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

United States District Court, D. Connecticut

December 14, 2018

LUIS GARCIA, Plaintiff,
v.
LAW OFFICES OF HOWARD LEE SCHIFF, P.C., Defendant.

          RULING ON MOTIONS FOR SUMMARY JUDGMENT AND TO STRIKE AFFIDAVITS

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE.

         On February 12, 2016, Luis Garcia (“Plaintiff”) received a debt collection letter from the Law Offices of Howard Lee Schiff, P.C. (“Defendant” or “the Schiff firm”). Compl. ¶ 9. The letter stated a charge-off balance of $663.94 and a current balance of $565.46. Id. at 11.

         On May 23, 2016, Plaintiff filed this action alleging various violations of the Fair Debt Collections Practices Act (“FDCPA”). Compl. ¶ 3.

         Three motions are now pending: (1) Defendant's motion for summary judgment, Def. Mot. for Summ. J., ECF No. 56; (2) Plaintiff's motion for summary judgment, see Mem. of Law in Supp. of Pl. Summ. J. Mot., ECF No. 57; and (3) Defendant's motion to strike the affidavits of Luis Garcia, Mot. to Strike Affidavits of Luis Garcia, ECF No. 60.

         For the reasons set forth below, the Court now DENIES Defendant's motion for summary judgment, ECF No. 56; DENIES Plaintiff's motion for summary judgment, ECF No. 57; and DENIES Defendant's motion to strike the affidavits of Luis Garcia, Mot. to Strike Affidavits of Luis Garcia, ECF No. 60.

         I. FACTUAL AND PROCEDURAL BACKGROUND[1]

         A. Factual Allegations[2]

         In February of 2016, Mr. Garcia received a debt collection letter from the Schiff firm. Compl. ¶ 9. The letter stated that the Schiff firm was servicing a First Premier Bank account owned by Midland Funding, LLC, and that Mr. Garcia owed a charge-off balance of $663.94 and a current balance of $565.46. Compl. ¶ 11; Def. Mot. for Summ. J., Ex. 4 at 56 [Debt collection letter from Law Off. of Howard Lee Schiff, P.C. to Luis Garcia, Feb. 12, 2016 (“Garcia Collection Letter”)], reproduced at Mem. of Law in Supp. of Pl. Summ. J. Mot., ECF No. 57, Ex. A.

         The letter listed as zero the post charge-off interest accrued, post charge-off fees accrued, and post-charge-off payments and credits. Id. Mr. Garcia then allegedly “handed [the letter] over to [his] attorney” along with records of “all the debts” he owed. Def. Mot. for Summ. J., Ex. 4 at 15-16 [Dep. of Luis Garcia, Sept. 6, 2017] (“Garcia Dep.”); reproduced at Mem. of Law in Supp. of Pl. Summ. J. Mot, Ex. B. Mr. Garcia's attorney wrote to the Schiff firm regarding the matter on April 8, 2016. Def. Mot. for Summ. J., Ex. 4 at 57 [Demand letter from Yaakov Saks, Esq. to Law Offices of Howard Lee Schiff, P.C. (Apr. 5, 2016)].

         B. Procedural Background

         On May 23, 2016, Mr. Garcia filed this lawsuit. Compl.

         The parties engaged in discovery, including production of: (1) the debt letter, Def. Mot. for Summ. J., Ex. 4 at 56; Mem. of Law in Supp. of Pl. Summ. J. Mot., ECF No. 57, Ex. A; (2) a deposition of Luis Garcia, Garcia Dep., (3) an affidavit of Karen J. Wisniowksi, Managing Partner of the Law Offices of Howard Lee Schiff, P.C., ECF No. 63; (4) two sets of Plaintiff's admissions, Def. Mot. for Summ. J., Ex. 1 [Pl. Ans. And Obj. to Def. Requests for Admis. (Mar. 8, 2018)], and Pl. Resp. to Def. Mot. to Strike Pl. Aff. in Supp. of His Summ. J. Mot., Ex. B [Ans. And Obj. to Def. Requests for Admis. (Sept. 14, 2018)]; and (5) various letters of demand, compromise, and settlement, see, e.g., Def. Mot. for Summ. J., Ex. 4 at 56-57.

         On March 30, 2017, the Court granted in part and denied in part the Schiff firm's motion to dismiss. Ruling on Def. Mot. to Dismiss. The Court granted the motion to dismiss claims under 15 U.S.C. § 1692(d) and 15 U.S.C. § 1692(f), found that Mr. Garcia had not stated a claim under 15 U.S.C. § 1692(e)(2), 15 U.S.C. § 1692(e)(5), 15 U.S.C. § 1692(e)(7) and 15 U.S.C. §§ 1692(e)(8), but denied the motion to dismiss claims for violations of 15 U.S.C. § 1692(e) and 15 U.S.C. § 1692(e)(10). Id.

         On February 21, 2018, the Court granted Plaintiff's motion to withdraw his August 3, 2017 admissions, Ruling on Mot. for Summ. J. and Mot. to Withdraw Admissions, ECF No. 41, at 4, 13, and denied as premature Defendant's motion for summary judgment because it was filed the day the Court's scheduling order was entered, at the start of discovery. Id. at 3, 13.

         On July 26, 2018, Defendant filed its present motion for summary judgment. Def. Mot. for Summ. J., ECF No. 56. On August 3, 2018, Plaintiff filed its present motion for summary judgment. Mem. of Law in Supp. of Pl. Summ. J. Mot., ECF No. 57. On August 24, 2018, Defendant filed its motion to strike the affidavits of Luis Garcia. Mot. to Strike Affidavits of Luis Garcia, ECF No. 60.

         II. STANDARD OF REVIEW

         Two standards of review govern the motions before the Court: (1) the standard for summary judgment, and (2) the standard for motions to strike portions of summary judgment exhibits.

         In a motion for summary judgment, the burden is on the moving party to establish that no genuine issues of material fact remain in dispute and that it is thus “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law” and a factual issue is “genuine” if “a reasonable jury could return a verdict for the nonmoving party” based on it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the record, a court must “construe the evidence in the light most favorable to the ...


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