tax assessments against Thomas Carney, Jr. for unpaid withholding taxes from Carney Electric Construction Corporation. The government also sought to nullify fraudulent conveyances of two properties from Thomas Carney, Jr. to his wife, Arlene Carney, and to foreclose on federal tax liens. The defendants moved to dismiss, asserting the action was time-barred under the Federal Debt Collection Procedure Act (FDCPA) and citing deficient service of process. The court denied the defendants' motion, ruling that the FDCPA does not restrict the government's ability to collect taxes under state law and that the action was timely under the Internal Revenue Code's statute of limitations. The court further determined that the defect in the summons did not prejudice the defendants, thus maintaining personal jurisdiction.

Tax collectionFraudulent conveyancesFederal tax liensStatute of limitationsFederal Debt Collection Procedure ActService of processPersonal jurisdictionMotion to DismissInternal Revenue CodeNew York Debtor and Creditor Law
References
13
Case No. MISSING
Regular Panel Decision

Miller v. Midpoint Resolution Group, LLC

Plaintiff Sharon Miller sued Midpoint Resolution Group, LLC for multiple violations of the Fair Debt Collection Practices Act (FDCPA), alleging false threats, unauthorized electronic debits, and threats of criminal prosecution. The case, initially referred for pre-trial matters, eventually proceeded to a bench trial to determine damages and attorney's fees. The court found Midpoint liable for repeated FDCPA violations and awarded Ms. Miller $500 in actual damages, $1,000 in statutory damages, $7,000 in attorney's fees, and $1,132.50 in costs, totaling $9,632.50. The court noted the plaintiff's limited success on her claim for substantial actual damages but emphasized the importance of a fee award sufficient to deter similar abusive debt collection practices in the future.

Fair Debt Collection Practices ActFDCPA ViolationsActual DamagesStatutory DamagesAttorney's FeesEmotional DistressDebt Collection AbuseUnauthorized DebitsThreats of Criminal ProsecutionMagistrate Judge Decision
References
15
Case No. MISSING
Regular Panel Decision

Eastman v. Baker Recovery Services (In Re Eastman)

Shane E. Eastman, a Chapter 7 bankruptcy debtor, initiated an adversary proceeding against Baker Recovery Services and the Law Offices of Juana Trejo. He sought a declaratory judgment, an injunction, and damages, alleging that the defendants violated his discharge injunction, the FDCPA, TDCA, DTPA, and committed intentional infliction of emotional distress by attempting to collect a discharged debt. The court ruled that the defendants indeed violated the Bankruptcy Code's discharge injunction, the FDCPA, and the TDCA, particularly through their actions in filing a lawsuit in California. Consequently, the court granted Eastman's request for an injunction, awarded statutory damages of $1,000, and ordered the defendants to pay attorney's fees and costs. However, Eastman's claims for actual damages were denied due to insufficient proof, and his DTPA and tort claims were dismissed, the former for lack of standing and the latter for failing to meet the required intent threshold.

Bankruptcy DischargeDebt CollectionFDCPA ViolationTDCA ViolationDischarge InjunctionStatutory DamagesAttorneys' FeesDeclaratory JudgmentDefault JudgmentAdversary Proceeding
References
39
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