Marino v. Hoganwillig, PLLC
2012 U.S. Dist. LEXIS 57496
W.D.N.Y.2012Background
- In 2009 Marino incurred debt to Harlem Anesthesia for medical fees not fully covered by insurance.
- Marino claims Harlem initially accepted $760 in full satisfaction of a $1,380 debt, which he purportedly sent; Harlem allegedly accepted but Plaintiff disputes accord.
- Practice First Management, Harlem’s billing agent, later referred the remaining $620 to HoganWillig for collection in Sept. 2010.
- HoganWillig sent a payment-demand letter on Sept. 8, 2010; Marino responded by ceasing contact and disputing the debt.
- Sept. 15, 2010 HoganWillig provided an itemized Harlem bill; no record of the alleged accord is found.
- HoganWillig sent two additional letters (Oct. 8 and Oct. 29, 2010) stating this was the final notification; Marino did not pay, and HoganWillig ceased activity due to internal policy changes for claims under $1,000.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Oct. 8 and Oct. 29 letters violated § 1692c(c). | Marino argues continuing communication after a cease-and-desist violated § 1692c(c). | HoganWillig contends letters fell within exceptions for specified remedies or were compelled by § 1692g(b) verification. | October 29 letter violated § 1692c(c); October 8 letter ambiguous but not saved. |
| Whether the letters violated §§ 1692e and 1692e(10) by calling a letter a final notice. | Final-letter language misled least sophisticated consumers into thinking it was their last opportunity. | Language was not misleading or material; it merely stated potential collection actions. | Final-letter language violated § 1692e and § 1692e(10). |
| Whether HoganWillig’s conduct constitutes a bona fide error under § 1692k(c). | Procedural safeguards were insufficient to prevent the alleged error. | Defendant had compliance procedures, but the evidence showed these were not applied in Marino’s account. | Bona fide error defense did not absolve liability; summary judgment denied on this ground. |
Key Cases Cited
- Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993) (tests materiality under § 1692e and protects unsophisticated consumers)
- Herbert v. Monterey Fin. Servs., Inc., 863 F. Supp. 76 (D. Conn. 1994) (final-letter interpretation; materiality standard for FDCPA)
- Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389 (6th Cir. 1998) (payment-plan notices discussed under § 1692c(c))
- Hess v. Cohen & Slamowitz LLP, 637 F.3d 117 (2d Cir. 2011) (FDCPA protections and least sophisticated consumer standard)
- Beattie v. DM. Collections, Inc., 754 F. Supp. 383 (D. Del. 1991) (procedures and bona fide error defenses under § 1692k(c))