Opinion
Case No. 17-cv-06501 (FB) (RLM)
03-06-2020
CRISTIAN D. CORTEZ, Plaintiff, v. FORSTER & GARBUS, LLP, Defendant.
Appearances: For the Plaintiff: DAVID M. BARSHAY Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 For the Defendant: ROBERT L. ARLEO Robert L. Arleo, Esq. 380 Lexington Avenue New York, NY 10168
MEMORANDUM AND ORDER
Appearances:
For the Plaintiff:
DAVID M. BARSHAY
Barshay Sanders, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530 For the Defendant:
ROBERT L. ARLEO
Robert L. Arleo, Esq.
380 Lexington Avenue
New York, NY 10168 BLOCK, Senior District Judge :
Defendant Forster & Garbus, LLP ("Defendant") moves for reconsideration of this Court's Memorandum & Order ("Order") granting summary judgment in favor of Plaintiff Cristian D. Cortez ("Plaintiff") on claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e, et seq ("FDCPA"). See Dkt. 28. In relevant part, the Order held that a debt-collection notice Defendant mailed to Plaintiff in February 2017 ("Notice") "failed to advise" Plaintiff whether his "debt was still accruing interest and/or fees" and so amounted to a "false" or "misleading representation[]" of the "character, amount, or legal status of [the] debt" that violated the FDCPA. As explained herein, Defendant's motion for reconsideration is denied.
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Reconsideration is improper unless a movant can point to "intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). A motion for reconsideration "is not a vehicle for relitigating old issues, presenting the case under new theories . . . or otherwise taking a 'second bite at the apple.'" Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998).
In this case, Defendant's argument for reconsideration is twofold: First, Defendant asserts that the "Court mistakenly ruled that consumers are not charged with considering collection letters as a group," and that Plaintiff should have known his debt balance was incurring "interest, costs and/or other fees" in light of "other" letters Defendant sent in the five years before the Notice at issue. Second, Defendant maintains that an unpublished decision, issued one week after the Order, provides "strong support for the fact that summary judgment should have been awarded to the Defendant." See Watson v. Midland Credit Mgmt., 2019 WL 2527295 (June 19, 2019 E.D.N.Y.).
As to the first argument, Defendant cites no authority—and the Court has found none—supporting the proposition that the least sophisticated consumer is expected to decipher whether a debt will accrue interest or fees by "considering collection letters as a group;" ostensibly by culling bits of information from each letter they received over the course of several years. Nor does it follow, as Defendant argues, that the least sophisticated consumer is expected to divine whether a debt will accrue interest or fees after the date specified in the Notice (here, February 24, 2017) simply because Defendant sent "other" letters in the five years before: Whatever representations the "other" letters made (individually or "as a group") they certainly did not state if interest or fees would apply after February 24, 2017.
As to the second argument, Defendant ignores that Watson denied a debt collector's motion to dismiss because the collection notice at issue failed to state whether "Defendant might require the . . . imposition of interest and late payment fees on the debt." 2019 WL 2527295 at *6. Indeed, Watson explained that if interest or other fees accrued—which Defendant admits was the case on Plaintiff's debt—"then Defendant would be in violation of Section 1692e given Avila's requirement to disclose that interest and other fees may accrue on a debt." Id. (citing Avila v. Riexinger & Assocs., LLC, 817 F.3d 72, 74 (2d Cir. 2016)).
Finally, in sum and substance, Defendant raised both of these arguments in its briefing on the motion for summary judgment. The Court rejected the arguments then, and Defendant fails to identify any issue that the Court overlooked or an intervening change in law that would warrant reconsideration now. Sequa Corp., 156 F.3d at 144.
While Watson was issued a week after this Court's Order, the Second Circuit case on which Watson relies—Avila v. Riexinger & Assocs., LLC—was cited throughout the parties' summary judgment briefing. --------
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For the reasons stated herein, Defendant's motion for reconsideration is denied.
SO ORDERED.
/S/ Frederic Block
FREDERIC BLOCK
Senior United States District Judge Brooklyn, New York
March 6, 2020