Parker v. Mandarich Law Group, LLP

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CHARDEE PARKER,

Plaintiff,

MEMORANDUM AND ORDER

- against - 19-CV-6313

MANDARICH LAW GROUP, LLP,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Chardee Parker brought this putative class

action on behalf of herself and individuals similarly situated,

alleging violations of various provisions of the Fair Debt

Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., by

defendant Mandarich Law Group, LLP (“Mandarich”).1 Plaintiff and

defendant have cross-moved for summary judgment. For the

reasons set forth below, defendant’s motion for summary judgment

is granted in its entirety and plaintiff’s motion is denied.

BACKGROUND

The court has taken the facts set forth below from the

parties’ declarations, affidavits, and exhibits, and from the

parties’ respective Rule 56.1 statements of facts.2 Upon

1 Plaintiff filed this lawsuit as a class action under Rule 23 of the

Federal Rules of Civil Procedure, but no motion for Rule 23 class

certification has yet been made by plaintiff at the time of the opinion.

2 (See ECF Nos. 24-14, Defendant’s 56.1 Statement (“Def. 56.1”); 26,

Plaintiff’s Response to Defendant’s 56.1 Statement (“Pl. Resp.”); 30-9,

consideration of the motions for summary judgment, the court

shall construe the facts in the light most favorable to the non-

moving party. See Capobianco v. City of New York, 422 F.3d 47,

50 n.1 (2d Cir. 2005). Unless otherwise noted, where a party’s

56.1 statement is cited, that fact is undisputed or the opposing

party has pointed to no evidence in the record to contradict it.3

I. Factual Background

Defendant Mandarich is a limited liability partnership

engaged in the practice of law that regularly collects or

attempts to collect debts. (Def. Resp. at 1-2.) Plaintiff is

an individual who is a citizen of the State of New York residing

in Queens County, New York. (Id. at 1.) On November 8, 2018,

Mandarich sent an initial collection letter to plaintiff,

attempting to collect a debt in the amount of $2,390.07 (the

“Collection Letter”). (Pl. Resp. at 5; Def. Resp. at 2.)

The Collection Letter, which forms the basis for

plaintiff’s claims, is printed on letterhead with the heading

“Mandarich Law Group, LLP, Attorneys at Law,” and provides

details about plaintiff’s alleged outstanding debt, including

the current creditor (Galaxy International Purchasing, LLC),

Plaintiff’s 56.1 Statement (“Pl. 56.1”); 31-1, Defendant’s Response to

Plaintiff’s 56.1 Statement (“Def. Resp.”).)

3 Although the parties' Rule 56.1 statements contain specific citations

to the record to support their statements, the Court has cited to the Rule

56.1 statements, rather than the underlying citation to the record, when

utilizing the 56.1 statements for purposes of this summary of facts.

current balance ($2,390.07), date of last payment (7/16/2015),

and account number. (ECF No. 1-1, Collection Letter Addressed

to Chardee Parker, (“Collection Ltr.”).) The body of the letter

states, in relevant part, as follows:

Your account has been sold and assigned to our

client, Galaxy International Purchasing, LLC.

This office has been hired to collect the

above balance that you owe our client. This is

a demand for payment of your outstanding

obligation.

Please contact Collection Supervisor, John

Licata, of our office should you wish to

discuss payment arrangements on your account.

You can reach us on our toll-free number of

833.769.2757.

Unless you, within thirty days after receipt

of this notice, dispute the validity of the

debt, or any portion thereof, the debt will be

assumed to be valid by us. If you notify us in

writing within the thirty-day period that the

debt, or any portion thereof, is disputed, we

will obtain verification of the debt or a copy

of a judgment against you and a copy of such

verification or judgment will be mailed to you

by us. Upon your written request within the

thirty-day period we will provide you with the

name and address of the original creditor, if

different from the current creditor.

The law does not require us to wait until the

end of the thirty-day period before suing you

to collect this debt. If, however, you notify

us in writing within the thirty-day period

described in the prior paragraph that the

debt, or any portion thereof, is disputed, or

that you request the name and address of the

original creditor, the law requires us to

suspend our efforts (through litigation or

otherwise) to collect the debt until we mail

the requested information to you.

Id. The third paragraph is a notice required by the FDCPA to be

included in debt collection letters (the “validation notice”).

See 15 U.S.C. § 1692g.

Below the above items, the Collection Letter has four

sentences in bold font:

NOTICE: SEE REVERSE SIDE FOR IMPORTANT

INFORMATION

THIS COMMUNICATION IS FROM A DEBT COLLECTOR.

THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY

INFORMATION OBTAINED WILL BE USED FOR THAT

PURPOSE.

ALL CALLS TO AND FROM MANDARICH LAW GROUP,

LLP MAY BE MONITORED AND/OR RECORDED FOR

COMPLIANCE PURPOSES.

NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS

LICENSE NUMBER 2079588-DCA.

(Collection Ltr. at 1.) The reverse side of the Collection

Letter includes additional legal notices advising the consumer

about credit reporting and his or her rights under the FDCPA.

(Id. at 2.)

II. Procedural History

Plaintiff commenced this action on November 7, 2019.

(See ECF No. 1, Complaint (“Compl.”).) On December 4, 2019,

defendant answered to the complaint. (ECF No. 8, Answer.)

Magistrate Judge Steven M. Gold held several conferences with

the parties and discovery was closed on August 28, 2010. (ECF

No. 18, Defendant’s Letter Confirming Completion of Discovery.)

On December 30, 2020, the parties submitted their cross-motions

for summary judgment and supporting submissions. (See ECF Nos.

23, Defendant’s Notice of Motion for Summary Judgment; 24

Defendant’s Memorandum of Law and Supporting Submissions (“Def.

Mem.”); 25, Plaintiff’s Opposition to Defendant’s Motion for

Summary Judgment (“Pl. Opp.”); 28, Defendant’s Reply in Support

of Defendant’s Motion for Summary Judgment (“Def. Reply”); 30,

Plaintiff’s Notice of Motion for Summary Judgment; 31-1,

Plaintiff Chardee Parker’s Declaration in Support of Motion for

Summary Judgment (“Parker Decl.”); 31-10, Plaintiff’s Memorandum

of Law in Support of its Motion for Summary Judgment (“Pl.

Mem.”); 31, Defendant’s Opposition to Plaintiff’s Motion for

Summary Judgment (“Def. Opp.”); 32, Plaintiff’s Reply in Support

of Plaintiff’s Motion for Summary Judgment (“Pl. Reply”).)

LEGAL STANDARD

I. Summary Judgment

Summary judgment shall be granted to a movant who

demonstrates “that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ for

these purposes when it ‘might affect the outcome of the suit

under the governing law.’” Rojas v. Roman Catholic Diocese of

Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). No genuine

issue of material fact exists “unless there is sufficient

evidence favoring the nonmoving party for a jury to return a

verdict for that party.” Anderson, 477 U.S. at 249. “If the

evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.” Id. at 249-50 (internal

citations omitted).

When bringing a motion for summary judgment, the

movant carries the burden of demonstrating the absence of any

disputed issues of material fact and entitlement to judgment as

a matter of law. Rojas, 660 F.3d at 104. In deciding a summary

judgment motion, the court must resolve all ambiguities and draw

all reasonable inferences against the moving party. Flanigan v.

Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)). A moving party may indicate the absence of a

factual dispute by “showing . . . that an adverse party cannot

produce admissible evidence to support the fact.” Fed. R. Civ.

P. 56(c)(1)(B).

Once the moving party has met its burden, the

nonmoving party normally “must come forward with admissible

evidence sufficient to raise a genuine issue of fact for trial

in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser

Co., 536 F.3d 140, 145 (2d Cir. 2008) (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986)). The standard is the same

when cross motions for summary judgment are made. See Morales

v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001);

Estrada v. St. Francis Hosp., No. 13-cv-1243, 2015 WL 6965202,

at *8 (E.D.N.Y. November 10, 2015).

II. Motion to Strike

In the summary judgment context, Federal Rule of Civil

Procedure Rule 56(c)(4) requires that “[a]n affidavit or

declaration used to support or oppose a motion must be made on

personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or declarant is competent to

testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). “A

court may . . . strike portions of an affidavit that are not

based upon the affiant's personal knowledge, contain

inadmissible hearsay or make generalized and conclusory

statements.” Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198

(2d Cir. 1999).

“Materials submitted in support of or in opposition to

a motion for summary judgment must be admissible themselves or

must contain evidence that will be presented in admissible form

at trial.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 169-70

(2d Cir. 2014) (quotations and citation omitted); see also Lyons

v. Lancer Ins. Co., 681 F.3d 50, 57 (2d Cir. 2012) (“In ruling

on a motion for summary judgment, the district court may rely on

any material that would be admissible at a trial.” (quotations

and citation omitted)). “[W]here a party relies on affidavits

or deposition testimony to establish facts, the statements ‘must

be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant

is competent to testify on the matters stated.’” DiStiso v.

Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P.

56(c)(4)); see Fed. R. Evid. 602 (“A witness may testify to a

matter only if evidence is introduced sufficient to support a

finding that the witness has personal knowledge of the matter.

Evidence to prove personal knowledge may consist of the

witness's own testimony.”).

“Where an affidavit or declaration contains material

that does not comply with Rule 56(c)(4), a Court may either

disregard or strike it from the record.” Russo v. Estee Lauder

Corp., 856 F.Supp.2d 437, 443 (E.D.N.Y. 2012); see also Pace v.

Air & Liquid Sys. Corp., 171 F. Supp. 3d 254, 272 (S.D.N.Y.

2016) (“A court may strike portions of an affidavit that are not

based upon an affiant’s personal knowledge, contain inadmissible

hearsay or make generalized and conclusory statements.”

(quotations and citation omitted)).

Nonetheless, “[t]he test for admissibility of a

summary judgment affidavit ‘is whether a reasonable trier of

fact could believe the witness had personal knowledge[,]’”

Super Express USA Publ'g Corp. v. Spring Publ'g Corp., No. 13-

cv-2813, 2017 WL 1274058, at *6 (E.D.N.Y. Mar. 24, 2017)

(quoting Serrano, 863 F. Supp. 2d at 163), and “an affiant is

under no obligation to specify the source of his personal

knowledge.” Bank of Am., N.A. v. Kamico, Inc., No. 11-cv-5255,

2012 WL 1449185, at *5 (S.D.N.Y. Apr. 24, 2012). “The lack of

certain specific details or arguably vague statements will not

render the affidavit inadmissible, but affect the weight and

credibility of the testimony, which have to be determined by the

trier of fact at trial.” Serrano v. Cablevision Sys. Corp., 863

F.Supp.2d 157, 163 (E.D.N.Y. 2012). Moreover, “an affiant may

testify as to the contents of records she reviewed in her

official capacity.” Madden v. Town of Hempstead, No. 16-cv-6835

(SJF)(AKT), 2019 WL 1439935, at *12 (E.D.N.Y. Mar. 29, 2019)

(quoting Searles v. First Fortis Life Ins. Co., 98 F. Supp. 2d

456, 461 (S.D.N.Y. 2000)).

DISCUSSION

Plaintiff and defendant have cross-moved for summary

judgment as to plaintiff’s claims under the FDCPA. (See ECF

Nos. 23, 30.) In support of defendant’s motion for summary

judgment, defendant attached an affidavit from Claire Whitlatch,

Esq., a partner at Mandarich (the “Whitlatch Affidavit”). (See

ECF No. 24-1, Affidavit of Claire Whitlatch (“Whitlatch Aff.”).)

In sum, Whitlatch describes her role as managing partner at

Mandarich, her supervision of letters sent in debt collection

efforts, her knowledge of internal firm policies and records

involving debt collection efforts, and her knowledge of

plaintiff’s account file after it. (See generally Whitlatch

Aff.) Shortly after the cross-motions for summary judgment were

fully-briefed, plaintiff moved to strike Ms. Whitlatch’s

affidavit, in toto, or alternatively, certain provisions of the

affidavit as improper under the Federal Rules of Evidence. (See

ECF No. 36.)

“Because a decision on the motion to strike may affect

[the movant’s] ability to prevail on summary judgment, it is

appropriate to consider a motion to strike prior to a motion for

summary judgment.” Pugliese v. Verizon N.Y., Inc., No. 05-cv-

4005 (KMK), 2008 WL 2882092 (S.D.N.Y. July 10, 2008) (internal

quotations and citation omitted). For the reasons set forth

below, the court declines to strike Ms. Whitlatch’s affidavit

and supporting exhibit.

I. Plaintiff’s Motion to Strike the Whitlatch Affidavit &

Supporting Exhibit C

Plaintiff moves to strike the Whitlatch Affidavit

filed in support of defendant’s motion for summary judgment in

toto, or alternatively, moves to strike certain provisions of

the affidavit as improper under the Federal Rules of Evidence.

(See generally ECF No. 36, Plaintiff’s Motion to Strike (“Pl’s

Mot. to Strike”).)4 Specifically, plaintiff argues that Ms.

Whitlatch’s statements in the affidavit contradict statements

made in her Federal Rule of Civil Procedure 30(b)(6) (“Rule

30(b)(6)”) deposition and, accordingly, cannot now be used at

summary judgment in support of defendant’s motion for summary

judgment. (See ECF No. 38, Plaintiff’s Reply Memorandum of Law

in Support of Motion to Strike (“Pl’s Reply for Mot. to

Strike”), at 2-4 (citing Federal Rule of Evidence 602).)

Plaintiff also argues that the Whitlatch Affidavit is improper

because it contains irrelevant information, constitutes

impermissible hearsay, and lacks a proper foundation. (See Pl’s

Mot. to Strike at 3-9.) Finally, plaintiff also seeks to

preclude Exhibit C to the Whitlatch Affidavit (the “history

report”) because defendant failed to produce the document during

discovery and the document is impermissible hearsay. (Id. at 9-

10.)

In response, defendant broadly argues that plaintiff’s

evidentiary objections are meritless because Ms. Whitlatch’s

statements contained in the affidavit are relevant, have a

proper foundation, and are based on personal knowledge. (See

ECF No. 37, Defendant’s Opposition to Plaintiff’s Motion to

Strike (“Def’s Opp. to Mot. to Strike”).) Further, defendant

4 Plaintiff failed to include page numbers in her motion to strike.

Accordingly, the page references cited herein refer to the ECF generated page

numbers in the header of each page.

argues that Exhibit C consisting of the history report does not

constitute impermissible hearsay and was not produced during

discovery due to plaintiff’s “failure to meaningfully

participate in the discovery process.” (Id. at 10-11 (footnote

omitted).)

Having reviewed the Whitlatch Affidavit and supporting

submissions, the court respectfully denies plaintiff’s motion to

strike the Whitlatch Affidavit in toto, or alternatively, to

strike portions of the affidavit. See M.V.B. Collision, Inc. v.

Allstate Ins. Co., 728 F. Supp. 2d 205, 209 (E.D.N.Y. 2010)

(explaining that the district court is “not obligated to engage

in the time-consuming, cumbersome process of formally striking

[inadmissible] evidence in a line-by-line fashion,” rather the

court may “simply disregard the allegations that are not

properly supported.”). To the extent the Whitlatch Affidavit

violates the Federal Rules of Civil Procedure or Evidence, the

court disregards those statements.

A. Plaintiff’s Evidentiary Objections

Turning to the merits of plaintiff’s evidentiary

objections, the court agrees with defendant that plaintiff’s

objections are meritless because the Whitlatch Affidavit: (1) is

based on personal knowledge and lays a proper foundation, (2)

does not contradict Ms. Whitlatch’s Rule 30(b)(6) deposition,

and (3) does not contain impermissible hearsay.5

First, the Whitlatch Affidavit is admissible for the

purposes of this summary judgment motion because the affidavit

is based on Ms. Whitlatch’s personal knowledge and provides a

proper foundation. Although plaintiff argues that the affidavit

is not based on personal knowledge because Ms. Whitlatch was not

involved in the handling of plaintiff’s account documents and

was not involved in the development of the “Attorney Meaningful

Involvement Procedure” (see Pl’s Mot. to Strike at 3-5), “an

affiant may testify as to the contents of records she reviewed

in her official capacity.” Madden, 2019 WL 1439935, at *12. In

her declaration, Ms. Whitlatch attests that she was a partner at

Mandarich Law Group, LLP “at all relevant times” described in

plaintiff’s complaint, and that, in that capacity, she was

“aware of and am required to comply with Mandarich Law Group,

LLP’s policies and procedure,” reviewed “documentation and

evidence of debt owed to [creditor] clients,” and also served as

“a custodian of records and am familiar with [Mandarich’s]

5 Plaintiff’s objection that Ms. Whitlatch’s affidavit “neither

references 28 U.S.C. §1746 nor is sworn to before a notary public” (see Pl’s

Mot. to Strike at 3), is refuted by the plain text of the affidavit and is

accordingly rejected by the court as meritless. (Compare Whitlatch Aff. at

10 (“I declare under penalty of perjury under the laws of the United States

of America that the forgoing is true and correct.”)), with 28 U.S.C. §

1746(2) (requiring sworn affidavits contain the following statement: “I

declare (or certify, verify, or state) under penalty of perjury that the

foregoing is true and correct. Executed on (date).”).

record keeping procedures.” (Whitlatch Aff. ¶¶ 3, 5-6.)

Furthermore, in preparing her affidavit, Ms. Whitlatch “relied

on the particular Mandarich business records with which I am

familiar which are attached hereto as well as my own personal

knowledge about Mandarich’s record keeping systems, policies,

business and practices.” (Id. ¶ 7.) Notably, a substantial

portion of plaintiff’s evidentiary objections target specific

statements in the Whitlatch Affidavit that summarize Whitlatch’s

review of information contained in Mandarich’s business records

and plaintiff’s account file. (See Pl’s Mot. to Strike at 6-7.)

Because Ms. Whitlatch’s affidavit was based on her review of

defendant’s business records in her capacity as a partner at

Mandarich, the court concludes that Ms. Whitlatch has sufficient

personal knowledge to support the sworn statements contained in

her affidavit (which are all corroborated by the admissible

records); the declaration is therefore admissible. See Hogan v.

Lewis Cty., No. 16-cv-1325 (LEK)(ATB), 2018 WL 4689094, at *13

(N.D.N.Y. Sept. 28, 2018) (finding sufficient personal knowledge

where affiant did not join District Attorney’s office until

after charges were made because “an affiant may testify as to

the contents of records she reviewed in her official capacity”);

Searles, 98 F. Supp. 2d at 461–62 (finding sufficient personal

knowledge where the affiant was a corporate officer of the

defendant, which qualified her to review the relevant business

materials and make sworn statements based upon those materials).

Second, having reviewed the parties’ submissions and

exhibits, the court also concludes that Ms. Whitlatch’s

affidavit does not contradict her Rule 30(b)(6) deposition

testimony. The fact that Ms. Whitlatch did not personally

process plaintiff’s file, as she testified at her deposition,

does not render contradictory her affidavit that she reviewed

documents and her knowledge of defendant’s procedures, policies,

and practices. The Second Circuit has explained that Rule

30(b)(6) testimony “is ‘binding’ in the sense that whatever its

deponent says can be used against the organization . . . [b]ut

Rule 30(b)(6) testimony is not ‘binding’ in the sense that it

precludes the deponent from correcting, explaining, or

supplementing its statements.” Keepers, Inc. v. City of

Milford, 807 F.3d 24, 34 (2d Cir. 2015). In other words, the

well-settled “sham-affidavit rule,” which “prevents a party from

manufacturing an issue of fact by submitting an affidavit in

opposition to a summary judgment motion that, by omission or

addition, contradicts the affiant’s previous deposition

testimony” is inapplicable in the context of a Rule 30(b)(6)

deponent’s allegedly contradictory testimony. Id. at 35. Thus,

even if Ms. Whitlatch contradicted statements she made as a Rule

30(b)(6) deponent, such contradictions would not preclude use of

an affidavit made after Ms. Whitlatch’s review of plaintiff’s

file for purposes of defendant’s motion for summary judgment.

Specifically, plaintiff contends that the provisions

referencing Ms. Whitlatch’s knowledge of plaintiff’s account-

level documentation should be stricken because Ms. Whitlatch

testified at the Rule 30(b)(6) deposition that she was not

involved in handling plaintiff’s account. (See Pl’s Reply to

Mot. to Strike at 6 (citing Whitlatch Aff. ¶¶ 27, 33-40, 46-47

and 49-57); see ECF No. 29, Stipulation regarding Ms.

Whitlatch’s Deposition Testimony, Joint Deposition Transcript

Appendix, Ex. 3 at 74:14-18 (Q: So you said you were not

involved with this account at the time it was being handled by

Mandarich? A: No, I was not involved with this account, no”)).

Upon specific review of Ms. Whitlatch’s deposition excerpts

provided to the court, the court discerns no contradictions.

Further, as discussed above, Ms. Whitlatch’s statements

describing plaintiff’s account-level information is permitted

for purposes of adjudicating the parties’ motions for summary

judgment because the Whitlatch Affidavit supplements testimony

Ms. Whitlatch provided at her Rule 30(b)(6) deposition and is

based on a review of plaintiff’s account file made in her

capacity as a partner at Mandarich. See, e.g., AmTrust N. Am.,

Inc. v. KF&B, Inc., No. 17-cv-5340 (LJL), 2020 WL 5578675, at *1

(S.D.N.Y. Sept. 16, 2020) (declining to strike testimony of

affiant on the grounds that it is inconsistent with testimony

that the affiant gave on behalf of plaintiffs as their Rule

30(b)(6) witness). Furthermore, statements Ms. Whitlatch made

at her deposition in Felberbaum v. Mandarich, 19-cv-04249 (KAM)

(VMS), disclaiming involvement in the development of the

“Attorney Meaningful Involvement Procedure” are also not

sufficient to strike her affidavit here, because Ms. Whitlatch’s

involvement or non-involvement in implementation of the internal

firm policy is irrelevant to the statements made in her

affidavit, which was sworn to in her capacity as a partner at

Mandarich and after review of the “Attorney Meaningful

Involvement Procedure.” (Pl’s Reply to Mot. to Strike (citing

Deposition Transcript of Claire Whitlatch in Felberbaum v.

Mandarich Law Group, 19-cv-04249 (KAM)(VMS) at 29:7-31:14)).

Third, the contents of the Whitlatch Affidavit also do

not constitute impermissible hearsay. “To lay a proper

foundation for a business record, a custodian or other qualified

witness must testify that the document was kept in the course of

a regularly conducted business activity and also that it was the

regular practice of that business activity to make the

record.” United States v. Komasa, 767 F.3d 151, 156 (2d Cir.

2014). As explained above, Ms. Whitlatch prepared her affidavit

in her capacity as a partner at Mandarich and the “custodian of

records . . . familiar with the firm’s record keeping

procedures.” (Whitlatch Aff. ¶¶ 5-6.) Indeed, throughout the

affidavit, Ms. Whitlatch confirms that her statements are based

on “personal knowledge about Mandarich’s record keeping systems,

policies, business and practices,” and each document attached to

the affidavit was “prepared in the ordinary course of business

by Mandarich and it was customary to make, maintain, and utilize

these documents in Mandarich’s business.” (Id. ¶¶ 7, 19.)

Therefore, the statements reflected in Ms. Whitlatch’s affidavit

are admissible because they are based on exceptions to the rule

against hearsay. Fed. R. Evid. 803(6) (statements constituting

records of regularly conducted business activity “are not

excluded by the rule against hearsay”).

To the extent Ms. Whitlatch described business records

created by entities other than Mandarich, it is well-settled

that a custodian need not have personal knowledge of the actual

creation of a document in order to attest to its contents. See

Phoenix Assocs. III v. Stone, 60 F.3d 95, 101 (2d Cir. 1995)

(stating that “[t]he custodian need not have personal knowledge

of the actual creation of the document” to lay a proper

foundation. (internal citation and quotation marks omitted));

see also Thomas v. Midland Credit Mgmt., Inc., No. 17-cv-00523

(ADS)(ARL), 2017 WL 5714722, at *9 (E.D.N.Y. Nov. 27, 2017)

(concluding that an individual who “accesses and routinely

review[s]” business records, including account-level debt files,

from different entities was a “custodian of those records” and

therefore “laid a proper foundation for the business records”).

To be sure, Ms. Whitlatch confirms that she is familiar with

records provided by plaintiff’s creditors because Ms. Whitlatch

“deal[s] with statements of account on a daily basis in the area

of creditors, including those involving Galaxy and Genesis . . .

[and] Mandarich has integrated these documents into its records

and routinely relies on them in its representation of Galaxy.”

(Whitlatch Aff. ¶ 31.) For these reasons, the court concludes

that the contents of the Whitlatch Affidavit and the supporting

exhibits do not constitute impermissible hearsay.

B. Plaintiff’s Motion to Preclude the History Report

Plaintiff argues that Exhibit C (the “history report”)

attached to the Whitlatch Affidavit should be precluded pursuant

to Rule 37(c) of the Federal Rules of Civil Procedure because

the history report was disclosed after the close of discovery,

allegedly in violation of defendant’s discovery obligations.

(Pl. Mot. to Strike at 6.) The court finds preclusion

unwarranted and has considered the history report in evaluating

the parties’ instant cross-motions for summary judgment.

Rule 37 of the Federal Rules of Civil Procedure

authorizes sanctions for failing to comply with discovery

obligations. “If a party fails to provide information or

identify a witness as required by Rule 26(a) or (e), the party

is not allowed to use that information or witness to supply

evidence on a motion ... unless that failure was substantially

justified or harmless.” Fed. R. Civ. P. 37(c)(1). Nonetheless,

courts have concluded that “[p]reclusion is a ‘harsh remedy’

that ‘should be imposed only in rare situations.’” Izzo v. ING

Life Ins. & Annuity Co., 235 F.R.D. 177, 186 (E.D.N.Y.

2005) (quoting Update Art, Inc. v. Modiin Publ'g, Ltd., 843 F.2d

67, 71 (2d Cir. 1988)); see Update Art, Inc. v. Modiin Pub.,

Ltd., 843 F.2d 67, 71 (2d Cir. 1988) (noting that preclusion of

evidence is a “harsh remed[y] and should be imposed only in rare

situations”); Hamilton v. City of Peekskill Police Dep't, No.

13-cv-8138 (NSR), 2015 WL 4635692, at *4 (S.D.N.Y. Aug. 3, 2015)

(“[T]he imposition of sanctions under Rule 37(c) for failure to

comply with disclosure obligations is discretionary,

and preclusion will be ordered only in rare cases.”).

In considering whether preclusion of information is

warranted under Rule 37(c), a district court must consider “(1)

the party’s explanation for the failure to comply with the

disclosure requirement; (2) the importance of the [evidence];

(3) the prejudice suffered by the opposing party as a result of

having to prepare to meet the new [evidence]; and (4) the

possibility of a continuance.” Design Strategy, Inc. v. Davis,

469 F.3d 284, 296 (2d Cir. 2006) (alteration omitted).

Here, plaintiff argues that this history report was

“duly demanded in Plaintiff’s First Request for the Production

of Documents and was not produced in response thereto.” (Pl.

Mot. to Strike at 6.) Defendant admits that the history report

was “arguably responsive to Plaintiff’s Request to Produce No.

23,” but notes that defendant timely objected to plaintiff’s

request and plaintiff made no additional effort to obtain the

history report from defendant. (Def’s Opp. to Mot. to Strike at

10-11.) In relevant part, defendant’s response to plaintiff’s

request for production stated:

REQUESTS TO PRODUCE

23. Notes and entries in Defendant's computer

system concerning Plaintiff and/or the Debt.

RESPONSE: Defendant OBJECTS to Request No.

23 as calling for attorney-client privilege

and work product. Defendant is withholding

documents responsive to Request No. 23

pursuant to privilege including its Account

History report prepared for purposes of

litigation against Plaintiff. The report was

prepared by Defendant and is in possession

of its counsel.

(ECF No. 30-6, Defendant’s Responses to Plaintiff’s Request for

Production, Response #23, at 5.) Defendant identified the

“Account History report” and stated its position that the report

was protected by the attorney-client privilege or by the work

product doctrine. (Id.) The record does not reflect that

plaintiff moved to compel discovery or meet and confer with

defense counsel to resolve disputes regarding the report.

Accordingly, defendant argues that plaintiff failed to

meaningfully participate in the discovery process and cannot now

seek to preclude the history report. (Def’s Opp. to Mot. to

Strike at 11.)

Applying the foregoing factors here, the court

concludes that this case is not a “rare situation[]” where

preclusion of the history report is warranted and, accordingly,

denies plaintiff’s motion to preclude the history report.

First, as noted above, defendant provided a reasonable

explanation why defendant identified but did not produce the

history report to plaintiff -- namely, defendant’s belief that

the history report was covered by the attorney-client privilege

or work-product doctrine. (Def’s Opp. to Mot. to Strike at 10-

11); see, e.g., Cargill, Inc. v. Sears Petroleum & Transp.

Corp., 334 F. Supp. 2d 197, 247-48 (N.D.N.Y. 2004) (declining to

preclude evidence under Rule 37, which was previously withheld

on the basis of attorney-client privilege). In other words,

defendant’s decision not to disclose the history report was

based on appropriate grounds and plaintiff could have sought a

ruling regarding the applicability of the attorney-client

privilege or work-product doctrine. See Lujan v. Cabana Mgmt.,

Inc., 284 F.R.D. 50, 68 (E.D.N.Y. 2012) (“Substantial

justification may be demonstrated where there is justification

to a degree that could satisfy a reasonable person that parties

could differ as to whether the party was required to comply with

the disclosure request or if there exists a genuine dispute

concerning compliance.”).

Second, the history report is significant and

important to defendant’s motion for summary judgment regarding

plaintiff’s claim that the Collection Letter was not supported

by meaningful attorney involvement because the history report

describes the different responsibilities and processes an

attorney performed in evaluating the collection of plaintiff’s

debt.

Third, the prejudice suffered by plaintiff was, in

large part, due to plaintiff’s failure to actively participate

in the discovery process. Indeed, the plain language of

defendant’s response notes that “Defendant is withholding

documents responsive to Request No. 23 pursuant to privilege

including its Account History report prepared for purposes of

litigation against Plaintiff. The report was prepared by

Defendant and is in possession of its counsel.” (ECF No. 30-6,

Defendant’s Responses to Plaintiff’s Request for Production,

Response #23, at 5.) Accordingly, plaintiff was aware of the

existence of the “Account History report,” and failed to follow

up and obtain a court order compelling production of the

materials from defendant. To the contrary, the docket shows

that plaintiff failed to respond to defendant’s discovery

requests, leading to a letter from defendant to Magistrate Judge

Gold, detailing plaintiff’s noncompliance with her discovery

obligations. (See ECF No. 14, Letter from Defendant dated June

5, 2020 (describing defendant’s efforts to obtain discovery

responses from plaintiff).) The docket also shows that

plaintiff took no action to meet and confer and seek court

intervention to compel discovery from defendant. For these

reasons, any objection plaintiff now makes regarding the

inclusion of the history report is unwarranted based, in part,

on plaintiff’s failure to actively seek a discovery order during

this litigation.

Finally, a continuance is not warranted here, as

plaintiff has given no indication that she would like additional

time to depose the attorney who reviewed plaintiff’s account or

anyone else potentially involved in creating the history report.

See Young v. Cabrera, No. 18-cv-3028 (RPK)(ST), 2020 WL 7042759,

at *7 (E.D.N.Y. Nov. 30, 2020). Plaintiff has also not moved to

resist summary judgment on the grounds that she needs additional

discovery to rebut the Whitlatch Affidavit. See Fed. R. Civ. P.

56(d). Moreover, as discussed above, plaintiff was aware of the

existence of the history report and failed to actively seek the

document from defendant; accordingly, the goal underlying Rule

37 to prevent the practice of “sandbagging” an opponent with new

evidence is not applicable here. See Fleming v. Verizon New

York, Inc., 2006 WL 2709766, at *7-8 (S.D.N.Y. Sept. 22, 2006)

(noting the purpose of Fed. R. Civ. P. 37(c)(1) is to “prevent

the practice of ‘sandbagging’ an opposing party with new

evidence”). Considering all the factors, and in light of the

totality of circumstances, the court finds in its discretion

that excluding the history report is not warranted as a sanction

pursuant to Rule 37.

Having concluded that the Whitlatch Affidavit and

supporting exhibits are admissible for purposes of resolving

plaintiff’s and defendant’s cross-motions for summary judgment,

the court next turns to the merits of the parties’ motions for

summary judgment.

II. The Parties’ Cross-Motions for Summary Judgment

Plaintiff brought this action pursuant to the FDCPA

and both parties have cross-moved for summary judgment on all of

plaintiff’s claims. “A violation under the FDCPA requires that

(1) the plaintiff be a ‘consumer’ who allegedly owes the debt or

a person who has been the object of efforts to collect a

consumer debt, (2) the defendant collecting the debt must be

considered a ‘debt collector,’ and (3) the defendant must have

engaged in an act or omission in violation of the FDCPA’s

requirements.” Derosa v. CAC Fin. Corp., 278 F. Supp. 3d 555,

559–60 (E.D.N.Y. 2017), aff’d, 740 F. App’x 742 (2d Cir. 2018).

The parties do not dispute that plaintiff has satisfied the

first two elements of her FDCPA claim: (1) that plaintiff is a

consumer who allegedly owes a debt; and (2) that Mandarich is a

debt collector under the FDCPA. (See Def. Resp. ¶¶ 1, 3-4; ECF

No. 8, Answer, ¶¶ 6, 9); see 15 U.S.C. § 1692a(3) (A “consumer”

is defined as “any natural person obligated or allegedly

obligated to pay any debt”); § 1692a(6) (A “debt collector” is a

person “who regularly collects . . . debts owed . . . another”

or a person involved “in any business the principal purpose of

which is the collection of any debts.”). Because it is

undisputed that plaintiff is a consumer and that Mandarich is a

debt collector, the only remaining question is the final element

of plaintiff’s FDCPA claim: whether Mandarich engaged in any act

or omission in violation of the FDCPA.

Plaintiff challenges the Collection Letter on the

following grounds in her complaint: The first and second counts

allege that the letter fails to state the amount of debt

purportedly owed in violation of §§ 1692g(a)(1), 1692e,

1692e(2)(A), and 1692e(10) (see Compl. ¶¶ 35-68); the third and

fourth counts allege that the letter fails to identify the

correct creditor to whom plaintiff’s alleged debt is purportedly

owed in violation of §§ 1692g(a)(2), 1692e, 1692e(2)(A), and

1692e(10) (id. ¶¶ 69-116); the fifth and seventh counts allege

that the letter’s format and letterhead overshadow the

statutorily required validation notice in violation of §§ 1692g,

1692e (id. ¶¶ 117-153, 168-220); and the plaintiff alleges in

count six that the letter misleads the consumer into believing

that an attorney was meaningfully involved in a review of her

debt in violation of § 1692e(3) (id. ¶¶ 154-67).

Section 1692(e) states, in relevant part, that a “debt

collector may not use any false, deceptive, or misleading

representation or means in connection with the collection of any

debt.” The subsections plaintiff alleges that defendant

violated are:

•

1692e(2)(A): The false representation of the character,

amount, or legal status of any debt.

•

1692e(3): The false representation or implication that

any individual is an attorney or that any communication

is from an attorney.

•

1692e(10): The use of any false representation or

deceptive means to collect or attempt to collect any debt

or to obtain information concerning a consumer.

Plaintiff also alleges that defendant violated Section

1692g(a), which provides that the defendant’s collection letter

must contain the following information:

(1) the amount of the debt; (2) the name of

the creditor to whom the debt is owed; (3) a

statement that unless the consumer, within

thirty days after receipt of the notice,

disputes the validity of the debt, or any

portion thereof, the debt will be assumed to

be valid by the debt collector; (4) a

statement that if the consumer notifies the

debt collector in writing within the thirty-

day period that the debt, or any portion

thereof, is disputed, the debt collector will

obtain verification of the debt or a copy of

a judgment against the consumer and a copy of

such verification or judgment will be mailed

to the consumer by the debt collector; and (5)

a statement that, upon the consumer's written

request within the thirty-day period, the debt

collector will provide the consumer with the

name and address of the original creditor, if

different from the current creditor.

“Debt collectors violate the FDCPA if they fail to

provide this information or if they provide this information but

then make other ‘communications’ that ‘overshadow’ parts of the

disclosure — namely, the so-called ‘validation notice’ required

by subsections (3) through (5), which informs consumers that

they have a right to verify and dispute the debt and to receive

information about the original creditor.” Taylor v. Am.

Coradius Int'l, LLC, No. 19-cv-4890 (EK)(VMS), 2020 WL 4504657,

at *1 (E.D.N.Y. Aug. 5, 2020).

Plaintiff also alleges that defendant violated

Section 1692g(b), which provides as follows:

If the consumer notifies the debt collector in

writing within the thirty-day period described

in subsection (a) that the debt, or any

portion thereof, is disputed, or that the

consumer requests the name and address of the

original creditor, the debt collector shall

cease collection of the debt, or any disputed

portion thereof, until the debt collector

obtains verification of the debt or a copy of

a judgment, or the name and address of the

original creditor, and a copy of such

verification or judgment, or name and address

of the original creditor, is mailed to the

consumer by the debt collector. Collection

activities and communications that do not

otherwise violate this subchapter may continue

during the 30-day period referred to in

subsection (a) unless the consumer has

notified the debt collector in writing that

the debt, or any portion of the debt, is

disputed or that the consumer requests the

name and address of the original creditor. Any

collection activities and communication

during the 30-day period may not overshadow or

be inconsistent with the disclosure of the

consumer’s right to dispute the debt or

request the name and address of the original

creditor.

In determining whether a communication violates the

FDCPA, courts analyze the communication using a “least

sophisticated consumer” standard. Greco v. Trauner, Cohen &

Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir. 2005). Under this

standard, “a collection notice can be misleading if it is open

to more than one reasonable interpretation, at least one of

which is inaccurate.” Taylor v. Fin. Recovery Servs., 886 F.3d

212, 214 (2d Cir. 2018) (internal quotation marks and citation

omitted). The standard, however, will not render debt

collectors liable for “bizarre or idiosyncratic interpretations

of debt collection letters,” Greco, 412 F.3d at 363 (internal

quotation marks and citation omitted), or “unreasonable

misinterpretations of collection notices,” Clomon v. Jackson,

988 F.2d 1314, 1319 (2d Cir. 1993).

As a foundational matter, the court must first address

the parties’ conflicting statements of law regarding the burden

of proof in FDCPA actions. (See Pl. Opp. at 4-5; Def. Reply at

1-2.) It is well-settled that, “[i]n a civil case, the

plaintiff bears the burden of proving the elements of his claim

by a preponderance of the evidence.” Velasquez v. United States

Postal Serv., 155 F. Supp. 3d 218, 227 (E.D.N.Y. 2016). At the

summary judgment stage, the Second Circuit has explained that

where, as here, a defendant moves for summary judgment against a

plaintiff who bears the burden of proving the factual elements

of the claims asserted, if the “defendant-movant submits an

evidentiary proffer sufficient to defeat a claim, a plaintiff

who bears the burden of proof cannot win without proffering

evidence sufficient to allow a trier of fact to find in its

favor on each fact material to its claim(s).” Jackson v. Fed.

Exp., 766 F.3d 189, 195 n.3 (2d Cir. 2014); see also Powell v.

Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (Once

defendant-movant “demonstrates an absence of a genuine issue of

material fact,” plaintiff bears burden of production to show

“specific facts showing that there is a genuine issue for trial”

for each such fact).

Applying these principles to the summary judgment

motions here, the court notes that once defendant-movant has

submitted evidence establishing that there is no genuine dispute

of material fact regarding the viability of plaintiff’s FDCPA

claims, it is insufficient for plaintiff to argue, inter alia,

that defendant failed to prove its compliance with the FDCPA

(i.e., failed to prove plaintiff’s obligation to pay the

underlying debt, failed to show proper chain of title

transferring ownership of the debt, and failed to show defendant

did not misrepresent the amount of the debt). As a non-moving

party with the burden of proof, once confronted with defendant’s

admissible evidence showing no genuine dispute of material fact,

plaintiff must provide admissible evidence establishing a

factual dispute regarding defendant’s alleged violation of the

FDCPA in order to withstand defendant’s motion for summary

judgment. See Jenkins v. LVNV Funding, LLC, No. 14-cv-5682

(SJF)(AKT), 2017 WL 1323800, at *8 (E.D.N.Y. Feb. 28, 2017)

(requiring debt buyer to produce agreement between debtor and

original creditor to refute a FDCPA § 1692(f) violation “turns

the burden on its head”); Moore v. Mortg. Elec. Registration

Sys., Inc., No. 10-cv-241, 2013 WL 1773647, at *4 (D.N.H. Apr.

25, 2013) (observing that “the defendants are not required to

prove that they did not violate the FDCPA; rather, the

[plaintiffs] must prove that they did”).

With these principles in mind, the court turns to the

merits of plaintiff’s FDCPA claims. For the reasons set forth

below, the court grants defendant’s motion for summary judgment

as to all of plaintiff’s claims.

III. The Amount of the Alleged Debt and Identification of the

Creditor (Counts 1, 2, 3, and 4)

Plaintiff asserts that defendant violated Sections

1692e, 1692e(2)(A), 1692e(10), 1692g(a)(1), and 1692g(a)(2)

by failing to state the amount of any debt allegedly owed and by

failing to state the name of the creditor or falsely stating the

name of the creditor. (See Compl. ¶¶ 35-116 (Counts 1, 2, 3,

and 4); Pl. Opp. at 9-16.) In support of her motion, plaintiff

states that the “common thread of all of” plaintiff’s claims is

that plaintiff did not incur the debt -- in other words, that

“[d]efendant has failed to come forward with any evidence to

establish the existence of the alleged Debt.” (Pl. Mem. at 14-

15.) Further, in opposition to defendant’s motion to dismiss,

plaintiff argues that “there is no evidence in the record to

show that debt ever existed and, if it did, that Galaxy is the

creditor to whom the Alleged Debt is purportedly owed, and

Plaintiff avers that she does not know who or what Galaxy is

and/or its alleged connection to the debt purportedly owed.”

(Pl. Opp. at 16.) Plaintiff concludes that “[a]bsent such

proof,” the court “must find” that Mandarich was seeking to

collect a debt on behalf of an entity with no rights to the

alleged debt, and therefore violated the FDCPA “as a matter of

fact and law.” (Id.)

In response, defendant argues that evidence in the

record refutes plaintiff’s unsupported assertions because the

Collection Letter accurately states both the amount of

plaintiff’s debt and the creditor to whom that debt is owed.

(Def. Opp. at 2-3 (citing ECF No. 24-3, Exhibit C (sales

documents establishing chain of title and redacted exhibit

reflecting details concerning plaintiff’s credit account with

Raymour & Flanigan))).

Under the FDCPA, a debt collector is obligated to

identify “the name of the creditor to whom the debt is owed,” 15

U.S.C. § 1692g(a)(2), and “may not use any false, deceptive, or

misleading representation or means in connection with the

collection of any debt,” 15 U.S.C. § 1692e. Whether the debt

collection letter identifies the name of the creditor to whom

the debt is owed is assessed from the perspective of the “least

sophisticated consumer.” Ocampo v. Client Servs., Inc., No. 18-

CV-4326 (BMC), 2019 WL 2881422, at *2 (E.D.N.Y. July 3, 2019)

(quoting Clomon, 988 F.2d at 1318).

Upon review of the record presented by the parties,

the court concludes that no reasonable jury could find from the

Collection Letter that Mandarich violated the FDCPA by failing

to state the amount of any debt owed and by failing to state the

name of the creditor or falsely stating the name of the

creditor. A plain reading of the Collection Letter shows that

the letter conforms with the requirements set forth in §

1692g(a)(2) and clearly states “the name of the creditor to whom

the debt is owed.” Specifically, in the letter, Mandarich

properly identified the “Current Creditor,” “Original Creditor,”

“Original Creditor Account No.,” and “Current Balance Due:

$2,390.07.” (See Collection Ltr.) Furthermore, the first

sentence of the Collection Letter states that plaintiff’s

“account has been sold and assigned to our client, Galaxy

International Purchasing, LLC.” (Id.)

Under these circumstances, the court concludes that

the least sophisticated consumer in plaintiff’s position would

understand that she has a credit card, and she can match the

account number for this credit card with the account number on

the letter. See Glick v. Client Servs., Inc., No. 18-cv-913

(RRM)(CLP), 2020 WL 6018866, at *3 (E.D.N.Y. Sept. 29, 2020)

(concluding that least sophisticated consumer could match Chase

Credit Card with account number in collection letter); Ocampo,

2019 WL 2881422, at *2 (concluding that least sophisticated

consumer could match Walmart Credit Card with account number in

collection letter identifying Synchrony Bank, even if plaintiff

did not understand the relationship between Synchrony and

Walmart). Here, plaintiff need not be an “expert on credit card

processing” to match the account number provided with the

Raymour & Flanigan credit card “in her wallet that she used to

incur thousands of dollars in unpaid debt.” Ocampo, 2019 WL

2881422, at *2; see also Eger v. Sw. Credit Sys., L.P., No. 17-

cv-0819 (SJF)(AYS), 2019 WL 1574802, at *5 (E.D.N.Y. Apr. 11,

2019) (“[E]ven the least sophisticated consumer is assumed to

know how to verify his or her account by cross-referencing it to

the account number provided.”). Thus, even if plaintiff did not

recognize Galaxy International Purchasing, LLC as the current

creditor, there is no requirement under the FDCPA that the

defendant notify the plaintiff of a sale of plaintiff’s debt.

See Taylor, 2020 WL 4504657, at *2 (“there is simply no

requirement in the statute that a debt-collection notice clearly

describe every step in the chain of ownership that the debt

travels to arrive in the current creditor's possession. Rather,

the statute requires identification only of ‘the name of the

creditor to whom the debt is owed.’”).

Moreover, defendant also provided admissible evidence

establishing the chain of title of ownership of plaintiff’s debt

as it was sold from Genesis Bankcard Services, Inc. and Genesis

Consumer Funding, LLC to Galaxy International Purchasing, LLC.

(See ECF No. 24-3, Ex. 3 (bills of sale transferring plaintiff’s

debt and redacted spreadsheet containing plaintiff’s account

information).) This documentation also confirms the valid

identification of the original and current creditor stated on

plaintiff’s Collection Letter. (Id.) Based on the foregoing,

the court concludes that the evidence proffered by Mandarich

establishes no genuine dispute of material fact for trial

regarding plaintiff’s Counts 1-4, alleging FDCPA violations for

failures to state the amount of any debt allegedly owed and the

name of the creditor.

Rather than confront the evidence submitted by

Mandarich, plaintiff improperly attempts to switch the burden of

proof to Mandarich by arguing that “there is no evidence in the

record to show that debt ever existed and, if it did, that

Galaxy is the creditor to whom the Alleged Debt is purportedly

owed, and Plaintiff avers that she does not know who or what

Galaxy is and/or its alleged connection to the debt purportedly

owed.” (Pl. Opp. at 16.) As discussed above, such evidence

does exist and is admissible for the reasons stated in this

court’s analysis of plaintiff’s motion to strike. (See supra

Discussion I.) More fundamentally, as previously explained,

plaintiff cannot withstand defendant’s motion for summary

judgment by simply stating “no evidence” exists to prove

Mandarich’s compliance with the FDCPA; instead, plaintiff must

set forth evidence showing a factual dispute as to Mandarich’s

alleged violations of the FDCPA. Here, plaintiff’s

unsubstantiated claim that she does “not know what the purchases

[on the Raymour & Flanigan credit card] were for, and [] did not

make them” is not sufficient to create a genuine dispute of

material fact. (ECF No. 30-1, Declaration of Chardee Parker in

Support of Plaintiff’s Motion for Summary Judgment (“Parker

Decl.”) ¶ 14.)

Plaintiff also argues that defendant’s evidence of

“billing statements” are insufficient to show existence of the

underlying debt because although the billing statements bear

plaintiff’s name, they were sent to an address at which

plaintiff never resided. (See Pl. Mem. at 11, 20; Parker Decl.

¶¶ 10-13.) Plaintiff argues that the use of these “billing

statements” instead support her “assertion that she was the

victim of identity theft (or mistaken identity) with respect to

the alleged Debt, and does not owe the same.” (Pl. Opp. at 2,

4.) Plaintiff asserts that the court must accept that defendant

“has not proven [p]laintiff’s obligation of the underlying debt”

because to accept defendant’s position in light of plaintiff’s

purported identity theft would be to “turn the burden on its

proverbial head, to the extent that it would require plaintiff

to prove a negative.”6 (Id. at 4.)

6 Plaintiff also describes the evidentiary standards for obtaining

default judgments in New York state court as an analogous standard for the

court to consider when assessing plaintiff’s FDCPA claims. (See Pl. Mem. at

17-19.) This court has previously rejected substantially similar arguments

in a case involving similar claims (and the same plaintiff’s firm), see

Danese v. Credit Control, LLC et al, 21-cv-435 (KAM) (JRC), after concluding

that standards under New York state law are not relevant to the FDCPA claims

brought by the plaintiff in federal court. Similarly, here, the court

declines to incorporate state law provisions into the FDCPA. See James v.

Merchs. & Prof'ls, Inc., No. 03-cv-1167 (CBA) (VVP), 2010 WL 785803, at *2

(E.D.N.Y. Mar. 8, 2010) (“[T]he contention that every violation of state law

Plaintiff’s statement of law is misguided and

incorrect. As more fully discussed above, plaintiff bears the

same burden as other civil plaintiffs in proving the elements of

her claims by a preponderance of the evidence. At summary

judgment, when confronted with evidence negating an essential

element of plaintiff’s claim, plaintiff must proffer admissible

evidence showing a genuine dispute of material fact for trial as

to the elements of her claim. For instance, here, although

plaintiff claims she cannot “prove a negative” because she

cannot provide evidence showing she was a victim of identity

theft or mistaken identity, the court disagrees. (Pl. Opp. at

4.) During discovery, plaintiff could have introduced evidence

of any purported identity theft in the form of police reports,

an FTC identity theft report, credit reports, contemporaneous

billing records, reports to her credit card company, or other

documents tending to show plaintiff did not accrue charges on

the credit card at issue. Because plaintiff failed to provide

such evidence, she cannot now withstand defendant’s motion for

summary judgment by switching the burden of proof to defendant

or simply stating that she “cannot prove a negative.” (Pl. Opp.

at 4); see Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club,

Inc., 575 F.3d 199, 204 (2d Cir. 2009) (Once the moving party

raises a federal claim under the FDCPA reflects a false, narrow, and overly

mechanical reading of the statute.” (internal quotation marks omitted)).

has met its burden, the nonmoving party normally “must come

forward with admissible evidence sufficient to raise a genuine

issue of fact for trial in order to avoid summary judgment.”).

Accordingly, defendant satisfied its burden of

demonstrating that there is no genuine dispute of material fact

with respect to the amount of the debt owed by plaintiff and the

name of the creditor, as reflected in the Collection Letter.7

For the foregoing reasons, the court concludes that no

reasonable jury could find in favor of plaintiff on Counts 1-4

and grants defendant’s motion for summary judgment as to

plaintiff’s Counts 1-4.

IV. The Validation Notice (Counts 5 and 7)

Plaintiff brought two “overshadowing” claims (Counts 5

and 7), alleging that the collection letter’s format and

letterhead overshadow the statutorily required validation notice

in violation of § 1692g(b). (Compl. ¶¶ 117-153, 168-220.) In

response to defendant’s motion for summary judgment, plaintiff

voluntarily withdrew Count 7, conceding that “[g]iven the recent

developments in case law on this topic,” Count 7 is not viable

on the facts present here. (Pl. Opp. at 17.) Accordingly, the

7 Furthermore, any alleged discrepancy in plaintiff’s address of record

is immaterial to the claims here because defendant has put forth evidence

establishing that plaintiff owed the debt, which was ultimately sold to

Galaxy International Purchasing, LLC. Furthermore, as described above,

plaintiff did not offer any evidence showing that the debt was not incurred

on plaintiff’s account, other than plaintiff’s unsubstantiated statement that

she did not accrue the debt.

court grants defendant’s motion for summary judgment on Count 7

and dismisses the claim with prejudice.

A. Law firm’s Letter Overshadowing the Validation

Notice (Count 5)

Plaintiff alleges that the Collection Letter is in

violation of §§ 1692g(b) and 1693e because the “least

sophisticated consumer could reasonably interpret” the

Collection Letter to mean that “even if she exercises her

validation right” or “disputes the validity of the debt,” she

could be subject to legal action because the letter is coming

from a law firm and is printed on the law firm’s letterhead.

(Compl. at ¶¶ 130-53.) Thus, plaintiff asserts that defendant

violated § 1692g(b) because the “potential threat of legal

action overshadows the disclosure of the consumer’s right to

dispute the debt or request the name and address of the original

creditor.” (Id. ¶ 146.) Defendant asserts that the letter

“neither threatens legal action nor overshadows the validation

notice.” (Def. Mem. at 4.)

A communication from a debt collector may be a threat

if the least sophisticated consumer “would interpret th[e]

language to mean that legal action was authorized, likely, and

imminent.” Bentley v. Great Lakes Collection Bureau, 6 F.3d 60,

62 (2d Cir. 1993) (finding that a letter “implied that the

commencement of legal proceedings was imminent” by falsely

stating that a debt collection agency was authorized to commence

legal proceedings). “[A] collection letter that ‘only advises a

debtor that the collection agency has several options with which

to pursue the debt’ will generally be found insufficient to

constitute a threat even in the eyes of the least sophisticated

consumer.” Moukengeschaie v. Eltman, Eltman & Cooper, P.C., No.

14-cv-7539 (MKB), 2016 WL 1274541, at *5 (E.D.N.Y. Mar. 31,

2016) (quoting Larsen v. JBC Legal Grp., P.C., 533 F. Supp. 2d

290, 302 (E.D.N.Y. 2008)). “Equivocal statements that a debt

collector ‘may consider additional remedies’ or ‘such action as

necessary’ . . . do not threaten imminent legal action, even

after an account has been placed with an attorney.” Guzman v.

I.C. Sys., Inc., No. 20-cv-4545 (ARR), 2021 WL 861914, at *2

(E.D.N.Y. Mar. 8, 2021) (internal quotation marks omitted); see

also Avila v. Riexinger & Assocs., LLC, 644 F. App’x 19, 22 (2d

Cir. 2016) (summary order) (explaining that, as the collection

letter stated that the debt collector “may consider additional

remedies” or “such action as necessary,” “[s]uch equivocal

statements do not give rise to liability under [s]ection

1692e”).

Here, the Collection Letter makes no reference to any

consequence of failing to pay the account. (ECF No. 1-1,

Collection Ltr.) The letterhead includes the heading “Mandarich

Law Group, LLP, Attorneys at Law” with the firm’s contact

information and lists the states in which defendant employs

attorneys licensed to practice. (Id. at 1.) Contrary to

plaintiff’s assertion, however, the mere fact that a Collection

Letter is printed on law firm letterhead does not, by itself,

imply an immediate threat of legal action overshadowing a

validation notice in violation of the FDCPA.8 See Hochhauser v.

Grossman & Karaszewski, PLLC, No. 19-cv-2468 (ARR)(RML), 2020 WL

2042390, at *5 (E.D.N.Y. Apr. 28, 2020) (“A debt collection

letter on a law firm’s letterhead does not inherently overshadow

the validation notice.”); see also Nichols v. Frederick J. Hanna

& Assocs., PC, 760 F. Supp. 2d 275, 279 (N.D.N.Y. 2011)

(“Several courts have held that a letter written on a law firm’s

letterhead is insufficient, on its own, to imply that litigation

is imminent.” (collecting cases)). The Collection Letter here

does not refer to any consequence of failing to pay the account,

does not set any deadline for plaintiff to respond, and

expressly notes that Mandarich would suspend its efforts to

collect the debt if plaintiff sought to exercise her rights to

validate the debt. (See Collection Ltr. at 1.) The validation

8 Plaintiff’s references to Second Circuit decisions requiring certain

disclosures in collection letters refer to circumstances where “the law firm

or attorney sending the letter is not, at the time of the letter’s

transmission, acting as an attorney.” Wendel v. Mullooly, Jeffrey, Rooney &

Flynn, LLP, 689 F. App’x 45, 46 (2d Cir. 2017) (summary order) (quoting Greco

v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 364 (2d Cir. 2005)). In

other words, those required disclosures govern situations where there is some

false representation of attorney involvement, not, as here, some purported

threat of immediate legal action overshadowing a validation notice. See

Greco, 412 F.3d 362-63.

notice expressly lays out the plaintiff’s rights, and “the fact

that the debt collector is a law firm does not contradict the

validation notice.” Hochhauser, 2020 WL 2042390, at *5.

Indeed, plaintiff does not identify any language purportedly

constituting an imminent legal threat and, at her deposition,

conceded that the only basis for her belief that the Collection

Letter threatened legal action was the presence of the Mandarich

letterhead. (See ECF No. 29, Joint Deposition Transcript

Appendix, Appendix D, Deposition of Chardee Parker, at 21:16-21

(“And is it your belief that this letter threatens legal

action?” A: “Yes.” Q: “Why did you believe that?” A: “Because I

saw ‘attorneys at law’ at the top.”). As explained above,

however, the fact that a collection letter is printed on law

firm letterhead, without more, is not a threat of imminent legal

action overshadowing the validation notice in violation of the

FDCPA.9 For these reasons, the court grants defendant’s motion

for summary judgment as to plaintiff’s Count 5.

9 The court recognizes that the Collection Letter states that “[t]he law

does not require [Mandarich] to wait until the end of the thirty-day period

before suing you to collect this debt.” (Collection Ltr. at 1.) Although

this statement references possible litigation, the court is satisfied that

the Collection Letter, read as a whole, would not have left the “least

sophisticated consumer” uncertain as to her rights under the FDCPA. To be

sure, the Collection Letter clarifies, after the reference to a lawsuit,

that: “If, however, you notify us in writing within the thirty-day period

described [above] . . . the law requires us to suspend our efforts (through

litigation or otherwise) to collect the debt until we mail the requested

information to you.” (Id.); see Shapiro v. Riddle & Assocs., P.C., 240 F.

Supp. 2d 287, 290 (S.D.N.Y.) (reviewing a collection letter with

substantially similar language and concluding that, read as a whole, the

collection letter would not overshadow or contradict the debt validation

notice), aff'd, 351 F.3d 63 (2d Cir. 2003). In any event, plaintiff does not

V. Meaningful Attorney Involvement (Count 6)

Finally, plaintiff alleges in her complaint that

defendant violated § 1692e(3) because the Collection Letter

“misleads consumers into believing that there is meaningful

attorney involvement in the collection of the debt.” (Compl. at

¶ 163.) Plaintiff alleges that “[n]o attorney employed by

Defendant had any meaningful involvement in the day-to-day

collection of Plaintiff’s alleged debt” and that defendant

violated § 1692e(3) by “falsely implying that its collection

letter is a communication from an attorney acting as an

attorney.” (Id. ¶¶ 159, 167.)

In her motion for summary judgment on Count 6,

plaintiff argues that the record before the court: confirms that

defendant did not require Georgia licensed attorney Darya

Yashina-Callaway (the attorney assigned to review plaintiff’s

account) “to keep contemporaneous time records”; does not

provide “the number of cases” Yashina-Callaway was working on;

shows that Yashina-Callaway may have “checked all the boxes”

when reviewing the Collection Letter; shows that Yashina-

Callaway did not review the final Collection Letter before

sending it; and finally, does not explain why Yashina-Callaway’s

“printer is located some one thousand (1000) miles away from her

reference this language in her complaint or briefing, and, as noted above,

conceded at her deposition that her only basis for believing that legal

action was imminent was the use of the law firm letterhead.

computer.” (Pl. Mem. at 21-22.) Defendant moves for summary

judgment on Count 6, stating that the record shows no genuine

dispute of material fact regarding Yashina-Callaway’s meaningful

review of plaintiff’s account file. (Def. Mem. at 15-16.)

Section 1692e(3) prohibits “[t]he false representation

or implication that any individual is an attorney or that any

communication is from an attorney.” 15 U.S.C. § 1692e(3).

“[S]ome degree of attorney involvement is required before a

letter will be considered ‘from an attorney’ within the meaning

of the FDCPA.” Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d

292, 301 (2d Cir. 2003) (citing Clomon, 988 F.2d at 1321). “[A]

letter sent on law firm letterhead, standing alone, does

represent a level of attorney involvement to the debtor

receiving the letter.” Greco, 412 F.3d at 364.

Here, the Collection Letter is printed on a law firm

letterhead and contains no disclaimer regarding the lack of

attorney involvement in the collection of plaintiff’s debt.

(See Collection Ltr.) Thus, under Second Circuit precedent, the

Collection Letter by virtue of its Mandarich letterhead,

represents “a level of attorney involvement to the debtor

receiving the letter.” Greco, 412 F.3d at 364. Accordingly,

the open question is whether an attorney was meaningfully

involved in the collection process. See Moukengeschaie, 2016 WL

1274541, *16 (A collection letter on a law firm letterhead “may

violate section 1692e(3) where ‘the attorney or firm had not, in

fact, engaged in [the] implied level of involvement.” (internal

quotation marks and citation omitted)).

In Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292

(2d Cir. 2003), the Second Circuit declined to set forth a

bright-line test to determine whether a sufficiently meaningful

attorney review has occurred in a given case, see id. at 304;

instead, the court noted that the analysis would turn on, among

other things, “precisely what information the affiants reviewed,

how much time was spent reviewing plaintiff's file, and whether

any legal judgment was involved with the decision to send the

letters,” id. at 307.

Courts in this Circuit have granted summary judgment

when law firms have provided evidence that an attorney

personally reviewed a debtor’s file before a letter was sent.

See Mizrahi v. Network Recovery Servs., Inc., No. 98-cv-528

(ERK) (JLC), 1999 WL 33127737, at *4 (E.D.N.Y. Nov. 5, 1999)

(holding that an attorney was meaningfully involved because she

conducted initial reviews of the debtor files and then divided

them amongst herself and two paralegals for further in-depth

review before letters were sent); Kapeluschnik v. Leschack &

Grodensky, P.C., No. 96-cv-2399 (ERK)(CLP), 1999 WL 33973360, at

*5 (E.D.N.Y. Aug. 26, 1999) (granting summary judgment because,

inter alia, individual attorneys were assigned to “supervise the

collection of information from creditors, and the sending of

letters in each case” and the defendant “named a specific

attorney who supervised and directed each plaintiff's case”).

In the instant case, other than contesting the

admissibility of the Whitlatch Affidavit, which this court

rejected for the reasons above, plaintiff has cited to no

evidence supporting her claim that an attorney was not

meaningfully involved in review of her debt file. On the other

hand, defendant has provided evidence describing the steps that

attorney Darya Yashina-Callaway undertook in reviewing

plaintiff’s debt file.

Specifically, defendant provided a sworn affidavit and

a detailed history report memorializing the activities taken

regarding plaintiff’s account file.10 (See Whitlatch Aff.; ECF

No. 24-1, Ex. C, History Report, at 1 (identifying plaintiff

Chardee T. Parker and plaintiff’s account number ending in

*****0991).) According to the history report, Mandarich

performed multiple background checks on plaintiff’s account “to

identify whether Parker had filed for bankruptcy, was

10 To the extent the Whitlatch Affidavit arguably contains some

inadmissible evidence in the form of hearsay testimony (e.g., information

exceeding Ms. Whitlatch’s personal knowledge), the court concludes that

defendant could present the contents of such evidence in an admissible form

at trial. See Harleysville Worcester Ins. Co. v. Wesco Ins. Co., 752 F.

App’x 90, 93–94 (2d Cir. 2019) (summary order) (“[S]o long as evidence ‘will

be presented in admissible form at trial,’ it may be considered on summary

judgment.” (quoting Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001))).

imprisoned, in the military, or was deceased according to the

social security index.” (Whitlatch Aff. ¶¶ 25-26; History

Report at 2-3.) Further, after the plaintiff’s records were

collected by Mandarich, on September 4, 2018, a legal assistant

“reviewed the account for sufficient media and jurisdiction.”

(History Report at 6.)

On September 20, 2018, attorney Yashina-Callaway

conducted an initial review plaintiff’s media by reviewing

plaintiff’s account files, including client information

submitted by Galaxy International Purchasing, LLC, and also bill

of sale files providing chain of title information for

plaintiff’s account. (Whitlatch Aff. ¶¶ 34-36; History Report

at 6.) Pursuant to Mandarich’s internal “Attorney Meaningful

Involvement Procedure” (see ECF No. 24-1, Ex. B, Attorney

Meaningful Involvement Procedure (the “policy”)), Yashina-

Callaway “reviewed all the Account statements, including the

final charge-off statement, for Parker’s Account.” (Whitlatch

Aff. ¶ 37.) The history report indicates that an “[a]ttorney

has reviewed minimum requirements for potential suit

eligibility; the account will be placed for collections.”

(History Report at 6.) On September 13, 2018, the history

report notes, “Initial Attorney Review Completed – Pass.”

(History Report at 7.) In sum, the undisputed record evidence

establishes that plaintiff’s account file -- including account-

level information about plaintiff’s debt, charges accrued, and

the sale of the debt to Mandarich’s client -- was reviewed by

both a legal assistant and a practicing attorney before the

Collection Letter was sent on November 8, 2019.11 Moreover, the

degree of the attorney review suggests some legal judgment was

necessarily exercised because Yashina-Callway “reviewed minimum

requirements [of plaintiff’s account] for potential suit

eligibility” before concluding that “the account will be placed

for collections.” (History Report at 6.) Based on this record,

the court concludes that there is no genuine dispute of material

fact regarding attorney Yashina-Callaway’s meaningful

involvement in reviewing plaintiff’s account file, and,

accordingly, grants defendant’s motion for summary judgment on

Count 6.

11 Moreover, the court also notes that plaintiff failed to provide

evidence suggesting that Mandarich’s review of plaintiff’s file was cursory

or otherwise in violation of standards established by the Second Circuit.

See Clomon, 988 F.2d at 1320 (finding liability under section 1692e(3) based

on mass-produced collection letters bearing the facsimile signature and

letterhead of an attorney who “played virtually no day-to-day role in the

debt collection process,” including reviewing neither the consumers' files

nor the collection letters); Miller, 321 F.3d at 304 (finding a mere review

of basic information such as name, social security number, address, telephone

number, account number and alleged balance due alone is not the exercise of

professional judgment needed concerning the existence of a valid debt before

sending a collection letter). As discussed above, once defendant carried its

burden in providing evidence showing no genuine dispute of material fact

regarding plaintiff’s claim, plaintiff, as the party with the burden of proof

at trial on her claims, cannot withstand summary judgment without proffering

evidence sufficient to allow a trier of fact to find in her favor on her

claim (i.e., without proffering evidence showing a dispute of material fact).

See Jackson, 766 F.3d 195 n.3.

VI. Plaintiff’s Request to Amend the Complaint

Finally, plaintiff requests this court grant leave to

amend to add an “unauthorized practice of law” claim to the

complaint pursuant to Federal Rule of Civil Procedure 15. (Pl.

Mem. at 24-25.) Specifically, plaintiff asserts that Georgia-

licensed attorney Yashina-Callaway engaged in the unauthorized

practice of law by sending a collection letter to a New York

resident. (Id.)

Although “[t]he court should freely give leave

[to amend] when justice so requires,” Fed. R. Civ. P. 15(a)(2),

the decision whether to grant a plaintiff’s motion to file an

amended complaint remains within the court’s discretion,

see Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995),

and an amendment may be prohibited where there has been bad

faith or dilatory motives, where the amendment would be futile,

or where the amendment would cause undue delay or undue

prejudice to the opposing party. See Foman v. Davis, 371 U.S.

at 178, 182 (1962).

Here, the court denies plaintiff leave to amend

because the proposed amendment would be futile. Specifically,

plaintiff cites to no legal authority holding that an out-of-

state attorney’s initial review of a debt file would constitute

the unauthorized practice of law in New York, where the

collection letter was ultimately sent by a debt collector

licensed in the State of New York. Indeed, the authority cited

by plaintiff stands for the unremarkable proposition that a debt

collector violates the FDCPA when the debt collector operates

without a license as required by New York City regulations.

(See Pl. Mem. at 24 (citing Williams v. Goldman & Steinberg,

Inc., No. 03-cv-2132 (DGT), 2006 WL 2053715, at *1 (E.D.N.Y.

July 21, 2006)).) It is undisputed that Mandarich is licensed

to operate in the State and City of New York, and it is clear

that the Collection Letter is from Mandarich Law Group, LLP.

(See Collection Ltr.) For these reasons, plaintiff’s request

for leave to amend is denied.

CONCLUSION

For the foregoing reasons, defendant’s motion for

summary judgment is granted in its entirety. Plaintiff’s motion

for summary judgment is denied. The Clerk of Court is

respectfully requested to enter judgment for defendant and close

this case.

SO ORDERED.

/s/

Hon. Kiyo A. Matsumoto

United States District Judge

Eastern District of New York

Dated: Brooklyn, New York

June 9, 2021