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Garcia v. Law Offices Howard Lee Schiff, P.C.

United States District Court, D. Connecticut

February 21, 2018

LUIS GARCIA, Plaintiff,


          Victor A. Bolden United States District Judge.

         Luis Garcia (“Plaintiff”) sued the Law Offices of Howard Lee Schiff, P.C. (“Defendant” or “Schiff”), alleging violations of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), because of a collection letter concerning the balance due on Mr. Garcia's First Premier Bank Visa credit card. Schiff has moved for summary judgment, arguing that Mr. Garcia failed to timely respond to a request for admission, those facts are deemed admitted and that therefore there remain no disputes of material fact. Mr. Garcia subsequently moved to withdraw his admissions under Federal Rule of Civil Procedure 36(b).

         For the reasons state below, Garcia's motion is GRANTED. Schiff's motion is therefore DENIED as premature and without prejudice to renewal.


         A. Factual Allegations

         Mr. Garcia lives in Waterbury, Connecticut. See Compl. ¶ 4, ECF No. 1. Schiff, a law firm, located in East Hartford Connecticut, is a “debt collector” under 15 U.S.C. § 1692(a)(6) and the FDCPA. Id. ¶ 5.

         Mr. Garcia alleges that he received a collection letter from Schiff regarding his First Premier Bank account. Id. ¶ 9. The letter stated that his account was “being serviced by Law Offices of Howard Lee Schiff, P.C.” The letter stated that the “charge off balance” was $633.94 and the “current balance” was $565.46, although the letter also listed “$0” next to a section labelled “post charge-off payments & credits.” Compl. ¶¶ 10-11; see also Letter, Mot. to Dismiss, Ex. 1, ECF No. 11. Mr. Garcia alleges that the Letter “ma[de] it impossible for a consumer to know how much is owed and if the debt will be considered paid if payment is made in full.” Compl. ¶ 13. He further alleges that the letter violated the FDCPA, which prohibits “deceptive, misleading, and unfair debt collection practices.” Id. ¶¶ 15-17.

         B. Procedural History

         Mr. Garcia filed the initial complaint in this matter on May 23, 2016, alleging that Schiff's letter violated “various provisions of the FDCPA, U.S.C. §§ 1692d, 1692e, 1692e(2), 1692e(5), 1692e(7), 1692e(8), 1692e(10), 1692f, and 1692f(1).” Compl. ¶ 17. Schiff then moved to dismiss the Complaint, arguing that Mr. Garcia did not have standing and that he had failed to allege violations of the FDCPA. See Mot. to Dismiss, ECF No. 10.

         The Court allowed two claims to proceed but dismissed the rest. See Ruling on Def. Mot. to Dismiss, ECF No. 17. The Court held that Mr. Garcia had standing to sue. Id. at 4-7. The Court concluded that “that the least sophisticated consumer might be confused by the Letter's reference to multiple amounts of debts . . . .” and therefore allowed claims to proceed under 15 U.S.C. §§ 1692e. Id. at 12. It also held that Mr. Garcia had pleaded violations of 15 U.S.C. § 1692e(10), a subsection that “reiterates the section's general prohibition of false or deceptive representations and adds that such misrepresentations may not be used to attempt to collect any debt or obtain information concerning consumers.” Id. at 15. The remaining claims under 15 U.S.C. §§ 1692e(2), 1692e(5), 1692e(7), 1692e(8) were dismissed under Federal Rule of Civil Procedure 12(b)(6). Id. Additionally, the Court dismissed claims under 15 U.S.C. § 1692d, finding that Mr. Garcia had not “point[ed] to language from the Letter that he found ‘harassing' or ‘abusive.'” Id. at 8. The Court also dismissed claims under 15 U.S.C. § 1692f, finding that the single letter Mr. Garcia received from Schiff was insufficient to demonstrate “unfair or unconscionable conduct.” Id. at 9.

         Following the Court's Ruling, the parties submitted a joint report of their planning meeting under Federal Rule of Civil Procedure 26(f). See Report, ECF No. 20. The parties contemplated that “[a]ll discovery . . . will be commenced by June 1, 2017 and completed (not propounded) by November 30, 2017.” At a settlement conference, Magistrate Judge Fitzsimmons denied a “blanket extension request of sixty (60) days, ” but ordered that “[a]ll discovery, including depositions of expert witnesses will be completed (not propounded) by December 29, 2017.” See Scheduling Order, ECF No. 30. Dispositive motions were to be due by January 15, 2018. Id.

         On July 7, 2017, the same day the scheduling order was entered, Schiff moved for summary judgment. See Def. Mot. Summ. J., ECF No. 31. Schiff argued that Mr. Garcia had failed to respond to several requests for admission that were served on May 31, 2017. Schiff therefore argued that those matters were deemed admitted under Federal Rule of Civil Procedure 36.[1] Id. at 2. Additionally, Defendant argued that these admitted facts demonstrated that “there was nothing ‘false' or ‘misleading' contained in the February 12, 2016 letter” and therefore no violation of 15 U.S.C. §§ 1692e and 1692e(10). Id. at 4.

         Mr. Garcia then moved to amend or withdraw his responses to admission on August 3, 2017. See Pl. Mot. to Amend., ECF No. 35. He argued that counsel for both parties had “agreed that the parties would not serve discovery in this matter until they had participated in a Settlement Conference, ” but that counsel for the defendant had breached that agreement by prematurely serving requests for admission. Id. ¶¶ 1-2.

         Additionally, he argues that his counsel contacted counsel for Defendant “and requested that they call the Court to decide the pending discovery dispute . . .” but counsel refused and then moved for summary judgment. Id. ¶ 8. Citing Rule 36, Mr. Garcia “requests leave of this Court to Withdraw and Amend its [sic] Response to Admissions, ” stating that he intended to file an amended complaint, had valid claims against the Defendant, and that Defendant would not be prejudiced because discovery had yet to be completed and would not be due for several more months. Id. ¶¶ 10-13. Plaintiff also submitted an affidavit signed by his counsel, Yaakov Saks, in support of the motion. See Saks Aff., Pl. Mot. to Amend., Ex. 1, ECF No. 35-1.

         Schiff did not file a response to the motion. Instead, Jeanine Dumont - a partner at Schiff who has filed an appearance for Schiff in this case - submitted an affidavit styled “in opposition” to Plaintiff's motion. See Dumont Aff., ECF No. 36. Attorney Dumont disputed whether counsel had agreed that parties would not serve discovery until after the settlement conference, stating that “[t]hese statements are completely false.” Id. ¶ 3. The remainder of the affidavit described communication between the parties, “an outrageous display of incivility by Attorney Saks” at a settlement conference, id. ¶ 10, and cursory arguments regarding discovery and amendment of the complaint. Id. ¶¶ 11-13. Finally, the affidavit concludes: “It appears that Mr. Saks has fabricated an alleged agreement with the undersigned not to serve discovery before the Settlement Conference because he failed to respond to the Requests for Admission in a timely manner, and now has no valid excuse for failing to respond.” Id. ¶ 14. The affidavit does not assert that Defendant would be prejudiced by the withdrawal of the admissions.

         Mr. Garcia then filed an opposition to Defendant's motion for summary judgment. See Pl. Mem. of L. in Opp. (“Pl. Opp.”), ECF No. 37. The memorandum appears to assert a new cause of action based on a recent collection letter sent to Plaintiff on June 22, 2017. Garcia argues that “As Defendant's June 27, 2017 letter brings new facts into this case, Defendant's Motion for Summary Judgment must be denied.”[2] Id. at 4. He also argued that, should the pending motion to withdraw admission be granted, the motion for summary judgment would be moot. Id. at 7 (asserting, without citation, “Mr. Garcia was forced to file the Motion for Leave to Withdraw and Amend his Responses to Admissions because the parties were unable to resolve their discovery disputes. Plaintiff has been prejudiced by Defendant's seeming unwillingness to address this discovery dispute with the court.”). Finally, he argued that there were other pending discovery disputes.[3] Id. at 7-9 (alleging two discovery disputes related to the request for admissions and one related to a deposition).

         Schiff filed a reply. See Def. Mot. Summ. J. Rep. Br. (“Def. MSJ Rep.”), ECF No. 38. In its reply, Schiff raised the issue of prejudice for the first time, stating that “Defendant's counsel devoted hours to the preparation and attendance at the Settlement Conference - many of those hours were devoted laboring under the belief that the Requests for Admissions would be deemed admitted since they were unanswered.” Id. at 2. Additionally, Defendant notes that it “has been forced to notice the deposition of the plaintiff to be prepared to address the issues in this case” should the motion to withdraw be granted, and cursorily concludes this demonstrates that Schiff would be prejudiced “at this stage given the time and effort that has been devoted to this case.” Id. Schiff also argues that the Plaintiff should not be allowed to amend the Complaint and, even if the Court considered allegations related to a second collection letter, Schiff would still be entitled to summary judgment. Id. 4-5.

         II. ...

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