Summary
relying on business credit card agreement to hold debt was commercial in nature
Summary of this case from Nicolaides v. Divine & Serv., Ltd.Opinion
Civil Case No. 12-6096 (FSH)
2013-10-22
DEBORAH ROSS, et al., Plaintiffs, v. PANTERIS & PANTERIS, LLP, et al., Defendants.
NOT FOR PUBLICATION
CLOSED
Hon. Faith S. Hochberg, U.S.D.J.
ORDER
HOCHBERG, District Judge:
This matter coming before this Court upon Magistrate Judge Hammer's August 29, 2013 Report and Recommendation recommending that the Court: (1) "enter summary judgment in favor of defendants (ECF No. 17);" (2) "terminate as moot plaintiffs' motions to strike (ECF Nos. 19, 33);" (3) "terminate as moot plaintiffs' motion to dismiss defendants' counterclaims (ECF No. 20), and order defendants to file on CM/ECF a stipulation of voluntary dismissal of the counterclaims without prejudice, because defendants indicated (see Reply Br., ECF No. 32, at 5-6) that they would be willing to so execute if the Court did not dismiss plaintiffs' complaint on the basis of the counterclaims, which it is not." This Court has considered the submissions of the parties pursuant to Federal Rule of Civil Procedure 78; and
it appearing that Plaintiffs filed objections to the Report and Recommendation on September 11, 2013 (ECF No. 44); and
it appearing that Defendants filed a response to Plaintiffs' objections on September 20, 2013 (ECF No. 45); and
this Court having reviewed de novo the Report and Recommendation, and good cause appearing;,
This Court has reviewed Plaintiffs' objections to Judge Hammer's Report and Recommendation. After having reviewed the Report and Recommendation de novo, including the portions objected to by Plaintiffs, the Court finds that the objections lack merit. Specifically, pro se Plaintiffs objected to the Report and Recommendation on several grounds, including: (1) Plaintiffs allege that Defendants filed their motion to dismiss supporting documentation 4 days late; (2) Plaintiffs allege that the documentation relied on by Defendants has not been authenticated and violates various rules of evidence; (3) Plaintiffs allege that Judge Hammer's order to show cause set a deadline that was too short; (4) Plaintiffs allege that the documentation relied on by Defendants contains various discrepancies and errors; and (5) Plaintiffs allege that American Express Bank FSB never hired Defendants to collect a debt. The Court addresses these arguments below.
First, the materials supporting Defendants' motion to dismiss (ECF Nos. 17 and 22) were not untimely—rather, Defendants have sworn that the materials were served and delivered to the Court in a timely manner. Even if the supporting documentation were four days late, and they were not, the Court would find that a four day delay has not prejudiced Plaintiffs.
Second, the materials supporting Defendants' motion to dismiss were properly considered by Judge Hammer. Indeed, Mr. Panteris is a named defendant in this matter and filed an affidavit stating he had personal knowledge of the material within his affidavit. (ECF No. 172.) This makes his affidavit acceptable under Federal Rule of Civil Procedure 56. Critically, Plaintiffs have not set forth any evidence that the debt at issue was personal rather than business in nature. As Judge Hammer noted, this is fatal to their FDCPA claim. Affinity Fed. Credit Union v. Allstar Contracting, LLC, Civ. No. 112423, 2011 WL 6020588 (D.N.J. Dec. 1, 2011) ("By its terms then, the FDCPA applies to only consumer debt for personal, family or household purposes and not to commercial debt." (citing Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163, 116869 (3d Cir. 1987))).
Third, the Court notes that Judge Hammer has been quite lenient with Plaintiffs' filings, some of which have been late or duplicative. Judge Hammer's order to show cause and the deadlines set therein were reasonable. Indeed, Plaintiffs responded—albeit insufficiently— within the date set by Judge Hammer's Order. To this day, Plaintiffs have filed to show that the alleged debt was consumer rather than business in nature.
Finally, the Plaintiffs' fourth and fifth arguments still do not address the substance of Judge Hammer's Report and Recommendation—there is no evidence at all that the debt at issue is a personal debt rather than a business debt. Nor are there any genuine disputes as to any material facts with respect to Plaintiffs' other alleged causes of action (nor did Defendants even raise any arguments with respect to these causes of action). For example, there is no allegation or evidence showing detrimental reliance to support fraud or misrepresentation. Plaintiffs also fail to submit any admissible evidence supporting their claim that American Express Bank FSB did not hire Defendants to collect the disputed debt.
The Court also notes that the presence of a typographical error in an affidavit does not prevent its use in assessing summary judgment.
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IT IS on this 22nd day of October, 2013,
ORDERED that Magistrate Judge Hammer's August 29, 2013 Report and Recommendation (ECF No. 42) is ADOPTED as the Opinion of this Court; and it is further
ORDERED that Defendants' Motion Summary Judgment (ECF No. 17) is GRANTED; and it is further
ORDERED that Plaintiffs' Motions to Strike (ECF Nos. 19, 33) are terminated as MOOT; and it is further
ORDERED that Plaintiffs' Motion to Dismiss Defendants' Counterclaims (ECF No. 20) is terminated as MOOT and Defendants are ORDERED to file on CM/ECF a stipulation of voluntary dismissal of the counterclaims without prejudice in accordance with Defendants' representation in ECF No. 45, at 3, by November 5, 2013; and it is further
ORDERED that the Clerk of the Court CLOSE this case.
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Hon. Faith S. Hochberg, U.S.D.J.