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Himes v. Client Services Inc.

United States District Court, First Circuit

January 2, 2014

Susan E. Himes
v.
Client Services Inc., et al. Opinion No. 2014 DNH 002

MEMORANDUM AND ORDER

PAUL BARBADORO, District Judge.

This case arises from attempts made by defendants to collect a consumer debt that Susan Himes allegedly owes to Target National Bank. Himes seeks damages based on alleged violations of several federal and state laws regulating the defendants' debt collection activities. Law Offices Howard Lee Schiff, P.C., along with Adam Olshan and David Florio (both attorneys employed by Schiff), move for summary judgment pursuant to Federal Rule of Civil Procedure 56. I grant Olshan's and Florio's motions in full, and I grant Schiff's motion in part and deny it in part.

I. BACKGROUND

On March 15, 2012, Himes received a letter from Client Services notifying her that Target had referred to it an unpaid consumer credit account balance of $1, 002.71 for collection. Doc. No. 66-4. The letter includes a reference number, 1213837, and a Target account identification number, XXXXXXXXXXX.[1] Id . On March 29, 2012, Himes sent Client Services a letter disputing the debt, demanding validation pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. ยง 1692g, and requesting that Client Services refrain from contacting her by telephone. Doc. No. 32-2. Himes received no further communications from Client Services. Doc. No. 66.

On May 19, 2012, Himes received a second collection letter, this time from Schiff. Doc. No. 66-4. The letter sought payment of $1, 089.95 that Himes allegedly owed to Target and included a "CN"[2] number, W70803. Id . The letter states in part:

THIS IS AN ATTEMPT TO COLLECT A DEBT. ANY FURTHER INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. THIS COMMUNICATION IS FROM A DEBT COLLECTOR.
....
VALIDATION NOTICE
If you do not dispute the validity of the debt, or any portion thereof, within 30 days of the receipt of this letter, the debt collector will assume it is valid. If you dispute the validity of this debt or any portion thereof in writing within 30 days of receipt of this letter, we will obtain and mail you verification of the debt or a copy of a judgment against you. At your request in writing within 30 days of receipt of this letter, we will provide you with the name and address of the original creditor, if different from the current creditor.

Id. On May 23, 2012, Himes sent Schiff a demand for validation and a request to refrain from telephone communication. Doc. No. 66-5. In response, Himes received a letter from Schiff on June 4, 2012 containing a copy of Himes's final Target credit card account statement, dated May 8, 2012. Doc. No. 66-6. The statement includes Target's account identification number, XXXXXXXXXXX, along with the final four digits of the credit card account number, 5461, as well as Schiff's handwritten CN number in the upper margin. Id . It lists Himes's new balance as $1089.95, which includes a $35.00 late payment fee in addition to the previous balance of $1, 054.95. Id . The statement also includes Target's mailing address on the bill payment slip. Id . Himes disputes that the statement reflects a valid debt. Doc. No. 66.

Himes alleges that she received two calls on her personal cell phone from an automated dialer owned by Schiff on August 8 and 15, 2012, despite having previously demanded that Schiff refrain from all telephone contact. Id . The defendants deny that they ever called Himes. Doc. Nos. 63-2, 63-3, 63-4.

On July 24, 2012, Target, by its attorneys Olshan and Florio, served Himes with a small claims complaint in New Hampshire Circuit Court. The complaint states that on or before May 8, 2012, Himes owed a delinquent balance of $1089.95 on account number XXXXXXXXXXXXXXXX and Target seeks damages for the current balance due, $1, 054.95. Doc. No. 66-7. The court entered a judgment of $1, 139.98[3] for Target on February 27, 2013 after making the following findings of fact:

Between 2007 and 2012.... monthly statements were forwarded to Susan E. Himes at [her home] address, and during that time small electronic payments were made and credited to that account. Payments ceased and the account was charged off leaving a balance of $1, 054.95.
Ms. Himes testified under oath that she has no recollection of ever having had a Target credit card; she has no recollection of ever receiving any invoices from Target; had no recollection of ever making any payments on the account. She maintains that the plaintiff has failed to prove that the account is hers. Although she has had full discovery in this matter, she provided no documentation to ...

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