Okyere v. Palisades Collection, LLC
2013 U.S. Dist. LEXIS 132002
S.D.N.Y.2013Background
- Poku Okyere sues Houslanger Defendants and Palisades for FDCPA violations and conversion; Moses is sued for conversion.
- 2004 Palisades suit and default judgment against Okyere based on a possibly false affidavit of service.
- 2011 court restrains Okyere’s bank account to enforce the judgment; Okyere later seeks vacatur and a return of funds.
- April 25, 2011 order stayed enforcement; May 12, 2011 order vacates judgment and requires return of funds; Palisades and Houslanger allegedly did not comply.
- May 13–17, 2011 funds seized by Marshal Moses from Okyere’s account; money later returned to Okyere after dispute; Okyere claims ongoing improper hold and conversion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1692f catchall claim lies with alleged conduct | 1692f covers unfair acts not listed elsewhere | 1692f should not apply where conduct fits other FDCPA provisions | Yes, § 1692f claim permitted as catchall when conduct is unfair and unconscionable |
| Whether Moses can be liable for conversion | Moses’s seizure violated a court order and harmed Okyere | Moses acted within his discretion as marshal; immunity argued | Moses’s dismissal arguments rejected; conversion claim sustained against Moses |
| Whether Houslanger Defendants can be liable for conversion | Houslanger defendants participated in or directed seizure in violation of order | No direct violation; service and knowledge issues | Liability for conversion against Houslanger Defendants denied dismissal; claims survive |
| Whether Palisades can be liable for conversion | Palisades exercised dominion over funds and benefited from holding | Insufficient evidence of Palisades control over funds | Palisades conversion claim not dismissed; viable with inferences of control |
| Whether punitive damages are prematurely addressed on motion to dismiss | Punitive damages are a potential remedy arising from conversion | Punitive damages require malice/intent; premature to decide on motion to dismiss | Premature to dismiss punitive damages; damages issue reserved |
Key Cases Cited
- Foti v. NCO Financial Systems, Inc., 424 F.Supp.2d 643 (S.D.N.Y.2006) (FDCPA § 1692f can reach conduct not listed in other sections)
- Osborn v. Ekpsz, LLC, 821 F.Supp.2d 859 (S.D.Tex.2011) (1692f as catchall for unfair practices slipping by others)
- Polanco v. NCO Portfolio Management, Inc., 930 F.Supp.2d 547 (S.D.N.Y.2013) (collective actions under 1692f for improper use of court process)
- Simmons v. Roundup Funding, LLC, 622 F.3d 93 (2d Cir.2010) (FDCPA interaction with court processes; not exempt from liability)
- Gabriele v. Am. Home Mortg. Servicing, Inc., 503 F.App’x 89 (2d Cir.2012) (actions taken in furtherance of legal action not per se exempt from FDCPA)
- LeBlanc v. Unified CCR Partners, 601 F.3d 1185 (11th Cir.2010) (interpretation of ‘unfair’/‘unconscionable’ under 1692f)