Puglisi v. Debt Recovery Solutions, LLC
822 F. Supp. 2d 218
E.D.N.Y2011Background
- Plaintiff Puglisi sues Debt Recovery Solutions under FDCPA and EFTA, alleging improper debt collection practices.
- Defendant is a debt collector with ~12 collectors, in business eight years, collecting Verizon debt from Puglisi.
- Parties previously reached a postdated payment agreement: $100 due Nov 23, 2007 and $154.38 due Dec 23, 2007, to be withdrawn automatically.
- Defendant allegedly deposited a postdated December 23, 2007 payment on December 17, 2007 without notice, causing bounced check fees and bank charges.
- Undated letter in Dec. 2007 indicated a $125 balance (including a $25 bounced check fee) and referenced an earlier $100 amount due.
- Plaintiff asserts the $25 bounced check fee exceeded state-law limits; defendant contends the fee was not imposed by defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA bona fide error defense applicability | Puglisi argues bona fide error not applicable due to alleged legal mistake. | Debt Recovery Solutions asserts clerical error with procedures reasonably adapted to avoid such errors. | Granted: bona fide error defense applies; early withdrawal claims resolved in defendant's favor. |
| FDCPA early withdrawal claims viability | Plaintiff argues improper early withdrawal and lack of advance notice violated FDCPA. | Defendant maintains it committed a clerical error despite procedures to avoid such errors. | Denied: claims survived as to whether they were bona fide errors but granted on defense; overall resolution favors defendant on these claims. |
| FDCPA bounced check fee claims, whether defendant attempted to collect $25 | Undated letter and account logs show a $25 fee; defendant admitted the $25 reflected a bounced check fee. | Defendant denies imposing or collecting the fee; admission may refer to bank fees, not defendant's collection. | Either way: genuine dispute on whether defendant attempted to collect the bounced check fee; summary judgment denied to both parties. |
| EFTA preauthorized transfer and notice requirement | Defendant failed to provide advance written notice for a preauthorized electronic fund transfer. | There was no preauthorized recurring transfer; only two one-time withdrawals; no notice required. | Granted: no preauthorized electronic funds transfer existed; no notice required; EFTA claim dismissed. |
Key Cases Cited
- Bentley v. Great Lakes Collection Bureau, 6 F.3d 60 (2d Cir. 1993) (least sophisticated consumer standard for FDCPA deception)
- Barrientos v. Law Offices of Mark L. Nichter, 76 F. Supp. 2d 510 (S.D.N.Y. 1999) (deceptiveness includes ambiguous or multi-meaning notices)
- Russell v. Equifax A.R.S., 74 F.3d 30 (2d Cir. 1996) (clarifies deceptive meaning in notices under FDCPA)
- Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22 (2d Cir. 1989) (bona fide error defense framework under FDCPA)
- Beattie v. D.M. Collections, Inc., 754 F. Supp. 383 (D. Del. 1991) (summaries of procedures and training to avoid FDCPA violations)