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Jean Antoine v. J.P. Morgan Chase Bank

December 28, 2010

JEAN ANTOINE, PLAINTIFF,
v.
J.P. MORGAN CHASE BANK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James S. Gwin, United States District Judge:

OPINION & ORDER

[Resolving Doc. Nos. 85 & 89]

In this Fair Debt Collection Practices Act (FDCPA) case concerning Plaintiff Jean Antoine's mortgage, Plaintiff Antoine and Defendant debt collector Shapiro & Burson, LLP both move for summary judgment. In his motion, Plaintiff says Defendant Shapiro & Burson failed to comply with the FDCPA. [Doc. 89.] Responding, Defendant argues it satisfied the FDCPA and also moves for summary judgment. [Doc. 85.]

For the following reasons, the Court DENIES Plaintiff's motion for summary judgment. The Court GRANTS IN PART and DENIES IN PART Defendant's motion for summary judgment.

I. Background

In April 2007 Plaintiff's house in Washington, D.C. burned down. While Plaintiff was negotiating with his hazard-insurance company over the proceeds he stopped making mortgage payments to his mortgagee JP Morgan Chase Bank and fell behind by $15,179.55. [Doc. 85-2 at 1-2; Doc. 89 at 4-5.] Six months later, JP Morgan referred the matter to Shapiro & Burson, LLP, a debt collector. After Plaintiff failed to cure the default, Shapiro & Burson sold Plaintiff's house at a foreclosure sale on January 9, 2008. [Doc. 89 at 5.]

Having failed to stop the sale, Plaintiff sued JP Morgan, his insurance company American Security Insurance, and Shapiro & Burson, alleging that each Defendant participated in the improper foreclosure of his house. [Doc. 3.] For reasons irrelevant to the instant motions, on July 14, 2009 the Court granted summary judgment to Defendant American Security Insurance. [Doc. 77.] And on December 9, 2009 Defendant JP Morgan and Plaintiff reached a settlement. [Doc. 102.]

Now before the Court are cross motions for summary judgment on Plaintiff's remaining claims against Defendant Shapiro & Burson. Plaintiff's complaint alleges that the Defendant violated the FDCPA when it failed to: (1) send him a FDCPA-compliant disclosure statement; and (2) verify or otherwise correspond with him regarding the underlying debt. [Doc. 3 at ¶¶ 47-50.] Central to this controversy are two factual disputes over who sent what, and when.

The first dispute is whether Shapiro & Burson sent Plaintiff a FDCPA-compliant debt collection notice. As part of its debt collection efforts, Shapiro & Burson says that on November 13, 2007 it mailed Plaintiff compliant notice. [Doc. 85-2 at 1-2; Doc. 85-3.] Plaintiff denies receiving this letter, but concedes that Shapiro & Burson sent it. [Doc. 98 at 5.] Plaintiff's recollection is that the only letter he received from Shapiro & Burson was a "Notice of Foreclosure" on December 14, 2007, and argues that this notice does not comply with the FDCPA because it does not contain the required debt-collection disclosures. [Doc. 89 at 7; Doc. 93-6.] Responding, Defendant agrees that the Notice of Foreclosure Plaintiff received on December 14 does not satisfy the FDCPA's disclosure requirements, but says this is irrelevant because it had already complied with the Act in its initial November 13 letter. [Doc. 90 at 6-7.]

The second factual dispute is whether Plaintiff mailed or faxed letters to Shapiro & Burson contesting the debt. Plaintiff says that in response to Shapiro & Burson's December 14 Notice of Foreclosure he mailed or faxed letters to Shapiro & Burson requesting verification of his debt and "the total amount necessary to reinstate" his mortgage. [Doc. 89 at 7; Doc. 89-3.] Specifically, Plaintiff Antoine says his friend "Mo" helped him type (Antoine cannot type) and fax letters on December 14, 2007, December 21, 2007, and January 4, 2008. [Doc. 93 at 10.] According to Plaintiff, he would give Mo a handwritten copy of what he wanted Mo to type; Mo would then type each letter before calling Plaintiff to come over and sign them. Mo faxed each letter from his house or a Staples-type store. [Doc. 85-6 at 6-10.] Plaintiff might also have mailed the letters, but he is not sure. [Doc. 90-4 at 3.] Attached to each faxed letter is a time-stamped fax verification. [Doc. 89-3; Doc. 89-4; Doc. 89-5.] Besides Mo's help with the letters, Plaintiff remembers nothing about Mo-not his last name, his address, or his telephone number-other than that Mo is from Hyattsville, Maryland. [Doc. 85-6 at 6-10.]

Responding, Defendant does not dispute that these letters would have triggered its FDCPA obligation to verify Plaintiff's debt. [Doc. 90 at 7-9.] Instead, Defendant says that Plaintiff never sent these letters or, if he did, it never received them. [Doc. 90 at 7-9.] As to whether Plaintiff mailed the letters, Shapiro & Burson says Plaintiff's motion for summary judgment flatly contradicts his earlier deposition: "Q: Did you actually mail these letters as well as fax them? [Antoine] I don't remember. I didn't -- I don't send them, because there is no time to send them, I mean, to put them in the mail." [Doc. 95-1 at 3.] Defendant also argues that Plaintiff's tale that "Mo from Hyattsville" faxed the letters is simply not credible and the purported fax confirmation sheets are either fakes or cannot be authenticated. [Doc. 90 at 7-9.]

II. Legal Standard

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

Under the summary judgment standard, the moving party bears the "initial responsibility of informing the district court of the basis for [its] motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must "go beyond the pleadings and by [its] own affidavits, or depositions, answers to ...


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