Nice little bit of Case law against our friends at JBC

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Read and enjoy kiddies!!!!!

http://www.ctd.uscourts.gov/Opinions/011405.JBA.Goins.pdf#search='jbc%20&%20associates'

Defendants move to strike several documents submitted by 1

plaintiff in support of her summary judgment motion, including

those that reference other lawsuits, JBC’s website, JBC’s

licensing application, a 1998 letter, and a West Virginia

subpoena. Because the Court has not relied on these documents in

reaching its decision, defendant’s motion to strike [Doc. # 53]

is DENIED as moot.

1

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Eveline Goins ::

v. : No. 3:03cv636 (JBA)

:

JBC & Associates, P.C. :

Jack H. Boyajian :

Marvin Brandon :

Ruling on Plaintiff’s Motion for Partial Summary Judgment

Plaintiff moves for partial summary judgment on liability

for violations of the Fair Debt Collection Practices Act

("FDCPA"), 15 U.S.C. § 1692e and § 1692f. For the reasons

discussed below, plaintiff’s motion is granted in part.

I. Background1

Plaintiff Eveline Goins ("Goins") is a consumer within the

meaning of the FDCPA, who allegedly owes a debt that is the

subject of collection efforts. See 15 U.S.C. § 1692a(3).

Defendant JBC & Associates, P.C. ("JBC") is a law firm located in

New Jersey, owned by defendant Jack H. Boyajian, an attorney

licensed to practice in California, and employing defendant

Marvan Brandon, an attorney licensed to practice in New Jersey.

Boyajian describes his occupation as "an attorney at law that

2

provides services to clients who have debts that are with

consumers that I am engaged in recovering for." Deposition of

Jack H. Boyjian, Jan. 27, 2004 [Doc. # 38] at 25:7-9. Although

defendants are not licensed as a consumer collection agency in

Connecticut, they have sent letters to Connecticut residents,

identifying themselves as attorneys at law, seeking collection of

debts.

In September 1997, JBC received a claim by Wilson Suede &

Leather for two returned checks written by plaintiff in the

amounts of $243.79 and $158.99. Goins filed suit against

defendants under the FDCPA in June 2002 challenging their

collection activity related to the debt allegedly owed to Wilson

Suede & Leather. See Goins v. JBC & Associates, P.C., et al.,

Civ. No. 3:02cv1069 (MRK). Goins commenced a second FDCPA action

against Brandon in August 2002, which also was related to the

collection of the Wilson Suede & Leather debt. See Goins v.

Brandon, Civ. No. 3:02cv1537 (AVC). In April 2002, plaintiff

filed for bankruptcy, defendants were made aware of the

bankruptcy filing, and JBC put a hold on further communications

with Goins. See Declaration of Jack H. Boyajian [Doc. # 49] at ¶

5.

Despite the hold on her account, on February 17, 2003, JBC

sent Goins another letter demanding payment of the debt allegedly

owed to Wilson Suede & Leather. The text of the February 17, 2003

3

letter that JBC sent to Goins states:

Re: Wilson Suede & Leather

File#: 562183

Driver’s License: 212895428

Balance: $10277.56

Dear Eveline J Goins:

You have obviously chosen to ignore our previous

communication demanding that you make restitution on an NSF

check(s) written to our above-referenced client(s). Our

client(s) may now assume that you delivered the check(s)

with intent to defraud, and may proceed with the allowable

remedies.

Since you have not tendered payment for the full amount of

the check(s) and service charge(s) within the 30 days

provided, pursuant to Connecticut General Statutes Section

52-565a, you may be subject to statutory penalties as

determined by the court, but in no event shall be greater

than the face value of the check or $400.00, whichever is

less, for a total amount of $10277.56.

You may wish to settle this matter before we seek

appropriate relief before a court of proper jurisdiction by

a qualified attorney by contacting Lori Brown at 800-241-

1510. If you qualify, you may also be able to use your

American Express, Discover, Mastercard or Visa credit card

to meet this obligation.

Very truly yours,

JBC & Associates, P.C.

Attorneys at law

This is an attempt to collect a debt by a debt collector.

Any information will be used for that purpose.

II. Standard

Summary judgment is proper "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

4

judgment as a matter of law." Fed. R. Civ. P. 56©. In moving

for summary judgment against a party who will bear the burden of

proof at trial, the movant's burden of establishing that there is

no genuine issue of material fact in dispute will be satisfied if

he or she can point to an absence of evidence to support an

essential element of the non-moving party's claim. See Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) ("The moving party

is 'entitled to a judgment as a matter of law' because the

nonmoving party has failed to make a sufficient showing on an

essential element of her case with respect to which she has the

burden of proof."). In order to defeat summary judgment, the

non-moving party must come forward with evidence that would be

sufficient to support a jury verdict in his or her favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) ("There

is no issue for trial unless there is sufficient evidence

favoring the nonmoving party for a jury to return a verdict for

that party.").

When deciding a motion for summary judgment, "’the

inferences to be drawn from the underlying facts . . . must be

viewed in the light most favorable to the party opposing the

motion.’" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587-588 (1986) (quoting United States v. Diebold, Inc.,

369 U.S. 654, 655 (1962)). However, "[w]hen a motion for summary

judgment is made and supported as provided in [the Federal

5

Rules], an adverse party may not rest upon the mere allegations

or denials of the adverse party's pleading." Fed. R. Civ. P.

56(e). Instead, the party opposing summary judgment must set

forth the specific facts in affidavit or other permissible

evidentiary form that demonstrate a genuine issue for trial. See

id.

III. Discussion

Plaintiff argues that the February 17, 2003 collection

letter sent by defendants to plaintiff violates the FDCPA because

(1) defendants were not licensed to collect as required by

Connecticut law; (2) defendants knew plaintiff was represented by

counsel; (3) the letter demanded considerably more than any

possible amount of the alleged debt; and (4) the letter

threatened to sue on a time-barred debt.

In opposing plaintiff’s summary judgment motion, defendants

make three arguments. First, they argue that this FDCPA suit,

the third that Goins has brought against them, violates the rule

against splitting causes of action, because they all arise from

the same collection effort that JBC undertook. Second, they

assert that the February 17, 2003 letter resulted from "a bona

fide error notwithstanding the maintenance of procedures

reasonably adapted to avoid any such error," 15 U.S.C. §

1692k©. Finally, they claim that Brandon and Boyajian were not

debt collectors in the transaction at issue in this case.

6

A. Duplicative Litigation

It is well-established that "a district court may stay or

dismiss a suit that is duplicative of another federal court suit"

in the exercise of its discretion, "as part of its general power

to administer its docket." Curtis v. Citibank, N.A., 226 F.3d

133, 138 (2d Cir. 2000). The determination of whether a suit is

duplicative is informed by the doctrine of claim preclusion.

"[T]he true test of the sufficiency of a plea of ‘other suit

pending’ in another forum s the legal efficacy of the first

suit, when finally disposed of, as ‘the thing adjudged,’

regarding the matters at issue in the second suit." Id. (quoting

United States v. The Haytian Republic, 154 U.S. 118 (1894)).

Thus, a suit is duplicative, and claims would be precluded, where

"the same or connected transactions are at issue and the same

proof is needed to support the claims in both suits or, in other

words, whether facts essential to the second suit were present in

the first suit." Id. at 139 (citation omitted); see also Maharaj

v. BankAmerica Corp., 128 F.3d 94, 97 (2d Cir. 1997) (claim

preclusion applies when a second suit "involves the same

‘transaction’ or connected series of transactions as the earlier

suit; that is to say, the second cause of action requires the

same evidence to support it and is based on facts that were also

present in the first.").

Claim preclusion, however, "does not preclude litigation of

7

events arising after the filing of the complaint that formed the

basis of the first lawsuit. . . . The plaintiff has no

continuing obligation to file amendments to the complaint to stay

abreast of subsequent events; plaintiff may simply bring a later

suit on those later-arising claims." Curtis, 226 F.3d at 139

(citing SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1464 (2d

Cir. 1996)). The instant suit is based on a single letter sent

by JBC to plaintiff in February 2003, after the two earlier

lawsuits had been commenced. Even if the letter were part of the

same debt collection activity that defendants had been engaged in

and which was the subject of plaintiff’s prior suits, the

February 17, 2003 letter constitutes a separate event which may

violate the FDCPA independently of prior communications from

defendants. Because the facts underlying this suit arose

subsequent to the filing of plaintiffs’ previous complaint and

are distinct from the facts underlying the previous suit, this

action is not duplicative.

Defendants argue that by bringing three separate actions,

plaintiff may obtain more damages than if she had brought a

single action based on all claimed violations. The FDCPA

provides that statutory damages "in the case of any action by an

individual" shall not "exceed[ ] $1,000," 15 U.S.C. §

1692k(a)(2)(A), and based on this language at least two circuits

have held that the FDCPA limits additional damages beyond the

8

actual damages sustained by a plaintiff to $1,000 per action, not

per violation. See Harper v. Better Business Services, Inc., 961

F.2d 1561, 1563 (11th Cir. 1992) (holding that additional damages

were limited to $1,000 per action because "[t]he FDCPA does not

on its face authorize additional statutory damages of $1,000 per

violation of the statute, of $1,000 per improper communication,

or of $1,000 per alleged debt. If Congress had intended such

limitations, it could have used that terminology."); Wright v.

Finance Service of Norwalk, Inc., 22 F.3d 647, 651 (6th Cir.

1994) ("Congress intended to limit "other damages" to $1,000 per

proceeding, not to $1,000 per violation."). There is no

prohibition in the FDCPA against separate lawsuits for separate

statutory violations of the FDCPA by the same defendant. Where,

as here, the subsequent action is not duplicative and would not

be barred under the claim preclusion doctrine, plaintiff may

avail herself of the serendipity of an additional FDCPA violation

by the same defendant subsequent to initiation of a prior lawsuit

and thereby avoid a per action damages limitation, as is

undoubtedly plaintiff’s strategy here.

B. Individual Defendants

Defendants also argue that Goins has failed to demonstrate

that Brandon and Boyajian acted as debt collectors, because the

February 17, 2003 letter at issue here is from "JBC & Associates"

and is not signed by either of the individual defendants. In an

Plaintiff moves to strike paragraph 3 of Brandon’s 2

affidavit "to the extent he contradicts earlier sworn statements

and is estopped by his judicial admissions that he is a debt

collector." Memorandum in Support of Plaintiff’s Motion to

Strike Declarations [Doc. # 59] at 2. Plaintiff points to

defendants’ Answer and response to interrogatories in related

cases, Goins v. Brandon, Civ. No. 3:02cv1537 (AVC) and Goins v.

JBC et al., Civ. No. 3:02cv1069 (MRK), in which Brandon is

acknowledged to be a debt collector involved in reviewing or

drafting the form of letters sent in conjunction with the

collection of plaintiff’s debt. Because these admissions do not

necessarily apply to Brandon’s conduct with respect to the

February 17, 2003 letter at issue in this case, it remains proper

to consider Brandon’s affidavit on summary judgment. Compare

Butty v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995).

9

affidavit submitted in opposition to summary judgment, Brandon

states that he "did not draft the letter, nor did I cause it to

be printed or mailed," and that he "had no personal involvement

in any effort to collect moneys from the plaintiff relating to

the letter in question or at or about the time of the letter in

question." Affidavit of Marv Brandon [Doc. # 50] at ¶¶ 3-4. In 2

reply, plaintiff notes that the February 17 letter refers to "our

previous communication," "[o]ur client(s)," and threatens that

"we" may seek appropriate relief in court. The use of the first

person plural, plaintiff argues, refers to both individual

defendants. Plaintiff also argues that because Brandon signed

prior letters to plaintiff and acknowledged acting as a debt

collector with regard to the prior communications with plaintiff,

the February 17 letter’s reference to "our previous

communication" clearly implicates Brandon. Plaintiff’s evidence

and inferences therefrom squarely conflict with Brandon’s

10

affidavit that he had nothing to do with preparing or sending the

letter in question. As a result, there exists a genuine issue of

material fact on whether Brandon was part of the plural "we"

involved in the debt collection effort at issue in this case, and

summary judgment in plaintiff’s favor against defendant Brandon

is inappropriate.

Boyajian, however, undisputedly acted as a debt collector in

this case. He is the owner of JBC, has acknowledged that in that

capacity he "provides services to clients who have debts that are

with consumers that I am engaged in recovering for," Deposition

of Jack H. Boyajian, Jan. 27, 2004 [Doc. # 38] at 25, and has

acknowledged in deposition testimony that he has sole control

over which debt collection letters are sent to consumers:

Q. If a letter went to Ms. Goins, you yourself would

decide which letter should go to her?

A. We use several different techniques to decide – I use

several different techniques to decide which letters go

to whom. . .

. . .

Q. Are your collectors allowed to generate or decide what

letters go out?

A. No.

Q. Who other than you decides what letters go out?

A. No one.

. . .

A. I think you are asking me, did I draft a letter,

because the variables are what they are with respect to

each named debtor, right? Are you asking me did I

formulate the letters as to what fields should go in

there? Right?

Q. Okay.

A. The answer is yes. I have been involved. To most of

the degree, I make the final decision on what letters

are sent out and what they contain.

11

Boyajian Deposition Transcript [Doc. # 38] at 37, 39-40.

While defendants’ Local Rule 56(a)(2) Statement denies that

Boyajian is a debt collector, and cites generally to Boyajian’s

Declaration as evidentiary support, the declaration itself does

not state that Boyajian is not a debt collector or was not

involved in preparing or sending out the February 17, 2003 letter

at issue in this case. See Declaration of Jack H. Boyajian [Doc.

# 49]. The Court therefore finds that Boyajian was engaged in

debt collection activity in this case, and was a debt collector

within the meaning of the FDCPA for purposes of this case. See

15 U.S.C. § 1692a(6) (defining debt collector as "any person who

uses any instrumentality of interstate commerce or the mails in

any business who regularly collects or attempts to collect,

directly or indirectly, debts owed or due or asserted to be owed

or due another.").

C. Merits

The FDCPA provides that "[a] debt collector may not use any

false, deceptive, or misleading representation or means in

connection with the collection of any debt." 15 U.S.C. § 1692e.

Section 1692 includes a non-exhaustive list of conduct that

violates the statute, including "(2) [t]he false representation

of--(A) the character, amount, or legal status of any debt;" and

"(5) [t]he threat to take any action that cannot legally be taken

or that is not intended to be taken." §§ 1692e(2)(A), 1692e(5).

12

"[A]n objective standard, measured by how the ‘least

sophisticated consumer’ would interpret the notice received from

the debt collector, is applied" in determining whether a

violation of the FDCPA has occurred. Russell v. Equifax, 74 F.3d

30, 34 (2d Cir. 1996). "The basic purpose of the leastsophisticated-

consumer standard is to ensure that the FDCPA

protects all consumers, the gullible as well as the shrewd."

Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). "This

least-sophisticated-consumer standard best effectuates the Act’s

purpose of limiting the ‘suffering and anguish’ often inflicted

by independent debt collectors." Id.

1. Amount of the Debt

Plaintiff first argues that defendants falsely represented

the amount of the debt plaintiff owed in the February 17, 2003

letter, in violation of 15 U.S.C. § 1692e(2)(A) (prohibiting

"[t]he false representation of--(A) the character, amount, or

legal status of any debt"); and 15 U.S.C. § 1692f(1) (prohibiting

"[t]he collection of any amount (including any interest, fee,

charge, or expense incidental to the principal obligation) unless

such amount is expressly authorized by the agreement creating the

debt or permitted by law."). The February 17, 2003 letter stated

that the "balance" was $10,277.56 and implied that Goins was

liable that amount in "restitution" based on "an NSF check(s)

written to our above-referenced client," Wilson Suede & Leather.

13

Defendants have acknowledged, however, that the debt owed to

Wilson Suede & Leather was based on two checks written by the

plaintiff during January 1996, totaling $402.78. See Response to

Plaintiffs’ Interrogatories [Doc. # 38] (listing dishonored

checks written by plaintiff referred to JBC for collection,

including the two January 1996 checks totaling $402.78 from

client "WSU"). Defendants now state that the $10277.56 figure

was based on 22 dishonored checks that Goins made out to various

merchants, totaling $4851.28, plus a check charge of $25.00 for

each check, plus damages equal to the face amount of each check,

which were the maximum available statutory damages JBC could

obtain in a civil lawsuit under Conn. Gen. Stat. § 52-565a©.

The amount JBC demanded in its February 17, 2003 letter is

grossly misleading. First, the February 17 letter specified only

a debt owed to Wilson Suede & Leather, and nowhere informs

plaintiff that the claim is also based on debts owed to other

merchants. Moreover, the letter claims an amount representing

not only the actual debt owed, but the maximum obtainable

statutory damages that could be awarded against plaintiff in a

civil action. This is impermissible, because "[t]he ‘amount of

debt’ provision is designed to inform the debtor . . . of what

the obligation is, not what the final, worst-case scenario could

be." Veach v. Sheeks, 316 F.3d 690, 693 (7th Cir. 2003)

(emphasis in original). While the letter obliquely informs

The plaintiff submitted with her reply brief additional 3

documentary support of her claim, including the March 18 denial

letter from the Connecticut Department of Banking. Although

submitted in reply, the Court finds it appropriate to consider

this evidence, as defendants have not disputed that they were

unlicensed, cannot claim surprise at the Department of Banking

letter, which was directed to defendants in response to their

14

plaintiff that the $10277.56 amount includes potential statutory

damages "as determined by the court," supra at 2-3, not actual

debt owed, it demands a "balance" of $10,277.56 in bold print at

the top of the letter, which under the least sophisticated

consumer standard reasonably implies that $10,277.56 is the

amount of plaintiff’s debt. Finally, although defendants have

now justified the $10,277.56 fee by including a $25.00 check

charge on each of the 22 dishonored checks claimed, defendants

did not disclose the $25.00 check charge to Goins in the February

17 letter. Accordingly, the undisputed evidence shows that the

February 17 letter falsely represents the amount of debt owed.

2. License

JBC was not licensed in Connecticut as a consumer collection

agency at the time defendants sent the February 17, 2003 debt

collection notice to plaintiff, and their application for a

license has since been denied. See Letter from John P. Burke,

Banking Commissioner, State of Connecticut, to Jack Boyajian,

Mar. 18, 2004, [Doc. # 60] (denying application for consumer

collection agency license that JBC had filed on November 5,

2002). Although the February 17, 2003 letter does not claim 3

application, and have not sought leave to respond to the

evidence. See Bayway Refining Co. v. Oxygenated Marketing and

Trading A.G., 215 F.3d 219, 227 (2d Cir. 2000).

A license is required under Connecticut law if the 4

collection agency "(2) has its place of business located outside

this state and collects from consumer debtors who reside within

this state for creditors who are located within this state; or

(3) has its place of business located outside this state and

regularly collects from consumer debtors who reside within this

state for creditors who are located outside this state." Conn.

Gen. Stat. § 36a-801(a). Here, there is no dispute that Goins is

a Connecticut resident, and that JBC is a firm located outside of

the state. While defendants argue in their opposition to

plaintiff’s motion for partial summary judgment that plaintiff

15

that JBC is licensed in Connecticut, plaintiff argues that

defendants’ unlicensed attempt to collect a debt from plaintiff,

violates 15 U.S.C. § 1692e(5) (barring any "action that cannot

legally be taken"); § 1692e(9) (prohibiting misrepresentation of

document’s state authorization or approval); and § 1692f

(prohibiting the use of "unfair or unconscionable means to

collect or attempt to collect any debt."). See also Clomon v.

Jackson, 988 F.2d 1314, 1320 (2d Cir. 1993) ("[T]he use of any

false, deceptive, or misleading representation in a collection

letter violates § 1692e regardless of whether the representation

in question violates a particular subsection of that provision.")

Connecticut requires consumer collection agencies acting

within the state to be licensed. See Conn. Gen. Stat. § 36a-

801(a) ("No person shall act within this state as a consumer

collection agency without a consumer collection agency

license."), and prohibits a collection agency from, among other 4

has not provided any evidentiary support showing where JBC’s

client-creditors are located, and that it remains disputed

whether JBC "regularly collects" from Connecticut consumers, the

Court finds that plaintiff’s unchallenged evidence establishes

JBC’s need for a Connecticut license. Defendants have

acknowledged in their responses to plaintiffs’ interrogatories

that they used form letters aimed at Connecticut debtors from

2001 to the present. See [Doc. # 38]; see also Deposition

Transcript of Jack Boyajian, Jan. 27, 2004 [Doc. # 60] at 71

(explaining bar codes on form letters that reflect "that the

transaction was in Connecticut"). Further, the State of

Connecticut Department of Banking’s March 18, 2004 letter denying

JBC a license notes that "it appears that [JBC] has been acting

as a consumer collection agency in Connecticut without a license

in violation of Section 36a-801(a) of the Connecticut General

States. Indeed, between December 2002 and February 2004, 9

Connecticut residents filed with the Division complaints against

[JBC] alleging harassment in connection with the collection of

debts and, in some cases, disputing the debts." Letter from John

P. Burke, Banking Commissioner to Jack Boyajian, Mar. 18, 2004

[Doc. # 60, Ex. P].

16

things, "institut[ing] judicial proceedings on behalf of others."

Conn. Gen. Stat. § 36a-805(a)(1). Considering these provisions

in Gaetano v. Payco of Wisconsin, Inc., 774 F.Supp. 1404 (D.

Conn. 1990), the district court held that a debt collection

agency that was unlicensed by the state of Connecticut, which

demanded payment of the debt and stated that it would use all

means to enforce collection, "violated § 1692e(5) of the FDCPA by

threatening to take action that legally could not be taken." Id.

at 1415. Gaetano has been followed by several other district

courts. See, e.g. Sibley v. Firstcollect, Inc., 913 F.Supp. 469,

471 (M.D. La.1995) (finding violation of § 1692e(5) when

unlicensed debt collector attempted to collect a debt from

consumer); Russey v. Rankin, 911 F.Supp. 1449, 1459 (D. N.M.

17

1995); Kuhn v. Account Control Technology, Inc., 865 F.Supp.

1443, 1451-52 (D. Nev. 1994).

Not all courts have adopted a categorical rule that an FDCPA

violation occurs whenever an unlicensed debt collector sends out

any debt collection notice, and instead some have looked to the

content of the notice. Most notably, in Wade v. Regional Credit

Association, 87 F.3d 1098 (9th Cir. 1996), the Ninth Circuit

found that the defendant’s unlicensed debt collection activity

was not a "threat to take action that could not legally be taken"

in violation of FDCPA § 1692e(5). The single debt collection

agency notice to the plaintiff stated:

WHY HAVEN’T WE HEARD FROM YOU? OUR RECORDS STILL SHOW THIS

AMOUNT OWING.

If not paid TODAY, it may STOP YOU FROM OBTAINING credit

TOMORROW. PROTECT YOUR CREDIT REPUTATION. SEND PAYMENT

TODAY.

. . .

DO NOT DISREGARD THIS NOTICE. YOUR CREDIT MAY BE ADVERSELY

AFFECTED.

Wade, 87 F.3d at 1099.

The notice also stated: "This has been sent to you by a

collection agency and is an attempt to collect a debt and any

information obtained will be used for that purpose." Id. The

Court of Appeals concluded that "body of the notice was

informational, notifying Wade that failure to pay could adversely

affect her credit reputation. There was no threat to sue. The

least sophisticated debtor would construe the notice as a

prudential reminder, not as a threat to take action." Id. at

18

1100. The court also found that the language to the effect that

the notice was an attempt to collect a debt was required by the

FDCPA, and was "also informational," not threatening. Because

the notice could not be characterized as threatening to take

specific action, the court found no FDCPA violation. Similarly,

in Ferguson v. Credit Management Control, Inc., 140 F. Supp. 2d

1293, 1302 (M.D. Fla. 2001), the district court determined no

violation of § 1692e(5) had occurred where the debt collection

agency "did not hold itself out as a licensed debt collector in

Florida. It did not threaten to take legal action if plaintiff

did not respond to the notice. Moreover, the only language that

Ferguson argues is ‘threatening’ is required to be in the notice

by the FDCPA."

Here, in contrast to Wade and Ferguson, the debt collection

notice contained an unequivocal threat to take action, stating,

"[y]ou may wish to settle this matter before we seek appropriate

relief before a court of proper jurisdiction by a qualified

attorney." See February 17, 2003 letter [Doc. # 36] (emphasis

added). The letter also refers to "our" prior "communication

demanding . . . that you make restitution," states that JBC’s

clients "may now assume that you delivered the check(s) with

intent to defraud," and refers to "statutory penalties as

determined by the court." The letter’s references to statutes,

attorneys, court, settlement, and restitution, augmented by its

19

aggressive, accusatory tone (e.g. "You have obviously chosen to

ignore our previous communication"), bolster its syntax as a

threat to sue the plaintiff on the debt. In sum, the letter is

far from Wade’s "prudential reminder" to pay an outstanding debt.

On the undisputed facts of this case, the Court concludes that

the letter violates the FDCPA’s prohibition of threats to take

action that cannot legally be taken. See 15 U.S.C. § 1692e(5).

3. Improper Threat of Litigation

Plaintiff further argues that JBC’s threat to "seek

appropriate relief before a court of proper jurisdiction"

violated the FDCPA because a suit on the January 1996 NSF checks

was time-barred by the applicable six-year statute of limitations

at the time the February 2003 letter was written. Although a

debt collector may seek to collect on a time-barred debt, that

debt collector may not threaten litigation where such suit would

be improper. Cf. Freyermuth v. Credit Bureau Serv. Inc., 248

F.3d 767 (8 Cir. 2001) ("n the absence of a threat of th

litigation or actual litigation, no violation of the FDCPA has

occurred when a debt collector attempts to collect on a

potentially time-barred debt that is otherwise valid.").

As discussed above, the February 17 letter at issue here

unambiguously threatened litigation. Defendants respond by

arguing only that the statute of limitations did not bar them

from pursuing litigation against Goins because the statute of

20

limitations is not a jurisdictional bar, but merely an

affirmative defense that can be waived. As the statute of

limitations would be a complete defense to any suit, however, the

threat to bring suit under such circumstances can at best be

described as a "misleading" representation, in violation of §

1692e. As an officer of the court, Boyajian has an obligation to

represent to the court to the best of his knowledge, "after an

inquiry reasonable under the circumstances," that the claims

presented are "warranted by existing law or by a nonfrivolous

argument for the extension, modification, or reversal of existing

law or the establishment of new law." See Fed. R. Civ. P. 11; see

also State v. Turner, 267 Conn. 414, 430 (2004) (defining

frivolous action as one in which "the lawyer is unable either to

make a good faith argument on the merits of the action taken or

to support the action taken by a good faith argument for an

extension, modification or reversal of existing law.").

Sanctions therefore would be appropriate if an attorney knowingly

filed suit on an undisputedly time-barred claim. See Steinle v.

Warren, 765 F.2d 95 (7th Cir. 1985) (awarding attorneys fees to

opposing party and imposing Rule 11 sanctions where attorney knew

claim was time-barred). That the statute of limitations is an

affirmative defense does not relieve defendants of their

professional responsibility, when they do not dispute the

applicability or viability of the defense. Because defendants

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were not entitled to sue in such circumstances, the threats to

sue in the February 17 letter are improper. See Kimber v. Federal

Financial Corp., 668 F. Supp. 1480 (M.D. Ala. 1987) (finding

FDCPA violation where attorney threatened to sue on a time-barred

claim).

4. Communication with Consumer Known to be Represented by

Counsel

Finally, plaintiff argues that defendants improperly

communicated directly with her, having received formal

notification that she was represented by counsel because she had

filed a lawsuit against defendants for their collection efforts

in 2002. Under 15 U.S.C. § 1692c(a)(2), a debt collector "may

not communicate with a consumer in connection with the collection

of any debt . . . if the debt collector knows the consumer is

represented by an attorney with respect to such debt and has

knowledge of, or can readily ascertain, such attorney’s name and

address, unless the attorney fails to respond within a reasonable

period of time to a communication from the debt collector or

unless the attorney consents to direct communication with the

consumer." As the Federal Trade Commission commentary on this

provision explains, "f a debt collector learns that a consumer

is represented by an attorney in connection with the debt, even

if not formally notified of this fact, the debt collector must

contact only the attorney and must not contact the debtor."

Federal Trade Commission, Statements of General Policy or

22

Interpretation Staff Commentary on the Fair Debt Collection

Practices Act, 53 Fed. Reg. 50097, 50104 (1988).

Goins’ 2002 lawsuit concerned debt collection activity

regarding a $402.78 debt owed to Wilson Suede and Leather, a debt

which also formed a partial basis for the amount claimed in the

February 17, 2003 letter. See Response to Plaintiffs’

Interrogatories [Doc. # 38]; Goins v. JBC & Associates, P.C., et

al., Civ. No. 3:02cv1069 (MRK), 2004 WL 2063562 (D. Conn. Sept.

3, 2004). As defendants do not dispute that the 2002 lawsuit

gave them sufficient notice that plaintiff was represented by

counsel with respect to the debt on which they sought to collect

through the February 17, 2003 letter, or that the February 17,

2003 letter was sent directly to plaintiff, they are liable under

§ 1692c(a)(2).

D. Bona Fide Error Defense

Defendants defend their actions in this case primarily by

arguing that the February 17, 2003 letter was the result of an

unintentional error. In support, defendants state that when JBC

learned of Goins’ bankruptcy, a hold was placed on her account

pursuant to JBC’s regular procedures for debtors in bankruptcy or

who are represented by counsel. In a Declaration dated May 27,

2004, Boyajian states that "JBC has standardized procedures in

place to avoid further communications with the consumer when JBC

learns that the consumer is represented by counsel or has filed

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for bankruptcy protection. Upon receipt of notice of such

representation or filing, codes reflecting such representation or

filing are entered into the consumer’s file, notifying collectors

or attorneys working the file that such representation or filing

has taken place. The collectors and/or attorneys are trained and

informed that under such circumstances, further communication

with the consumer is prohibited. No further collection efforts

were to occur as to Ms. Goins master account." Declaration of

Jack H. Boyajian, May 27, 2004 [Doc. # 49] at ¶ 5. Boyajian

states that the February 17, 2003 letter was "triggered by a

later, separate placement by a JBC client of additional bad

checks written by Ms. Goins. This new placement resulted in the

creation of a separate new master account number. Due to an

imperfection in the computer program or an inadvertent creation

of a merged account, the computer issued a letter which included

information, not only about the newly placed checks, but swept in

information concerning the prior placements as well." Id. at ¶

7.

Section 1692k© provides that a "debt collector may not be

held liable in any action brought under this subchapter if the

debt collector shows by a preponderance of evidence that the

violation was not intentional and resulted from a bona fide error

notwithstanding the maintenance of procedures reasonably adapted

to avoid any such error." "Because the Act imposes strict

24

liability, a consumer need not show intentional conduct by the

debt collector to be entitled to damages. However, a debt

collector may escape liability if it can demonstrate by a

preponderance of the evidence that its violation [of the Act]

[satisfies the requirements of 1692k©]." Russell v. Equifax,

74 F.3d 30, 33-34 (2d Cir. 1996).

Defendants have not met their burden here. Although

Boyajian’s declaration establishes that hold procedures were in

effect at JBC the time the February 17, 2003 letter was sent, and

that JBC received claims for new debts plaintiff owed subsequent

to placing a hold on her account, the undisputed fact remains

that the February 17 letter (1) sought to collect against a

debtor known to have a bankruptcy proceeding pending, and (2)

incorporated the earlier debts on which plaintiff was known to be

represented by counsel. Thus defendants have not demonstrated

the existence of hold procedures which were operative, and cannot

ascribe their error as occurring despite maintenance of

procedures to avoid it. As Boyajian acknowledges, the computer

system did not simply create a new account for Goins based on the

new claims, it merged old information from her "master" account.

The letter selected to be sent, moreover, referred to "prior

communications" that had gone unanswered. And like the previous

communications, the February 17, 2003 letter sought to collect on

the debt owed to Wilson Suede & Leather. Thus, far from being

Plaintiff moves to strike various parts of Boyajian’s 5

declaration, arguing that the statements are conclusory or do not

state admissible facts. As the Court has concluded that

defendants cannot prevail on their bona fide error defense,

plaintiffs’ motion to strike [Doc. # 59] is DENIED as moot.

25

excused as generated in response to a new claim, the letter

referred to a preexisting debt, the attempted collection of which

was the subject of two lawsuits against defendants in which

plaintiff was represented by counsel. Boyajian offers no

explanation about how the procedures were reasonably adapted to

avoid merging "held" accounts, or how the selection of a form

letter referring to "prior communications" could reflect

"maintenance of procedures reasonably adapted to avoid"

processing "held" accounts. Indeed, defendants make no claim

that the content of the letter was a bona fide error. The Court

therefore concludes that defendants cannot prevail as a matter of

law on their bona fide error defense. 5

E. CUPTA Claim

Plaintiff also seeks summary judgment on her claim under the

Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen.

Stat. § 42-110b. Section 42-110b(a) prohibits persons from

engaging in "unfair methods of competition and unfair or

deceptive acts or practices in the conduct of any trade or

commerce." To bring an action under CUTPA, however, plaintiff

must demonstrate that she has "suffer[ed] any ascertainable loss

of money or property, real or personal, as a result of the use or

26

employment of a method, act or practice prohibited by section 42-

110b." Conn. Gen. Stat. § 42-110g(a). Defendants oppose

plaintiff’s CUTPA claim on grounds that she cannot satisfy

CUTPA’s requirement of demonstrating "ascertainable loss."

"The ascertainable loss requirement is a threshold barrier

which limits the class of persons who may bring a CUTPA action

seeking either actual damages or equitable relief." Hinchliffe

v. American Motors Corp., 184 Conn. 607, 615 (1981). The

"ascertainable loss" requirement does not require that a

plaintiff prove a specific amount of actual damages. As the

Connecticut Supreme Court has explained, "‘[a]scertainable’ means

‘capable of being discovered, observed, or established,’" while

"‘[l]oss’ has been held synonymous with deprivation, detriment

and injury. It is a generic and relative term." Id. at 613

(citations omitted). Thus, "[w]henever a consumer has received

something other than what he bargained for, he has suffered a

loss of money or property. That loss is ascertainable if it is

measurable even though the precise amount of the loss is not

known." Id. at 614. Moreover, "nder CUPTA, there is no need

to allege or prove the amount of the ascertainable loss." Id.

CUPTA specifically permits equitable relief, and thus "expressly

contemplates plaintiffs’ judgments which do not include an award

of money damages." Id. at 618. These comprehensive remedies

[are] intended "to create a climate in which private litigants

27

help to enforce the ban on unfair or deceptive trade practices or

acts." Id.

Under this framework, the Connecticut Supreme Court has

found an ascertainable loss where plaintiffs purchased a vehicle

that had been advertised as a "full-time four-wheel drive"

vehicle, but was in fact "something less desirable than a fulltime

four wheel drive," Hinchliffe, 184 Conn. at 619, even though

plaintiffs were not able to attach a particular dollar amount to

their injury from defendant’s deception. The Connecticut Supreme

Court has also found ascertainable loss where there was evidence

that the defendants’ use of surveillance cameras pointed at

plaintiffs’ exotic dance clubs "caused prospective patrons to

refrain from entering plaintiffs’ establishments," despite a lack

of evidence of lost profits. Service Road Corp. v. Quinn, 241

Conn. 630, 640-41 (1997). In A. Secondino and Son, Inc v.

LoRicco, 215 Conn. 336 (1990), however, the defendant’s CUTPA

counterclaim failed because although he demonstrated that the

contractor’s failure to provide a written contract containing

notice of the right to cancel violated the Home Solicitation

Sales Act, an unfair trade practice under CUTPA, he "fail[ed] to

present any evidence concerning the nature and extent of the

injury sustained." Id. at 344. Similarly, in Rizzo Pool Co. v.

Del Grosso, 232 Conn. 666 (1995), the ascertainable loss

requirement was not met where there was no injury shown to result

28

from defendant’s "misrepresentations regarding the effect of the

water level of the pond on the price of the swimming pool," and

plaintiffs did not claim to have "suffered an ascertainable loss

under CUTPA by virtue of the fact that the plaintiff's failure to

install the swimming pool deprived them of the benefit of their

bargain." Id. at 684-85 & n.30 (citation omitted).

Plaintiff has not shown her entitlement to summary judgment

on this count, because, as in A. Secondino and Rizzo, she has not

provided any basis for a finding that she was ascertainably

injured as a result of defendant’s February 17, 2003 letter. At

best, she has demonstrated a potential injury, resulting from

defendants’ attempt to collect from her an amount far exceeding

the actual obligation owed. Plaintiff, however, has not

identified and the Court has not found any authority supporting

the position that threatened rather than actual "deprivation,

detriment or injury" satisfies the "ascertainable loss"

requirement. As construed by the Connecticut Supreme Court and

as the plain meaning of the phrase implies, "ascertainable loss"

refers to some injury that has occurred, and is therefore

"measurable." Hinchliffe, 184 Conn. at 614.

It is possible to speculate that a letter of the kind sent

to plaintiff could cause injury in a variety of ways. A consumer

may respond to the letter by actually paying an amount far

greater than what is actually owed, or may incur other expenses

In her memorandum in support of her motion for partial 6

summary judgment, plaintiff states that she "has ascertainable

loss when she got a letter that violated state and federal laws,"

but offers no explanation of how receipt of such a letter caused

a measurable loss. Plaintiff also argues in her memorandum of

law that "[h]er monetary loss, to be ascertainable, may be as

little as a 33¢ stamp, a toll call, or gas or parking to visit an

attorney." Plaintiff’s Memorandum in Support of Partial Summary

Judgment [Doc. # 37] at 15. Plaintiff has presented no evidence

that she experienced any of these losses, however. The affidavit

that she submitted in support of her motion is silent on the

issue of injury or loss.

29

in challenging the debt collection effort. The debt collection

practice may unfairly damage the consumer’s credit rating, or may

cause the consumer emotional distress. The threshold of showing

a measurable loss is not great. Plaintiff, however, has not set

forth any evidence demonstrating a loss of any kind. 6

Accordingly, summary judgment on plaintiff’s CUTPA claim is

denied.

30

IV. Conclusion

For the foregoing reasons, plaintiff’s Motion for Partial

Summary Judgment [Doc. # 35] is GRANTED in part as to plaintiffs’

FDCPA claims against defendants JBC & Associates, P.C. and Jack

H. Boyajian. Plaintiff’s motion is DENIED as to plaintiffs’

CUTPA claim and her FDCPA claims against defendant Marvin

Brandon. Defendants’ Motion to Strike [Doc. # 53] is DENIED as

moot. Plaintiff’s Motion to Strike Portions of Boyajian and

Brandon Declarations [Doc. # 58] is DENIED.

IT IS SO ORDERED.

/s/

Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut, this 14th day of January, 2004.