Impellizzeri v. I.C. System, Inc.

MOTION for Summary Judgment

E.D.N.Y.January 31, 2017

131613848v1 0981430 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JEREMY IMPELLIZZERI, Plaintiff, - against - I.C. SYSTEM, INC., Defendant. Docket No: 15-cv-07040-JFB-GRB NOTICE OF MOTION PLEASE TAKE NOTICE, that Defendant I.C. System, Inc. (“ICS”), upon the Declaration of Concepcion A. Montoya, Esq. dated January 31, 2017 and its accompanying exhibits; the Affidavit of Michael Selbitschka dated January 31, 2017, and its accompanying exhibit; ICS’s Local Rule 56.1 Statement Of Material Facts, dated January 31, 2017; and the accompanying Memorandum of Law in Support of ICS’s Motion for Summary Judgment, dated January 31, 2017, will move this Court before the Honorable Joseph F. Bianco , United States District Judge for the United States District Court of the Eastern District of New York, 100 Federal Plaza, Courtroom 1040, Central Islip, New York 11722, on May 8, 2017, at 4:30 p.m. for an Order: (i) granting ICS summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and dismissing the Complaint in its entirety with prejudice; and (ii) granting such other and further relief as the Court deems just and proper. Case 2:15-cv-07040-JFB-GRB Document 29 Filed 01/31/17 Page 1 of 2 PageID #: 251 2 131613848v1 0981430 PLEASE TAKE FURTHER NOTICE that Plaintiff shall file and serve his opposition papers and/or cross-motion, if any, by March 1, 2017; PLEASE TAKE FURTHER NOTICE that Defendant shall file and serve its reply in support of its motion for summary judgment and/or opposition to Plaintiff’s cross-motion, if any, by March 31, 2017; PLEASE TAKE FURTHER NOTICE that Plaintiff shall serve his reply in support of a cross-motion, if any, by April 13, 2017. Dated: New York, New York January 31, 2017 HINSHAW & CULBERTSON LLP Attorneys for Defendant I.C. System, Inc. By: /s Concepcion A. Montoya Concepcion A. Montoya 800 Third Avenue, 13th Floor New York, New York 10022 Tel: (212) 471-6200 Fax: (212) 935-1166 Email: cmontoya@hinshawlaw.com TO: Craig B. Sanders BARSHAY SANDERS, PLLC Attorneys for Plaintiff 100 Garden City Plaza, Suite 500 Garden City, New York 11530 Tel: (516) 203-7600 Fax: (516) 706-5055 Case 2:15-cv-07040-JFB-GRB Document 29 Filed 01/31/17 Page 2 of 2 PageID #: 252 131613846v1 0981430 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JEREMY IMPELLIZZERI, Plaintiff, - against - I.C. SYSTEM, INC., Defendant. Docket No: 15-cv-07040-JFB-GRB DECLARATION OF CONCEPCION A. MONTOYA IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT CONCEPCION A. MONTOYA, an attorney duly admitted to practice before this Court, declares the following under penalty of perjury pursuant to 28 U.S.C. § 1746: 1. I am a partner at the law firm of Hinshaw & Culbertson LLP, counsel for Defendant I.C. System, Inc. (“ICS” or “Defendant”) in the above-referenced matter. 2. This Declaration with the annexed exhibits and the accompanying Memorandum of Law are submitted in support of Defendant’s motion for an Order: (i) pursuant to Rule 56 of the Federal Rules of Civil Procedure, granting Defendant summary judgment and dismissing Plaintiff Jeremy Impellizzeri’s (“Plaintiff”) Complaint in its entirety with prejudice; and (ii) granting such other and further relief as the Court deems just and proper. 3. Plaintiff filed the Complaint on December 10, 2015, alleging violations of the Fair Debt Collection Practices Act. A true and correct copy of the Complaint is annexed hereto as Exhibit A. 4. ICS filed its Answer on January 7, 2016 and an Amended Answer on February 8, 2016. True and correct copies of the Answer and Amended Answer are annexed hereto as Exhibits B and C, respectively. Case 2:15-cv-07040-JFB-GRB Document 29-1 Filed 01/31/17 Page 1 of 2 PageID #: 253 2 131613846v1 0981430 WHEREFORE, it is respectfully requested that this Court grant Defendant’s motion for summary judgment and grant such other and further relief as the Court deems just and proper. Dated: New York, New York January 31, 2017 s/ Concepcion A. Montoya Concepcion A. Montoya Case 2:15-cv-07040-JFB-GRB Document 29-1 Filed 01/31/17 Page 2 of 2 PageID #: 254 Exhibit A Case 2:15-cv-07040-JFB-GRB Document 29-2 Filed 01/31/17 Page 1 of 14 PageID #: 255 1 B A R S H A Y | S A N D E R S P L L C 1 0 0 G A R D E N C IT Y P L A Z A , S U IT E 5 0 0 G A R D E N C IT Y , N E W Y O R K 1 1 5 3 0 BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Garden City, New York 11530 Tel: (516) 203-7600 Fax: (516) 706-5055 Email: ConsumerRights@BarshaySanders.com Attorneys for Plaintiff Our File No.: 109843 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JEREMY IMPELLIZZERI, Plaintiff, vs. I.C. SYSTEM, INC., Defendant. Docket No: COMPLAINT JURY TRIAL DEMANDED JEREMY IMPELLIZZERI (hereinafter referred to as “Plaintiff”), by and through the undersigned counsel, complains, states and alleges against I.C. SYSTEM, INC. (hereinafter referred to as “Defendant”), as follows: INTRODUCTION 1. This action seeks to recover for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., (“FDCPA”). JURISDICTION AND VENUE 2. This Court has federal subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d). 3. Venue is proper under 28 U.S.C. §1391(b) because a substantial part of the events or omissions giving rise to the claim occurred in this Judicial District. 4. At all relevant times, Defendant conducted business within the State of New York. Case 2:15-cv-07040-JFB-GRB Document 1 Filed 12/10/15 Page 1 of 8 PageID #: 1Case 2:15-cv-07040-JFB-GRB Document 29-2 il 01/31/ 7 2 f 14 PageID #: 256 2 B A R S H A Y | S A N D E R S P L L C 1 0 0 G A R D E N C IT Y P L A Z A , S U IT E 5 0 0 G A R D E N C IT Y , N E W Y O R K 1 1 5 3 0 PARTIES 5. Plaintiff is an individual who is a citizen of the State of New York. 6. Plaintiff, a “consumer” as defined by 15 U.S.C. § 1692a(3), is allegedly obligated to pay a debt. 7. On information and belief, Defendant's principal place of business is located in Saint Paul, Minnesota. 8. Defendant is regularly engaged, for profit, in the collection of debts allegedly owed by consumers. 9. Defendant is a person who uses an instrumentality of interstate commerce or the mails in a business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another, and is therefore a “debt collector” as defined by 15 U.S.C. § 1692a(6). ALLEGATIONS 10. Plaintiff's alleged debt was primarily for personal, family or household purposes and is therefore a “debt” as defined by 15 U.S.C. § 1692a(5). 11. Sometime after the incurrence of the debt, but before the initiation of this action, Plaintiff is alleged to have fallen behind on payments allegedly owed on the alleged debt. 12. At a time known only to Defendant, Plaintiff's alleged debt was assigned or otherwise transferred to Defendant for collection. 13. In its efforts to collect the alleged debt, Defendant contacted Plaintiff by letter. (“Exhibit 1.”) 14. Defendant's letter is a “communication” as defined by 15 U.S.C. § 1692a(2). 15. As set forth in the following Counts, Defendant's letter violated the FDCPA. FIRST COUNT Violation of 15 U.S.C. § 1692g Validation of Debts 16. Plaintiff repeats and realleges the foregoing paragraphs as if fully restated herein. 17. 15 U.S.C. § 1692g provides that within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the Case 2:15-cv-07040-JFB-GRB Document 1 Filed 12/10/15 Page 2 of 8 PageID #: 2Case 2:15-cv-07040-JFB-GRB Document 29-2 il 01/31/ 7 3 f 14 PageID #: 257 3 B A R S H A Y | S A N D E R S P L L C 1 0 0 G A R D E N C IT Y P L A Z A , S U IT E 5 0 0 G A R D E N C IT Y , N E W Y O R K 1 1 5 3 0 information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing certain enumerated information. 18. One such requirement is that the debt collector provide “the name of the creditor to whom the debt is owed.” 15 U.S.C. § 1692g(a)(2). 19. A debt collector has the obligation not just to convey the name of the creditor to whom the debt is owed, but also to convey such clearly. 20. A debt collector has the obligation not just to convey the name of the creditor to whom the debt is owed, but also to state such explicitly. 21. Merely naming the creditor without specifically identifying the entity as the current creditor to whom the debt is owed is not sufficient to comply with 15 U.S.C. § 1692g(a)(2). 22. Even if a debt collector conveys the required information, the debt collector nonetheless violates the FDCPA if it conveys that information in a confusing or contradictory fashion so as to cloud the required message with uncertainty. 23. When determining whether the name of the creditor to whom the debt is owed has been conveyed clearly, an objective standard, measured by how the “least sophisticated consumer” would interpret the notice, is applied. 24. Defendant's letter to Plaintiff fails to explicitly identify the name of the creditor to whom the debt is owed. 25. Defendant's letter to Plaintiff fails to identify by name and label any entity as “creditor,” “original creditor,” “current creditor,” or “creditor to whom the debt is owed.” 26. Although Defendant's letter to Plaintiff identifies “PSEG - Long Island” under the heading “Account Summary,” it fails to explicitly identify such entity as the creditor to whom he debt is owed. 27. Defendant’s letter to Plaintiff states that Plaintiff’s account has been “turned over” to Defendant. 28. Defendant’s letter to Plaintiff demands Plaintiff’s check or money order be made payable to “I.C. System, Inc.” 29. The least sophisticated consumer would likely be confused as to whether the creditor to whom the debt is owed is “PSEG - Long Island,” or “I.C. System, Inc.” 30. The least sophisticated consumer would likely be uncertain as to whether the Case 2:15-cv-07040-JFB-GRB Document 1 Filed 12/10/15 Page 3 of 8 PageID #: 3Case 2:15-cv-07040-JFB-GRB Document 29-2 il 01/31/ 7 4 f 14 PageID #: 258 4 B A R S H A Y | S A N D E R S P L L C 1 0 0 G A R D E N C IT Y P L A Z A , S U IT E 5 0 0 G A R D E N C IT Y , N E W Y O R K 1 1 5 3 0 creditor to whom the debt is owed is “PSEG - Long Island,” or “I.C. System, Inc.” 31. Defendant failed to explicitly state the name of the creditor to whom the debt is owed. 32. Defendant failed to clearly state the name of the creditor to whom the debt is owed. 33. The least sophisticated consumer would likely be confused as to the name of the creditor to whom the debt is owed. 34. The least sophisticated consumer would likely be uncertain as to the name of the creditor to whom the debt is owed. 35. Defendant has violated § 1692g as it failed to clearly and explicitly convey the name of the creditor to whom the debt is owed. SECOND COUNT Violation of 15 U.S.C. § 1692e False or Misleading Representations as to the Name of the Creditor to Whom the Debt is Owed 36. Plaintiff repeats and realleges the foregoing paragraphs as if fully restated herein. 37. 15 U.S.C. § 1692e prohibits a debt collector from using any false, deceptive, or misleading representation or means in connection with the collection of any debt. 38. While § 1692e specifically prohibits certain practices, the list is non-exhaustive, and does not preclude a claim of falsity or deception based on any non-enumerated practice. 39. Collection notices are deceptive if they can be reasonably read to have two or more different meanings, one of which is inaccurate. 40. The question of whether a collection letter is deceptive is determined from the perspective of the “least sophisticated consumer.” 41. For purposes of 15 U.S.C. § 1692e, the failure to clearly and accurately identify the creditor to whom the debt is owed is unfair and deceptive to the least sophisticated consumer. 42. Because the collection letter in the instant case is reasonably susceptible to an inaccurate reading, as described above, it is deceptive within the meaning of 15 U.S.C. § 1692e. 43. The least sophisticated consumer would likely be deceived by Defendant's conduct. 44. The least sophisticated consumer would likely be deceived in a material way by Case 2:15-cv-07040-JFB-GRB Document 1 Filed 12/10/15 Page 4 of 8 PageID #: 4Case 2:15-cv-07040-JFB-GRB Document 29-2 il 01/31/ 7 5 f 14 PageID #: 259 5 B A R S H A Y | S A N D E R S P L L C 1 0 0 G A R D E N C IT Y P L A Z A , S U IT E 5 0 0 G A R D E N C IT Y , N E W Y O R K 1 1 5 3 0 Defendant's conduct. 45. Defendant has violated § 1692e by using a false, deceptive and misleading representation in its attempt to collect a debt. THIRD COUNT Violation of 15 U.S.C. § 1692g Validation of Debts 46. Plaintiff repeats and realleges the foregoing paragraphs as if fully restated herein. 47. 15 U.S.C. § 1692g provides that within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing certain enumerated information. 48. The written notice must contain the amount of the debt. 49. The written notice must contain the name of the creditor to whom the debt is owed. 50. The written notice must contain a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector. 51. The written notice must contain a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector. 52. The written notice must contain a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. 53. A debt collector has the obligation, not just to convey the required information, but also to convey such clearly. 54. Even if a debt collector conveys the required information accurately, the debt collector nonetheless violates the FDCPA if that information is overshadowed or contradicted by other language in the communication. 55. Even if a debt collector conveys the required information accurately, the debt Case 2:15-cv-07040-JFB-GRB Document 1 Filed 12/10/15 Page 5 of 8 PageID #: 5Case 2:15-cv-07040-JFB-GRB Document 29-2 il 01/31/ 7 6 f 14 PageID #: 260 6 B A R S H A Y | S A N D E R S P L L C 1 0 0 G A R D E N C IT Y P L A Z A , S U IT E 5 0 0 G A R D E N C IT Y , N E W Y O R K 1 1 5 3 0 collector nonetheless violates the FDCPA if that information is overshadowed by other collection activities during the 30-day validation period following the communication. 56. A collection activity or communication overshadows or contradicts the validation notice if it would make the “least sophisticated consumer” uncertain or confused as to her rights. 57. Defendant’s letter to Plaintiff includes the statement, “The account information is scheduled to be reported to the national credit reporting agencies in your creditor’s name if you fail to fulfill the terms of your credit obligations.” 58. Defendant’s statement is unintelligible. 59. Defendant’s statement is confusing. 60. The threat of reporting “the account information” “in your creditor’s name” is confusing. 61. Defendant's conduct would likely make the least sophisticated consumer uncertain as to her rights. 62. Defendant's conduct would likely make the least sophisticated consumer confused as to her rights. 63. Defendant has violated § 1692g as the above-referenced language overshadows the information required to be provided by that Section. FOURTH COUNT Violation of 15 U.S.C. § 1692f Unlawful Fee 64. Plaintiff repeats and realleges the foregoing paragraphs as if fully restated herein. 65. 15 U.S.C. § 1692f provides a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. 66. 15 U.S.C. § 1692f(1) prohibits the collection of any amount, including any interest, fee, charge, or expense incidental to the debt, unless such amount is expressly authorized by the agreement creating the debt or permitted by law. 67. Defendant maintains a website at www.icsystem.com. 68. Defendant’s website provides a payment portal, at https://ww2.yourpayment.com/, for consumers to make payments online. 69. Defendant’s payment portal sets forth that Defendant charges a processing fee of $3.00 for payments made. Case 2:15-cv-07040-JFB-GRB Document 1 Filed 12/10/15 Page 6 of 8 PageID #: 6Case 2:15-cv-07040-JFB-GRB Document 29-2 il 01/31/ 7 7 f 14 PageID #: 261 7 B A R S H A Y | S A N D E R S P L L C 1 0 0 G A R D E N C IT Y P L A Z A , S U IT E 5 0 0 G A R D E N C IT Y , N E W Y O R K 1 1 5 3 0 70. Such processing fee is neither expressly authorized by the agreement creating the debt, nor permitted by law 71. Such processing fee is prohibited by 15 U.S.C. § 1692f(1). 72. Defendant has violated 15 U.S.C. § 1692f by charging a processing fee. FIFTH COUNT Violation of 15 U.S.C. § 1692e False Representation as to Unlawful Fee 73. Plaintiff repeats and realleges paragraphs 1 through 13, 18 and 19, 68 through 76, as if fully restated herein. 74. 15 U.S.C. § 1692e prohibits a debt collector from using any false, deceptive, or misleading representations or means in connection with the collection of any debt. 75. 15 U.S.C. § 1692e(2)(A) prohibits the false representation of the character, amount, or legal status of any debt. 76. 15 U.S.C. § 1692e(2)(B) prohibits the false representation of any services rendered or compensation that may be lawfully received by any debt collector for the collection of a debt. 77. Defendant violated § 1692e by making a false representation that it is entitled to receive compensation for payment via a processing fee. 78. The least sophisticated consumer would likely be deceived by the processing fee language into believing that Defendant was legally entitled to collect the fee. 79. The least sophisticated consumer would likely be deceived in a material way by Defendant's conduct. 80. Defendant has violated § 1692e by using a false, deceptive and misleading representation in its attempt to collect a debt. JURY DEMAND 81. Plaintiff hereby demands a trial of this action by jury. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests judgment as follows: Case 2:15-cv-07040-JFB-GRB Document 1 Filed 12/10/15 Page 7 of 8 PageID #: 7Case 2:15-cv-07040-JFB-GRB Document 29-2 il 01/31/ 7 8 f 14 PageID #: 262 8 B A R S H A Y | S A N D E R S P L L C 1 0 0 G A R D E N C IT Y P L A Z A , S U IT E 5 0 0 G A R D E N C IT Y , N E W Y O R K 1 1 5 3 0 a. Statutory damages of $1,000.00 against Defendant pursuant to 15 U.S.C. § 1692k; and b. Plaintiff's attorneys' fees pursuant to 15 U.S.C. § 1692k; and c. Plaintiff's costs; all together with d. Such other relief that the Court determines is just and proper. DATED: December 10, 2015 BARSHAY SANDERS, PLLC By: _/s/ Craig B. Sanders _____ BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Garden City, New York 11530 Tel: (516) 203-7600 Fax: (516) 706-5055 csanders@barshaysanders.com Attorneys for Plaintiff Our File No.: 109843 Case 2:15-cv-07040-JFB-GRB Document 1 Filed 12/10/15 Page 8 of 8 PageID #: 8Case 2:15-cv-07040-JFB-GRB Document 29-2 il 01/31/ 7 9 f 14 PageID #: 263 Case 2:15-cv-07040-JFB-GRB Document 1-1 Filed 12/10/15 Page 1 of 1 PageID #: 9Case 2:15-cv 07040-JFB-GRB Document 29-2 Filed 01/31/17 Page 10 of 14 PageID #: 264 Fair Debt Collection Practices Act Violation JS 44 (Rev. 1/2013) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS (b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) (c) Attorneys (Firm Name, Address, and Telephone Number) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (If Known) II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) O 1 U.S. Government  3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State  1 O 1 Incorporated or Principal Place of Business In This State O 4 O 4 O 2 U.S. Government Defendant O 4 Diversity (Indicate Citizenship of Parties in Item III) Citizen of Another State O 2 O 2 Incorporated and Principal Place of Business In Another State O 5 O 5 Citizen or Subject of a O 3 O 3 Foreign Nation O 6 O 6 Foreign Country IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES O 110 Insurance O 120 Marine O 130 Miller Act O 140 Negotiable Instrument O 150 Recovery of Overpayment & Enforcement of Judgment O 151 Medicare Act O 152 Recovery of Defaulted Student Loans (Excludes Veterans) O 153 Recovery of Overpayment of Veteran's Benefits O 160 Stockholders' Suits O 190 Other Contract O 195 Contract Product Liability O 196 Franchise PERSONAL INJURY PERSONAL INJURY O 310 Airplane O 365 Personal Injury - O 315 Airplane Product Product Liability Liability O 367 Health Care/ O 320 Assault, Libel & Pharmaceutical Slander Personal Injury O 330 Federal Employers' Product Liability Liability O 368 Asbestos Personal O 340 Marine Injury Product O 345 Marine Product Liability Liability PERSONAL PROPERTY O 350 Motor Vehicle O 370 Other Fraud O 355 Motor Vehicle O 371 Truth in Lending Product Liability O 380 Other Personal O 360 Other Personal Property Damage Injury O 385 Property Damage O 362 Personal Injury - Product Liability Medical Malpractice O 625 Drug Related Seizure of Property 21 USC 881 O 690 Other O 422 Appeal 28 USC 158 O 423 Withdrawal 28 USC 157 O 375 False Claims Act O 400 State Reapportionment O 410 Antitrust O 430 Banks and Banking O 450 Commerce O 460 Deportation O 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit O 490 Cable/Sat TV O 850 Securities/Commodities/ Exchange O 890 Other Statutory Actions O 891 Agricultural Acts O 893 Environmental Matters O 895 Freedom of Information Act O 896 Arbitration O 899 Administrative Procedure Act/Review or Appeal of Agency Decision O 950 Constitutionality of State Statutes PROPERTY RIGHTS O 820 Copyrights O 830 Patent O 840 Trademark LABOR SOCIAL SECURITY O 710 Fair Labor Standards Act O 720 Labor/Management Relations O 740 Railway Labor Act O 751 Family and Medical Leave Act O 790 Other Labor Litigation O 791 Employee Retirement Income Security Act O 861 HIA (1395ff) O 862 Black Lung (923) O 863 DIWC/DIWW (405(g)) O 864 SSID Title XVI O 865 RSI (405(g)) REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITS O 210 Land Condemnation O 220 Foreclosure O 230 Rent Lease & Ejectment O 240 Torts to Land O 245 Tort Product Liability O 290 All Other Real Property O 440 Other Civil Rights O 441 Voting O 442 Employment O 443 Housing/ Accommodations O 445 Amer. w/Disabilities - Employment O 446 Amer. w/Disabilities - Other O 448 Education Habeas Corpus: O 463 Alien Detainee O 510 Motions to Vacate Sentence O 530 General O 535 Death Penalty Other: O 540 Mandamus & Other O 550 Civil Rights O 555 Prison Condition O 560 Civil Detainee Conditions of Confinement O 870 Taxes (U.S. Plaintiff or Defendant) O 871 IRS-Third Party 26 USC 7609 IMMIGRATION O 462 Naturalization Application O 465 Other Immigration Actions V. ORIGIN (Place an “X” in One Box Only)  1 Original Proceeding O 2 Removed from State Court O 3 Remanded from Appellate Court O 4 Reinstated or Reopened O 5 Transferred from Another District (specify) O 6 Multidistrict Litigation VII. REQUESTED IN COMPLAINT: O CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P. DEMAND $1000.00 CHECK YES only if demanded in complaint: JURY DEMAND:  Yes O No Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 15 USC §1692 VI. CAUSE OF ACTION Brief description of cause: VIII. RELATED CASE(S) IF ANY JUDGE DOCKET NUMBER DATE SIGNATURE OF ATTORNEY OF RECORD FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE JEREMY IMPELLIZZERI I.C. SYSTEM, INC. BARSHAY SANDERS, PLLC 100 Garden City Plaza, Ste 500, Garden City, NY 11530 (516) 203-7600 SUFFOLK (See Instructions) RAMSEY December 10, 2015 /s Craig B. Sanders Case 2:15-cv-07040-JFB-GRB Document 1-2 Filed 12/10/15 Page 1 of 2 PageID #: 10Case 2:15-cv-07 4 -JFB-GRB Document 29-2 Filed 0 /3 /17 Page 1 14 PageID #: 265 CERTIFICATION OF ARBITRATION ELIGIBILITY Local Arbitration Rule 83.10 provides that with certain exceptions, actions seeking money damages only in an amount not in excess of $150,000, exclusive of interest and costs, are eligible for compulsory arbitration. The amount of damages is presumed to be below the threshold amount unless a certification to the contrary is filed. I, Craig B. Sanders, counsel for Plaintiff , do hereby certify that the above captioned civil action is ineligible for compulsory arbitration for the following reason(s):  monetary damages sought are in excess of $150,000, exclusive of interest and costs,  the complaint seeks injunctive relief,  the matter is otherwise ineligible for the following reason DISCLOSURE STATEMENT - FEDERAL RULES CIVIL PROCEDURE 7.1 Identify any parent corporation and any publicly held corporation that owns 10% or more or its stocks: RELATED CASE STATEMENT (Section VIII on the Front of this Form) Please list all cases that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this form. Rule 50.3.1 (a) provides that “A civil case is “related” to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues or because the cases arise from the same transactions or events, a substantial saving of judicial resources is likely to result from assigning both cases to the same judge and magistrate judge.” Rule 50.3.1 (b) provides that “ A civil case shall not be deemed “related” to another civil case merely because the civil case: (A) involves identical legal issues, or (B) involves the same parties.” Rule 50.3.1 (c) further provides that “Presumptively, and subject to the power of a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be “related” unless both cases are still pending before the court.” NY-E DIVISION OF BUSINESS RULE 50.1(d)(2) 1. Is the civil action being filed in the Eastern District removed from a New York State Court located in Nassau or Suffolk County: NO 2. If you answered “no” above: a) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in Nassau or Suffolk County? YES b) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in the Eastern District? YES If your answer to question 2 (b) is “No,” does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau or Suffolk County, or, in an interpleader action, does the claimant (or a majority of the claimants, if there is more than one) reside in Nassau or Suffolk County? _____________________ (Note: A corporation shall be considered a resident of the County in which it has the most significant contacts). BAR ADMISSION I am currently admitted in the Eastern District of New York and currently a member in good standing of the bar of this court.  Yes  No Are you currently the subject of any disciplinary action (s) in this or any other state or federal court?  Yes (If yes, please explain)  No I certify the accuracy of all information provided above. Signature: /s Craig B. Sanders Case 2:15-cv-07040-JFB-GRB Document 1-2 Filed 12/10/15 Page 2 of 2 PageID #: 11Case 2:15-cv-07 4 -JFB-GRB Document 29-2 Filed 0 /3 /17 Page 1 14 PageID #: 266 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the EASTERN DISTRICT OF NEW YORK Jeremy Impellizzeri ) ) ) ) ) ) ) ) ) Civil Action No. Plaintiff(s) v. I.C. System, Inc. Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) I.C. System, Inc. 444 Highway 96 East , PO Box 64378 SAINT PAUL, Minnesota 55164 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if you are the United States, or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney, whose name and address are: BARSHAY SANDERS PLLC 100 GARDEN CITY PLAZA, SUITE 500 GARDEN CITY, NY 11530 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. Date: ______________________ CLERK OF COURT ________________________________________ Signature of Clerk or Deputy Clerk Case 2:15-cv-07040-JFB-GRB Document 1-3 Filed 12/10/15 Page 1 of 2 PageID #: 12Case 2:15-cv-07 4 -JFB-GRB Document 29-2 Filed 0 /3 /17 Page 13 14 PageID #: 67 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This Summons for (name of individual and title, if any) _____________________________________ was received by me on (date) ____________________ . [ ] I personally served the summons on the individual at (place) __________________________ ___________________________________________________ on (date) _______________; or [ ] I left the summons at the individual's residence or usual place of abode with (name) _______ __________________________, a person of suitable age and discretion who resides there, on (date) ________________, and mailed a copy to the individual's last known address; or [ ] I served the summons on (name of individual) ______________________________ , who is designated by law to accept service of process on behalf of (name of organization) ______________ _____________________________________ on (date) ________________ ; or [ ] I returned the summons unexecuted because ________________________________ ; or [ ] Other (specify): My fees are $ ___________ for travel and $ ___________ for services, for a total of $ __0.00__ . I declare under penalty of perjury that this information is true. Date: ________________ Server's signature Printed name and title Server's address Additional information regarding attempted service, etc: Case 2:15-cv-07040-JFB-GRB Document 1-3 Filed 12/10/15 Page 2 of 2 PageID #: 13Case 2:15-cv-07 4 -JFB-GRB Document 29-2 Filed 0 /3 /17 Page 14 14 PageID #: 268 Exhibit B Case 2:15-cv-07040-JFB-GRB Document 29-3 Filed 01/31/17 Page 1 of 12 PageID #: 269 131253912v1 0981430 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JEREMY IMPELLIZZERI, Plaintiff, - against - I.C. SYSTEMS, INC., Defendant. Docket No:15-cv-07040-JFB-GRB ANSWER Defendant I.C. SYSTEM, INC. (“ICS” or “Defendant”) by and through its attorneys, HINSHAW & CULBERTSON LLP, for its answer to Plaintiff’s Complaint and Demand For Jury Trial (the “Complaint”), herein states as follows: IN RESPONSE TO THE ALLEGATIONS UNDER THE HEADING “INTRODUCTION” 1. Defendant denies the allegations contained in paragraph 1 of the Complaint, except admits that Plaintiffs purport to proceed as stated therein. IN RESPONSE TO THE ALLEGATIONS UNDER THE HEADING “JURISDICTION AND VENUE” 2. The allegations contained in paragraph 2 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 3. The allegations contained in paragraph 3 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 4. Defendant denies the allegations contained in paragraph 4 of the Complaint, except admits that it conducts business in New York. Case 2:15-cv-07040-JFB-GRB Document 8 Filed 01/07/16 Page 1 of 11 PageID #: 24Case 2:15-cv-07 4 -JFB-GRB Document 29-3 Filed 01/31/17 Page 2 of 2 PageID #: 270 131253912v1 0981430 IN RESPONSE TO THE ALLEGATIONS UNDER THE HEADING “PARTIES” 5. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 5 of the Complaint, except admits that Plaintiff is an individual. 6. The allegations contained in paragraph 6 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 7. Admits the allegations contained in paragraph 7 of the Complaint. 8. Defendant denies the allegations contained in paragraph 8 of the Complaint, except admits that in certain circumstances, it collects debt. 9. The allegations contained in paragraph 9 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. IN RESPONSE TO THE ALLEGATIONS UNDER THE HEADING “ALLEGATIONS” 10. The allegations contained in paragraph 10 of the Complaint purport to state conclusions of law which do not require a response, except Defendant states that it lacks knowledge or information sufficient to form a belief as to the truth of the allegations referring to how Plaintiff incurred the debt. 11. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 11 of the Complaint. Case 2:15-cv-07040-JFB-GRB Document 8 Filed 01/07/16 Page 2 of 11 PageID #: 25Case 2:15-cv-07 4 -JFB-GRB Document 29-3 Filed 01/31/17 Page 3 of 2 PageID #: 271 131253912v1 0981430 12. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 12 of the Complaint, except admits that Plaintiff’s debt was assigned to Defendant. 13. Defendant denies the allegations contained in paragraph 13 of the Complaint, except respectfully refers the Court to the referenced Exhibit 1 for its complete content and legal import, if any. 14. The allegations contained in paragraph 14 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 15. Defendant denies the allegations contained in paragraph 15 of the Complaint. IN RESPONSE TO THE ALLEGATIONS CONTAINED UNDER THE HEADING FIRST COUNT - VIOLATION OF 15 U.S.C §1692G - VALIDATION OF DEBTS” 16. Defendant repeats, reiterates and incorporates all its answers, contained in Paragraphs 1 through 15 above in response to Paragraph 16 of the Complaint as though fully set forth herein. 17. The allegations contained in paragraph 17 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 18. The allegations contained in paragraph 18 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 19. The allegations contained in paragraph 19 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. Case 2:15-cv-07040-JFB-GRB Document 8 Filed 01/07/16 Page 3 of 11 PageID #: 26Case 2:15-cv-07 4 -JFB-GRB Document 29-3 Filed 01/31/17 Page 4 of 2 PageID #: 272 131253912v1 0981430 20. The allegations contained in paragraph 20 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 21. The allegations contained in paragraph 21 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 22. The allegations contained in paragraph 22 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 23. The allegations contained in paragraph 23 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 24. Denies the allegations contained in paragraph 24 of the Complaint and respectfully refers the Court to the referenced letter for its complete content and legal import, if any. 25. Denies the allegations contained in paragraph 25 of the Complaint and respectfully refers the Court to the referenced letter for its complete content and legal import, if any. 26. Denies the allegations contained in paragraph 26 of the Complaint and respectfully refers the Court to the referenced letter for its complete content and legal import, if any. Case 2:15-cv-07040-JFB-GRB Document 8 Filed 01/07/16 Page 4 of 11 PageID #: 27Case 2:15-cv-07 4 -JFB-GRB Document 29-3 Filed 01/31/17 Page 5 of 2 PageID #: 273 131253912v1 0981430 27. Denies the allegations contained in paragraph 27 of the Complaint and respectfully refers the Court to the referenced letter for its complete content and legal import, if any. 28. Denies the allegations contained in paragraph 28 of the Complaint and respectfully refers the Court to the referenced letter for its complete content and legal import, if any. 29. Denies the allegations contained in paragraph 29 of the Complaint. 30. Denies the allegations contained in paragraph 30 of the Complaint. 31. Denies the allegations contained in paragraph 31 of the Complaint. 32. Denies the allegations contained in paragraph 32 of the Complaint. 33. Denies the allegations contained in paragraph 33 of the Complaint. 34. Denies the allegations contained in paragraph 34 of the Complaint. 35. Denies the allegations contained in paragraph 35 of the Complaint. IN RESPONSE TO THE ALLEGATIONS CONTAINED UNDER THE HEADING SECOND COUNT - VIOLATION OF 15 U.S.C §1692E - FALSE OR MISLEADING REPRESENTATIONS AS TO THE NAME OF THE CREDITOR TO WHOM THE DEBT IS OWED” 36. Defendant repeats, reiterates and incorporates all its answers, contained in Paragraphs 1 through 35 above in response to Paragraph 36 of the Complaint as though fully set forth herein. 37. The allegations contained in paragraph 37 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. Case 2:15-cv-07040-JFB-GRB Document 8 Filed 01/07/16 Page 5 of 11 PageID #: 28Case 2:15-cv-07 4 -JFB-GRB Document 29-3 Filed 01/31/17 Page 6 of 2 PageID #: 274 131253912v1 0981430 38. The allegations contained in paragraph 38 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 39. The allegations contained in paragraph 39 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 40. The allegations contained in paragraph 40 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 41. The allegations contained in paragraph 41 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 42. Denies the allegations contained in paragraph 42 of the Complaint. 43. Denies the allegations contained in paragraph 43 of the Complaint. 44. Denies the allegations contained in paragraph 44 of the Complaint. 45. Denies the allegations contained in paragraph 45 of the Complaint. IN RESPONSE TO THE ALLEGATIONS CONTAINED UNDER THE HEADING THIRD COUNT - VIOLATION OF 15 U.S.C §1692G - VALIDATION OF DEBTS” 46. Defendant repeats, reiterates and incorporates all its answers, contained in Paragraphs 1 through 45 above in response to Paragraph 46 of the Complaint as though fully set forth herein. 47. The allegations contained in paragraph 47 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. Case 2:15-cv-07040-JFB-GRB Document 8 Filed 01/07/16 Page 6 of 11 PageID #: 29Case 2:15-cv-07 4 -JFB-GRB Document 29-3 Filed 01/31/17 Page 7 of 2 PageID #: 275 131253912v1 0981430 48. The allegations contained in paragraph 48 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 49. The allegations contained in paragraph 49 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 50. The allegations contained in paragraph 50 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 51. The allegations contained in paragraph 51 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 52. The allegations contained in paragraph 52 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 53. The allegations contained in paragraph 53 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 54. The allegations contained in paragraph 54 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. Case 2:15-cv-07040-JFB-GRB Document 8 Filed 01/07/16 Page 7 of 11 PageID #: 30Case 2:15-cv-07 4 -JFB-GRB Document 29-3 Filed 01/31/17 Page 8 of 2 PageID #: 276 131253912v1 0981430 55. The allegations contained in paragraph 55 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 56. The allegations contained in paragraph 56 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 57. Denies the allegations contained in paragraph 57 of the Complaint and respectfully refers the Court to the referenced letter for its complete content and legal import, if any. 58. Denies the allegations contained in paragraph 58 of the Complaint. 59. Denies the allegations contained in paragraph 59 of the Complaint. 60. Denies the allegations contained in paragraph 60 of the Complaint. 61. Denies the allegations contained in paragraph 61 of the Complaint. 62. Denies the allegations contained in paragraph 62 of the Complaint. 63. Denies the allegations contained in paragraph 63 of the Complaint. IN RESPONSE TO THE ALLEGATIONS CONTAINED UNDER THE HEADING FOURTH COUNT - VIOLATION OF 15 U.S.C §1692F - UNLAWFUL FEE” 64. Defendant repeats, reiterates and incorporates all its answers, contained in Paragraphs 1 through 63 above in response to Paragraph 64 of the Complaint as though fully set forth herein. 65. The allegations contained in paragraph 65 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. Case 2:15-cv-07040-JFB-GRB Document 8 Filed 01/07/16 Page 8 of 11 PageID #: 31Case 2:15-cv-07 4 -JFB-GRB Document 29-3 Filed 01/31/17 Page 9 of 2 PageID #: 277 131253912v1 0981430 66. The allegations contained in paragraph 66 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 67. Admits the allegations contained in Paragraph 67 of the Complaint. 68. Admits the allegations contained in Paragraph 68 of the Complaint. 69. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 69 of the Complaint. 70. Denies the allegations contained in Paragraph 70 of the Complaint. 71. Denies the allegations contained in Paragraph 71 of the Complaint. 72. Denies the allegations contained in Paragraph 72 of the Complaint. IN RESPONSE TO THE ALLEGATIONS CONTAINED UNDER THE HEADING FIFTH COUNT - VIOLATION OF 15 U.S.C §1692E - FALSE REPRESENTATION AS TO UNLAWFUL FEE” 73. Defendant repeats, reiterates and incorporates all its answers, contained in Paragraphs 1 through 72 above in response to Paragraph 73 of the Complaint as though fully set forth herein. 74. The allegations contained in paragraph 74 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 75. The allegations contained in paragraph 75 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 76. The allegations contained in paragraph 76 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. Case 2:15-cv-07040-JFB-GRB Document 8 Filed 01/07/16 Page 9 of 11 PageID #: 32Case 2:15-cv 07 4 -JFB-GRB Document 29-3 il /31/ 7 10 of 2 PageID #: 78 131253912v1 0981430 77. Denies the allegations contained in Paragraph 77 of the Complaint. 78. Denies the allegations contained in Paragraph 78 of the Complaint. 79. Denies the allegations set forth in Paragraph 79 of the Complaint. 80. Denies the allegations contained in Paragraph 80 of the Complaint. IN RESPONSE TO THE ALLEGATIONS CONTAINED UNDER THE HEADING “JURY DEMAND” 81. The allegations contained in paragraph 81 of the Complaint are precatory in nature and do not require a response. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiff’s claims are barred in whole or in part because they fail to state claims upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE Any violation of the Fair Debt Collection Practices Act (“FDCPA”), which Defendant denies occurred, was not intentional and would have resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid such error. THIRD AFFIRMATIVE DEFENSE Plaintiff lacks standing to assert the claims in this lawsuit as either of them did not suffer any injury-in-fact as is required by Article III of the U.S. Constitution. FOURTH AFFIRMATIVE DEFENSE Upon information and belief, arbitration may be the appropriate venue for Plaintiff’s claims, as ICS may possess certain arbitration rights based on contracts entered into by Plaintiff, and this matter may be precluded from proceeding within this court. Case 2:15-cv-07040-JFB-GRB Document 8 Filed 01/07/16 Page 10 of 11 PageID #: 33Case 2:15-cv-07 4 -JFB-GRB Document 29-3 Filed 01/31/17 Page 11 of 2 PageID #: 279 131253912v1 0981430 FIFTH AFFIRMATIVE DEFENSE Defendant reserves the right to assert additional, separate and alternative affirmative defenses as discovery warrants. WHEREFORE, Defendant I.C. SYSTEM, INC. respectfully requests that the Court enter an order and judgment of this Court in its favor and against Plaintiffs as follows: 1. Dismissing all causes of action against Defendant with prejudice and on the merits; 2. Applicable costs and fees pursuant to 15 U.S.C. §1692k; and 3. Awarding Defendant such other and further relief as the Court deems just and equitable. Dated: New York, New York January 7, 2016 Respectfully submitted, HINSHAW & CULBERTSON LLP Attorneys for Defendant I.C. System, Inc. By: s/Concepcion A. Montoya Concepcion A. Montoya (CM-7147) 800 Third Avenue, 13th Floor New York, New York 10022 Tel: (212) 471-6200 TO: Craig B. Sanders BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Attorneys for Plaintiff Garden City, New York 11530 Tel: (516) 203-7600 Fax: (516) 706-5055 Email: csanders@sanderslawpllc.com Case 2:15-cv-07040-JFB-GRB Document 8 Filed 01/07/16 Page 11 of 11 PageID #: 34Case 2:15-cv-07 4 -JFB-GRB Document 29-3 Filed 01/31/17 Page 2 of 2 PageID #: 280 Exhibit C Case 2:15-cv-07040-JFB-GRB Document 29-4 Filed 01/31/17 Page 1 of 12 PageID #: 281 131282384v1 0981430 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JEREMY IMPELLIZZERI, Plaintiff, - against - I.C. SYSTEMS, INC., Defendant. Docket No:15-cv-07040-JFB-GRB AMENDED ANSWER Defendant I.C. SYSTEM, INC. (“ICS” or “Defendant”) by and through its attorneys, HINSHAW & CULBERTSON LLP, for its answer to Plaintiff’s Complaint and Demand For Jury Trial (the “Complaint”), herein states as follows: IN RESPONSE TO THE ALLEGATIONS UNDER THE HEADING “INTRODUCTION” 1. Defendant denies the allegations contained in paragraph 1 of the Complaint, except admits that Plaintiffs purport to proceed as stated therein. IN RESPONSE TO THE ALLEGATIONS UNDER THE HEADING “JURISDICTION AND VENUE” 2. The allegations contained in paragraph 2 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 3. The allegations contained in paragraph 3 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 4. Defendant denies the allegations contained in paragraph 4 of the Complaint, except admits that it conducts business in New York. Case 2:15-cv-07040-JFB-GRB Document 12 Filed 02/08/16 Page 1 of 11 PageID #: 52Case 2:15-cv-07040-JFB-GRB Document 29-4 il 1/31/ 7 2 f 2 I : 282 131282384v1 0981430 IN RESPONSE TO THE ALLEGATIONS UNDER THE HEADING “PARTIES” 5. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 5 of the Complaint, except admits that Plaintiff is an individual. 6. The allegations contained in paragraph 6 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 7. Admits the allegations contained in paragraph 7 of the Complaint. 8. Defendant denies the allegations contained in paragraph 8 of the Complaint, except admits that in certain circumstances, it collects debt. 9. The allegations contained in paragraph 9 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. IN RESPONSE TO THE ALLEGATIONS UNDER THE HEADING “ALLEGATIONS” 10. The allegations contained in paragraph 10 of the Complaint purport to state conclusions of law which do not require a response, except Defendant states that it lacks knowledge or information sufficient to form a belief as to the truth of the allegations referring to how Plaintiff incurred the debt. 11. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 11 of the Complaint. Case 2:15-cv-07040-JFB-GRB Document 12 Filed 02/08/16 Page 2 of 11 PageID #: 53Case 2:15-cv-07040-JFB-GRB Document 29-4 il 1/31/ 7 3 f 2 I : 283 131282384v1 0981430 12. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 12 of the Complaint, except admits that Plaintiff’s debt was assigned to Defendant. 13. Defendant denies the allegations contained in paragraph 13 of the Complaint, except respectfully refers the Court to the referenced Exhibit 1 for its complete content and legal import, if any. 14. The allegations contained in paragraph 14 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 15. Defendant denies the allegations contained in paragraph 15 of the Complaint. IN RESPONSE TO THE ALLEGATIONS CONTAINED UNDER THE HEADING FIRST COUNT - VIOLATION OF 15 U.S.C §1692G - VALIDATION OF DEBTS” 16. Defendant repeats, reiterates and incorporates all its answers, contained in Paragraphs 1 through 15 above in response to Paragraph 16 of the Complaint as though fully set forth herein. 17. The allegations contained in paragraph 17 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 18. The allegations contained in paragraph 18 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 19. The allegations contained in paragraph 19 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. Case 2:15-cv-07040-JFB-GRB Document 12 Filed 02/08/16 Page 3 of 11 PageID #: 54Case 2:15-cv-07040-JFB-GRB Document 29-4 il 1/31/ 7 4 f 2 I : 284 131282384v1 0981430 20. The allegations contained in paragraph 20 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 21. The allegations contained in paragraph 21 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 22. The allegations contained in paragraph 22 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 23. The allegations contained in paragraph 23 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 24. Denies the allegations contained in paragraph 24 of the Complaint and respectfully refers the Court to the referenced letter for its complete content and legal import, if any. 25. Denies the allegations contained in paragraph 25 of the Complaint and respectfully refers the Court to the referenced letter for its complete content and legal import, if any. 26. Denies the allegations contained in paragraph 26 of the Complaint and respectfully refers the Court to the referenced letter for its complete content and legal import, if any. Case 2:15-cv-07040-JFB-GRB Document 12 Filed 02/08/16 Page 4 of 11 PageID #: 55Case 2:15-cv-07040-JFB-GRB Document 29-4 il 1/31/ 7 5 f 2 I : 285 131282384v1 0981430 27. Denies the allegations contained in paragraph 27 of the Complaint and respectfully refers the Court to the referenced letter for its complete content and legal import, if any. 28. Denies the allegations contained in paragraph 28 of the Complaint and respectfully refers the Court to the referenced letter for its complete content and legal import, if any. 29. Denies the allegations contained in paragraph 29 of the Complaint. 30. Denies the allegations contained in paragraph 30 of the Complaint. 31. Denies the allegations contained in paragraph 31 of the Complaint. 32. Denies the allegations contained in paragraph 32 of the Complaint. 33. Denies the allegations contained in paragraph 33 of the Complaint. 34. Denies the allegations contained in paragraph 34 of the Complaint. 35. Denies the allegations contained in paragraph 35 of the Complaint. IN RESPONSE TO THE ALLEGATIONS CONTAINED UNDER THE HEADING SECOND COUNT - VIOLATION OF 15 U.S.C §1692E - FALSE OR MISLEADING REPRESENTATIONS AS TO THE NAME OF THE CREDITOR TO WHOM THE DEBT IS OWED” 36. Defendant repeats, reiterates and incorporates all its answers, contained in Paragraphs 1 through 35 above in response to Paragraph 36 of the Complaint as though fully set forth herein. 37. The allegations contained in paragraph 37 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. Case 2:15-cv-07040-JFB-GRB Document 12 Filed 02/08/16 Page 5 of 11 PageID #: 56Case 2:15-cv-07040-JFB-GRB Document 29-4 il 1/31/ 7 6 f 2 I : 286 131282384v1 0981430 38. The allegations contained in paragraph 38 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 39. The allegations contained in paragraph 39 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 40. The allegations contained in paragraph 40 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 41. The allegations contained in paragraph 41 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 42. Denies the allegations contained in paragraph 42 of the Complaint. 43. Denies the allegations contained in paragraph 43 of the Complaint. 44. Denies the allegations contained in paragraph 44 of the Complaint. 45. Denies the allegations contained in paragraph 45 of the Complaint. IN RESPONSE TO THE ALLEGATIONS CONTAINED UNDER THE HEADING THIRD COUNT - VIOLATION OF 15 U.S.C §1692G - VALIDATION OF DEBTS” 46. Defendant repeats, reiterates and incorporates all its answers, contained in Paragraphs 1 through 45 above in response to Paragraph 46 of the Complaint as though fully set forth herein. 47. The allegations contained in paragraph 47 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. Case 2:15-cv-07040-JFB-GRB Document 12 Filed 02/08/16 Page 6 of 11 PageID #: 57Case 2:15-cv-07040-JFB-GRB Document 29-4 il 1/31/ 7 7 f 2 I : 287 131282384v1 0981430 48. The allegations contained in paragraph 48 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 49. The allegations contained in paragraph 49 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 50. The allegations contained in paragraph 50 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 51. The allegations contained in paragraph 51 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 52. The allegations contained in paragraph 52 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 53. The allegations contained in paragraph 53 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 54. The allegations contained in paragraph 54 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. Case 2:15-cv-07040-JFB-GRB Document 12 Filed 02/08/16 Page 7 of 11 PageID #: 58Case 2:15-cv-07040-JFB-GRB Document 29-4 il 1/31/ 7 8 f 2 I : 2 8 131282384v1 0981430 55. The allegations contained in paragraph 55 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 56. The allegations contained in paragraph 56 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 57. Denies the allegations contained in paragraph 57 of the Complaint and respectfully refers the Court to the referenced letter for its complete content and legal import, if any. 58. Denies the allegations contained in paragraph 58 of the Complaint. 59. Denies the allegations contained in paragraph 59 of the Complaint. 60. Denies the allegations contained in paragraph 60 of the Complaint. 61. Denies the allegations contained in paragraph 61 of the Complaint. 62. Denies the allegations contained in paragraph 62 of the Complaint. 63. Denies the allegations contained in paragraph 63 of the Complaint. IN RESPONSE TO THE ALLEGATIONS CONTAINED UNDER THE HEADING FOURTH COUNT - VIOLATION OF 15 U.S.C §1692F - UNLAWFUL FEE” 64. Defendant repeats, reiterates and incorporates all its answers, contained in Paragraphs 1 through 63 above in response to Paragraph 64 of the Complaint as though fully set forth herein. 65. The allegations contained in paragraph 65 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. Case 2:15-cv-07040-JFB-GRB Document 12 Filed 02/08/16 Page 8 of 11 PageID #: 59Case 2:15-cv-07040-JFB-GRB Document 29-4 il 1/31/ 7 9 f 2 I : 289 131282384v1 0981430 66. The allegations contained in paragraph 66 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 67. Admits the allegations contained in Paragraph 67 of the Complaint. 68. Admits the allegations contained in Paragraph 68 of the Complaint. 69. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 69 of the Complaint. 70. Denies the allegations contained in Paragraph 70 of the Complaint. 71. Denies the allegations contained in Paragraph 71 of the Complaint. 72. Denies the allegations contained in Paragraph 72 of the Complaint. IN RESPONSE TO THE ALLEGATIONS CONTAINED UNDER THE HEADING FIFTH COUNT - VIOLATION OF 15 U.S.C §1692E - FALSE REPRESENTATION AS TO UNLAWFUL FEE” 73. Defendant repeats, reiterates and incorporates all its answers, contained in Paragraphs 1 through 72 above in response to Paragraph 73 of the Complaint as though fully set forth herein. 74. The allegations contained in paragraph 74 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 75. The allegations contained in paragraph 75 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. 76. The allegations contained in paragraph 76 of the Complaint purport to state conclusions of law which do not require a response. To the extent these allegations infer the existence of facts supporting a claim for relief against Defendant, they are denied. Case 2:15-cv-07040-JFB-GRB Document 12 Filed 02/08/16 Page 9 of 11 PageID #: 60Case 2:15-cv-07 4 -JFB-GRB Document 29-4 il 1/31/ 7 10 of 2 PageID #: 290 131282384v1 0981430 77. Denies the allegations contained in Paragraph 77 of the Complaint. 78. Denies the allegations contained in Paragraph 78 of the Complaint. 79. Denies the allegations set forth in Paragraph 79 of the Complaint. 80. Denies the allegations contained in Paragraph 80 of the Complaint. IN RESPONSE TO THE ALLEGATIONS CONTAINED UNDER THE HEADING “JURY DEMAND” 81. The allegations contained in paragraph 81 of the Complaint are precatory in nature and do not require a response. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiff’s claims are barred in whole or in part because they fail to state claims upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE Plaintiff lacks standing to assert the claims in this lawsuit as either of them did not suffer any injury-in-fact as is required by Article III of the U.S. Constitution. THIRD AFFIRMATIVE DEFENSE Upon information and belief, arbitration may be the appropriate venue for Plaintiff’s claims, as ICS may possess certain arbitration rights based on contracts entered into by Plaintiff, and this matter may be precluded from proceeding within this court. Case 2:15-cv-07040-JFB-GRB Document 12 Filed 02/08/16 Page 10 of 11 PageID #: 61Case 2:15-cv-07040-JFB-GRB Document 29-4 il 1/31/ 7 1 f 2 I : 291 131282384v1 0981430 FOURTH AFFIRMATIVE DEFENSE Defendant reserves the right to assert additional, separate and alternative affirmative defenses as discovery warrants. WHEREFORE, Defendant I.C. SYSTEM, INC. respectfully requests that the Court enter an order and judgment of this Court in its favor and against Plaintiffs as follows: 1. Dismissing all causes of action against Defendant with prejudice and on the merits; 2. Applicable costs and fees pursuant to 15 U.S.C. §1692k; and 3. Awarding Defendant such other and further relief as the Court deems just and equitable. Dated: New York, New York February 8, 2016 Respectfully submitted, HINSHAW & CULBERTSON LLP Attorneys for Defendant I.C. System, Inc. By: s/Concepcion A. Montoya Concepcion A. Montoya (CM-7147) 800 Third Avenue, 13th Floor New York, New York 10022 Tel: (212) 471-6200 TO: Craig B. Sanders BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Attorneys for Plaintiff Garden City, New York 11530 Tel: (516) 203-7600 Fax: (516) 706-5055 Email: csanders@sanderslawpllc.com Case 2:15-cv-07040-JFB-GRB Document 12 Filed 02/08/16 Page 11 of 11 PageID #: 62Case 2:15-cv-07040-JFB-GRB Document 29-4 il 1/31/ 7 2 f 2 I : 292 Case 2:15-cv-07040-JFB-GRB Document 29-5 Filed 01/31/17 Page 1 of 3 PageID #: 293 Case 2:15-cv-07040-JFB-GRB Document 29-5 Filed 01/31/17 Page 2 of 3 PageID #: 294 Case 2:15-cv-07040-JFB-GRB Document 29-5 Filed 01/31/17 Page 3 of 3 PageID #: 295 Case 2:15-cv-07040-JFB-GRB Document 29-6 Filed 01/31/17 Page 1 of 3 PageID #: 296 Case 2:15-cv-07040-JFB-GRB Document 29-6 Filed 01/31/17 Page 2 of 3 PageID #: 297 Case 2:15-cv-07040-JFB-GRB Document 29-6 Filed 01/31/17 Page 3 of 3 PageID #: 298 131616144v1 0981430 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JEREMY IMPELLIZZERI, Plaintiff, - against - I.C. SYSTEM, INC., Defendant. Docket No: 15-cv-07040-JFB-GRB LOCAL RULE 56.1 STATEMENT OF MATERIAL FACTS Defendant I.C. System, Inc. (“ICS” or “Defendant”) respectfully submits its Statement Of Material Facts, pursuant to Local Rule 56.1, in support of its motion for summary judgment, as follows: 1. Plaintiff’s account with the original creditor, PSEG - Long Island, was assigned to ICS for collection on May 26, 2015. (See Affidavit of Michael Selbitschka, dated January 31, 2017 (“Selbitschka Aff.”), ¶ 3). 2. ICS sent a letter dated June 2, 2015 to Plaintiff seeking to collect on the account (the “Letter”). (See Selbitschka Aff., ¶4; Ex. A). 3. The top left-hand side of the Letter states that: Your delinquent account has been turned over to this collection agency. You are hereby notified that I.C. System will forward the account information to the national credit reporting agencies in your creditors name if you fail to fulfill the terms of your credit obligations. Of course, you will have the right then, as you do now, to inspect your credit file in accordance with federal law. I.C. System will not submit the account information to the national credit reporting agencies until expiration of the time period described in the notice below. (Selbitschka Aff., Ex. A). (emphasis added). Case 2:15-cv-07040-JFB-GRB Document 29-7 Filed 01/31/17 Page 1 of 4 PageID #: 299 2 131616144v1 0981430 4. Immediately to the right of the above statements, the Letter contains a box entitled “Account Summary”: Account Summary T Mobile USA Inc Account No: XXXXXX004 I.C. System Reference No: XXXXXXX2-1-49 Principal Due: $1,145.30 BALANCE DUE: $1,145.30 $.00 has been Paid Since Placement Id. (bold in original). 5. In the center of the Letter is a validation notice: NOTICE Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request of this office in writing within 30 days after receiving this notice this office will provide you with the name and address of the original creditor, if different from the current creditor. Id. 6. Plaintiff never notified ICS that he disputed the validity of the debt at issue, or any portion thereof. (See Selbitschka Aff., ¶5). 7. Defendant’s records indicate that Plaintiff did not communicate with IC System via www.icsystem.com or www.yourpayment.com. (See Selbitschka Aff., ¶6). 8. Plaintiff has not paid any portion of the debt by making an online payment or through any other method. (See Selbitschka Aff., ¶7). Case 2:15-cv-07040-JFB-GRB Document 29-7 Filed 01/31/17 Page 2 of 4 PageID #: 300 3 131616144v1 0981430 9. Plaintiff has not paid any processing fee by making an online payment. (See Selbitschka Aff., ¶8). 10. Online payments are made through the website www.yourpayment.com (See Selbitschka Aff., ¶9). 11. Any consumer who chose to make a payment online was charged a processing fee by ICS’s third party payment vendor, Pay N Seconds. ICS did not, and does not, charge consumers a processing fee for online payments. (See Selbitschka Aff., ¶10). 12. ICS’s vendor, Pay N Seconds, approves and collects any processing fee. (See Selbitschka Aff., ¶11). 13. ICS did not, and does not, keep any portion of a processing fee, if any, pay by consumers online. (See Selbitschka Aff., ¶12). 14. ICS did not, and does not, charge a fee to any consumer for making an online payment on any account. (See Selbitschka Aff., ¶13). 15. As indicated on the Letter, ICS provides consumers with several additional options to make a payment on an account. A consumer may make a payment over the telephone without a fee. A consumer may also mail a payment without a fee to ICS, with or without using Case 2:15-cv-07040-JFB-GRB Document 29-7 Filed 01/31/17 Page 3 of 4 PageID #: 301 4 131616144v1 0981430 the form provided by ICS in its Letters. (See Selbitschka Aff., ¶14). Dated: New York, New York January 31, 2017 HINSHAW & CULBERTSON LLP Attorneys for Defendant I.C. System, Inc. By: /s Concepcion A. Montoya Concepcion A. Montoya 800 Third Avenue, 13th Floor New York, New York 10022 Tel: (212) 471-6200 Fax: (212) 935-1166 Email: cmontoya@hinshawlaw.com TO: Craig B. Sanders BARSHAY SANDERS, PLLC Attorneys for Plaintiff 100 Garden City Plaza, Suite 500 Garden City, New York 11530 Tel: (516) 203-7600 Fax: (516) 706-5055 Case 2:15-cv-07040-JFB-GRB Document 29-7 Filed 01/31/17 Page 4 of 4 PageID #: 302 131613912v1 0981430 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK JEREMY IMPELLIZZERI, Plaintiff, - against - I.C. SYSTEM, INC., Defendant. Docket No: 15-cv-07040-JFB-GRB MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT I.C. SYSTEM, INC.’S MOTION FOR SUMMARY JUDGMENT HINSHAW & CULBERTSON LLP Attorneys for Defendant I.C. System, Inc. 800 Third Avenue, 13th Floor New York, New York 10022 Telephone (212) 471-6200 Facsimile (212) 935-1166 Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 1 of 17 PageID #: 303 i 131613912v1 0981430 TABLE OF CONTENTS Page(s) PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF FACTS ..............................................................................................................2 STANDARD OF REVIEW .............................................................................................................5 ARGUMENT ..............................................................................................................................6 POINT I THE LETTER PROPERLY IDENTIFIES THE CREDITOR ...................................................6 POINT II REPORTING TO CREDIT AGENCIES DOES NOT OVERSHADOW THE VALIDATION NOTICE ...................................................................................................9 POINT III PLAINTIFF HAS NOT ALLEGED THAT DEFENDANT ATTEMPTED TO COLLECT THE PROCESSING FEE ................................................................................12 CONCLUSION ..............................................................................................................................14 Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 2 of 17 PageID #: 304 ii 131613912v1 0981430 TABLE OF AUTHORITIES Cases Page(s) Boyd v. J.E. Robert Co., 765 F.3d 123 (2d Cir. 2014).......................................................................................................5 Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)...............................................................................................5 Datiz v. International Recovery Assocs., Inc., 2016 WL 4148330 (E.D.N.Y 2016) .................................................................................8, 9, 12 Expressions Hair Design v. Schneiderman, 137 S.Ct. 30, 195 L.Ed. 902 (2016) .......................................................................................2, 3 FRCP 56; Boyd v. J.E. Robert Co., 765 F.3d 123, 125 (2d Cir. 2014)...............................................................................................5 Lee v. Main Accounts, Inc. 125 F.3d 855, 1997 WL 618803 (6th Cir., Oct. 6, 1997) ........................................................13 McGinty v. Professional Claims Bureau, Inc., 2016 WL 6069180 (E.D.N.Y. 2016) ......................................................................................8, 9 Nicholson v. Forster & Garbus LLP, 570 F. App’x 40 (2d Cir. 2014) .................................................................................................5 Sebrow v. ER Solutions, Inc., 2009 WL 136026 (E.D.N.Y. 2009) ....................................................................................10, 11 Shami v. National Enterprises Systems, 914 F. Supp. 2d 353 (E.D.N.Y. Dec. 27, 2012) .......................................................................13 Spira v. Ashwood Financial, Inc., 358 F. Supp. 2d 150 (E.D.N.Y. 2005) ...........................................................................6, 10, 11 Thomas v. RJM Acquisition LLC, 2014 WL 723676 (E.D.N.Y. 2014) ............................................................................................5 Wright v. Phillips & Cohen Assocs., Ltd., 2014 WL 4471396 (E.D.N.Y. 2014) ......................................................................................6, 7 Statutes §§ 1692e and 1692g(a)(2) of the FDCPA ........................................................................................6 §1692f of the FDCPA ..................................................................................................................2, 4 Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 3 of 17 PageID #: 305 131613912v1 0981430 PRELIMINARY STATEMENT Defendant I.C. System, Inc. (“ICS” or “Defendant”), by its attorneys, Hinshaw & Culbertson, LLP, submits this memorandum of law in support of its motion for an Order: (i) pursuant to Rule 56 of the Federal Rules of Civil Procedure (“FRCP”), granting ICS summary judgment and dismissing Plaintiff Jeremy Impellizzeri’s (“Plaintiff”) Complaint in its entirety with prejudice; and (ii) granting such other and further relief as the Court deems just and proper. In this action, Plaintiff alleges that ICS sent him a letter dated June 2, 2015 (the “Letter”), that violated multiple sections of the Fair Debt Collection Practices Act (“FDCPA”). As further discussed below, each of Plaintiff’s FDCPA claims lack merit.  In his First and Second Counts, Plaintiff alleges that the Letter fails to identify the name of the creditor to whom the debt is owed, in violation of § 1692g(a)(2) of the FDCPA, and is deceptive because it fails to clearly identify the creditor to whom the debt is owed, in violation of § 1692e of the FDCPA. Reading the entirety of the Letter refutes Plaintiff’s claim because there is nothing misleading or deceptive to the least sophisticated consumer with respect to the creditor’s identity.  In his Third Count, Plaintiff alleges that the statement in the Letter that “[t]he account information is scheduled to be reported to the national credit reporting agencies in your creditor’s name if you fail to fulfill the terms of your credit obligations” overshadows the statutorily required validation notice, in violation of § 1692g of the FDCPA. This statement does not violate § 1692g of the FDCPA. Further, Plaintiff’s allegations are based on only one sentence in the Letter taken out of context. Case law from this District confirms that when read in the context of the entirety of the Letter, that statement does not overshadow the validation notice. Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 4 of 17 PageID #: 306 2 131613912v1 0981430  In his Fourth and Fifth Counts, Plaintiff alleges that ICS maintains a payment website where ICS charges a processing fee for payments made via credit cards, and that this practice violates §1692f of the FDCPA. This practice does not violate the FDCPA, the statute does not have any language that bans collection companies from charging a credit card fee. Further, payment via credit cards is one alternative of many for settling any accounts. ICS accepts many other forms of payment, and ICS does not charge a processing fee for such other forms. Finally, ICS reserves its rights pending the outcome of Expressions Hair Design v. Schneiderman, 137 S.Ct. 30 (Mem), 195 L.Ed. 902 (2016) (granting certiorari). For all of these reasons, ICS is entitled to summary judgment dismissing Plaintiff’s claims. STATEMENT OF FACTS Plaintiff alleges that ICS mailed her the Letter. (See Declaration of Concepcion A. Montoya (“Montoya Dec.”), Ex. A, Complaint at ¶ 13). The Letter sought to collect a debt Plaintiff owed to PSEG. (See Affidavit of Michael J. Selbitschka, dated January 31, 2017 (“Selbitschka Aff.”), ¶4 and Ex. A, Letter). The top left-hand side of the Letter states that: Your delinquent account has been turned over to this collection agency. You are hereby notified that I.C. System will forward the account information to the national credit reporting agencies in your creditors name if you fail to fulfill the terms of your credit obligations. Of course, you will have the right then, as you do now, to inspect your credit file in accordance with federal law. I.C. System will not submit the account information to the national credit reporting agencies until expiration of the time period described in the notice below. Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 5 of 17 PageID #: 307 3 131613912v1 0981430 ( Selbitschka Aff., Ex. A). (emphasis added). Immediately to the right of the above statements, the Letter contains a box entitled “Account Summary”: Account Summary T Mobile USA Inc Account No: XXXXXX004 I.C. System Reference No: XXXXXXX2-1-49 Principal Due: $1,145.30 BALANCE DUE: $1,145.30 $.00 has been Paid Since Placement Id. (bold in original). In the center of the Letter is a validation notice: NOTICE Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request of this office in writing within 30 days after receiving this notice this office will provide you with the name and address of the original creditor, if different from the current creditor. Id. Plaintiff never notified ICS that he disputed the validity of the debt at issue, or any portion thereof. (See Selbitschka Aff., ¶5). Defendant’s records indicate that Plaintiff did not communicate with IC System via www.icsystem.com or www.yourpayment.com. (See Selbitschka Aff., ¶6). Plaintiff has not paid any portion of the debt by making an online payment or through any other method. (See Selbitschka Aff., ¶7). Plaintiff has not paid any processing fee by making an online payment. (See Selbitschka Aff., ¶8). Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 6 of 17 PageID #: 308 4 131613912v1 0981430 Online payments are made through the website www.yourpayment.com. (See Selbitschka Aff., ¶9). Any consumer who chose to make a payment online was charged a processing fee by ICS’s third party payment vendor, Pay N Seconds. ICS did not, and does not, charge consumers a processing fee for online payments. (See Selbitschka Aff., ¶10). ICS’s vendor, Pay N Seconds, approves and collects any processing fee. (See Selbitschka Aff., ¶11). ICS did not, and does not, keep any portion of a processing fee, if any, pay by consumers online. (See Selbitschka Aff., ¶12). ICS did not, and does not, charge a fee to any consumer for making an online payment on any account. (See Selbitschka Aff., ¶13). As indicated on the Letter, ICS provides consumers with several additional options to make a payment on an account. A consumer may make a payment over the telephone without a fee. A consumer may also mail a payment without a fee to ICS, with or without using the form provided by ICS in its Letters. (See Selbitschka Aff., ¶14). On December 10, 2015, Plaintiff commenced this action by filing a five-count Complaint in which she alleges that ICS violated multiple sections of the FDCPA: (1) the Letter fails to identify the name of the creditor to whom the debt is owed, in violation of § 1692g(a)(2); (2) the Letter is deceptive because it fails to clearly identify the creditor to whom the debt is owed, in violation of § 1692e; (3) the statement in the Letter that “I.C. System will forward the account information to the national credit reporting agencies in your creditors name if you fail to fulfill the terms of your credit obligations” overshadows the validation notice, in violation of § 1692g; (4) ICS maintains a website for online payments, where ICS charges a processing fee of $3.00 for such payments, in violation of § 1692f; and (5) ICS violated § 1692e by making a false Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 7 of 17 PageID #: 309 5 131613912v1 0981430 representation that it is entitled to receive a processing fee for online payments. (See Montoya Dec., Ex. A at ¶¶ 16-80). Plaintiff seeks only statutory damages of $1,000, plus attorneys’ fees and costs. (Id. at Prayer for Relief, at p. 7-8). On January 7, 2016, ICS filed its Answer, and on February 8, 2016, ICS filed its Amended Answer. (See Montoya Dec., Exs. B and C). On December 1, 2016, ICS requested a pre-motion conference to address its intention to file a motion for summary judgment. (See Dec. 1 Ltr., Docket Entry (“DE”) #24). Plaintiff responded to the December 1, 2016 letter, and requested that Plaintiff also be allowed to cross-move for summary judgment. (See Dec. 2 Ltr, DE #25). At the conference, the parties agreed to a briefing schedule. (See Minute Entry re premotion conference, DE #27). In accordance with that schedule, ICS makes this motion. STANDARD OF REVIEW Summary judgment is appropriate where the moving party demonstrates that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. FRCP 56; Boyd v. J.E. Robert Co., 765 F.3d 123, 125 (2d Cir. 2014); Nicholson v. Forster & Garbus LLP, 570 F. App’x 40, 41 (2d Cir. 2014). A genuine issue of material fact only exists where the evidence is such that a reasonable jury could decide in favor of the non-movant. Nicholson, 570 F. App’x at 41. The opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Thomas v. RJM Acquisition LLC, 2014 WL 723676, at **1-2 (E.D.N.Y. 2014) (quoting Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)). Conclusory assertions are insufficient to meet this burden. Thomas, 2014 WL 723676, at **1-2. As set forth below, Plaintiff’s Complaint should be dismissed because the indisputable facts show that Plaintiff has not (and cannot) establish that ICS violated the FDCPA. Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 8 of 17 PageID #: 310 6 131613912v1 0981430 ARGUMENT POINT I THE LETTER PROPERLY IDENTIFIES THE CREDITOR In the First and Second Counts of her Complaint, Plaintiff alleges that the Letter fails to identify the current creditor, in violation of §§ 1692e and 1692g(a)(2) of the FDCPA. However, as Judge Hurley noted in a prior decision involving similar allegations, reading the entirety of the Letter refutes Plaintiff’s claim. See Wright v. Phillips & Cohen Assocs., Ltd., 2014 WL 4471396, at *5 (E.D.N.Y. 2014) (holding that the least sophisticated consumer would have known, after reading the entirety of the letter, the identity of the creditor). As pertinent to this action, §1692g(a)(2) requires that a debt collector include the “name of the creditor to whom the debt is owed” in the “initial communication with a consumer in connection with the collection of any debt.” Section 1692e of the FDCPA prohibits a debt collector from using “false, deceptive, or misleading representation or means in connection with the collection of any debt.” In determining whether the foregoing sections have been violated, courts in the Second Circuit apply the “least sophisticated consumer” standard, which “requires the Court to analyze the collection letters from the perspective of a debtor who is uninformed, naive, or trusting, but is making basic, reasonable and logical deductions and inferences.” Spira v. Ashwood Financial, Inc., 358 F. Supp. 2d 150, 156 (E.D.N.Y. 2005). Like the Plaintiff here, the plaintiff in Wright alleged that the defendant debt collector violated §§ 1692e and 1692g(a)(2) because its initial letter to the debtor had failed to identify the current creditor. See Wright, 2014 WL 4471396, at *2. The current creditor was Portfolio Asset Group (“PAG”). See id. at *1. The debt collector’s letter in Wright labeled PAG as the “Client”, and Fingerhut as the “Original Creditor.” Id. The body of the letter stated in part that “[y]our Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 9 of 17 PageID #: 311 7 131613912v1 0981430 account has been referred to our office for collection on behalf of our above referenced client.” Id. The court noted that it is undisputed that the letter does contain the name of the creditor. See id. at *5. The court also noted that the creditor was labeled as the “Client”, and any confusion caused by that label was alleviated by the text of the letter stating that the debt collector was seeking to collect the debt on behalf of the “Client”. See id. Thus, the court held that “the least sophisticated consumer would have known, after reading the entirety of the letter, that Defendant sought to collect a debt on behalf of PAG, and that PAG was, therefore, the current creditor to whom he owed his debt.” See id. Accordingly, the court dismissed the plaintiff’s § 1692g(a)(2) claim. See id. Based on the same reasoning, the court also dismissed plaintiff’s § 1692e claim alleging that initial letter failed to identify the creditor. See id. at *6. Thus, the Wright case stands for the proposition that if a least sophisticated consumer reads the entire letter which communicates the identity of the creditor, the letter is not deceptive, confusing or misleading in violation of §§ 1692g(a)(2) and 1692e. Based on that same reasoning, the ICS Letter has not violated §§ 1692g(a)(2) and 1692e because the Letter, when read in its entirety, is not vague or uncertain and, therefore, cannot be deceptive or misleading. For instance:  The Letter contains statements identifying Plaintiff’s account with PSEG: o The “Account Summary” box, which is prominently displayed, leads off with “PSEG - Long Island” followed by the “Account No.” o “Your delinquent account has been turned over to this collection agency.” o “… I.C. System will forward the account information to the national credit reporting agencies in your creditor’s name if ….” Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 10 of 17 PageID #: 312 8 131613912v1 0981430  The ICS letter contains statements identifying ICS as the “collection agency” and not as the creditor: o “Your delinquent account has been turned over to this collection agency.” o “We are a debt collector attempting to collect a debt ….” o There is a separate entry for “I.C. System Reference No.” in the “Account Summary” o “$.00 has been Paid Since Placement” on the “Account Summary” box. o “Make check or money payable to I.C. System, Inc.” (Selbitschka Aff., Ex. A). (emphasis added). Indeed, the referenced “Account Summary” makes it readily apparent that PSEG is the subject account for which ICS is collecting: Account Summary PSEG - Long Island Account No: XXXXX1058 I.C. System Reference No: XXXXXXX9-1-69 Principal Due: $1,191.84 Collection Charge Due: $262.96 BALANCE DUE: $1,454.80 $.00 has been Paid Since Placement Id. (bold in original, underline added). By reading the entire letter and its language, the least sophisticated consumer would have known that ICS sought to collect a debt on behalf of PSEG, and that PSEG was, therefore, the current creditor to whom Plaintiff owed her debt. Recently, two courts in this District have held that the collection letters at issue in those cases violated §§ 1692g(a)(2) and 1692e by failing to identify the creditors. See McGinty v. Professional Claims Bureau, Inc., 2016 WL 6069180 (E.D.N.Y. 2016); Datiz v. International Recovery Assocs., Inc., 2016 WL 4148330 (E.D.N.Y 2016). The collection letters in both Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 11 of 17 PageID #: 313 9 131613912v1 0981430 McGinty and Datiz are distinguishable from ICS’s Letter herein. In those cases, each collection letter mentions the name of the creditor on the “Re:” line only. See McGinty, 2016 WL 6069180, at *1; Datiz, 2016 WL 4148330, at *1. Neither of these letters contained a box separately detailing the account information, such as the “Account Summary” box in the ICS Letter. Without more, the debtor who received the letters in McGinty and Datiz could not draw the connection between the entity listed on the “Re:” line and the “account” that was the subject of the collection. Furthermore, in Datiz, the court also found that the failure to specify where plaintiff could send a direct payment did not “make clear what, if any, relationship the [creditor] has to the [collector] or the Plaintiff's underlying debt.” Datiz, supra at *11. The dearth of the information in the McGinty and Datiz letters led the court to conclude that the creditor was not sufficiently identified. Such is not the case here. Clearly, as explained at length above, the ICS Letter is demonstratively different from the letters in McGinty and Datiz. A reasonable reading of the entire letter shows that PSEG is the creditor and that ICS is the collector. Accordingly, Plaintiff’s First and Second Counts alleging violations of §§ 1692g(a)(2) and 1692e should be dismissed. POINT II REPORTING TO CREDIT AGENCIES DOES NOT OVERSHADOW THE VALIDATION NOTICE The Third Count of Plaintiff’s Complaint alleges that ICS violated §1692g of the FDCPA because the statement in the Letter that “[t]he account information is scheduled to be reported to the national credit reporting agencies in your creditor’s name if you fail to fulfill the terms of your credit obligations” overshadows the required validation notice. Plaintiff’s allegations, however, are based on only one sentence in the Letter taken out of context. Case law from this Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 12 of 17 PageID #: 314 10 131613912v1 0981430 District confirms that when read in the context of the entirety of the Letter, that statement does not overshadow the validation notice. Section 1692g of the FDCPA provides in relevant part that an “independent debt collector soliciting payment provide the consumer with a detailed validation notice within five days of the initial communication.” See Sebrow v. ER Solutions, Inc., 2009 WL 136026, at *4 (E.D.N.Y. 2009). The notice however, may not be overshadowed or contradicted by other language. See id. A “debt collection notice is overshadowing or contradictory if it fails to convey the validation information clearly and effectively and thereby makes the least sophisticated consumer uncertain as to her rights.” Id. In Sebrow and Spira, 358 F. Supp. 2d at 157-58, the courts found that language similar to that at issue here, concerning reporting to credit agencies, did not overshadow the validation notice. In Spira, the collection letter at issue provided that: The above past due account has been placed with us for collection. NOTICE: It is the policy of this agency to report all unpaid accounts to a major credit bureau after 30 days of this notice. Protect your credit by paying this debt. Id. at 153 (bold in original). Below the foregoing language was the required validation notice. See id. The plaintiff asserted that the quoted language after the word “NOTICE” overshadowed the validation notice, in violation of § 1692g. See id. at 157. The court rejected that argument: To the extent that the [letter] states what might happen after 30 days, this could not have confused even an unsophisticated consumer that she had a right to dispute the debt, whether she had paid her bill or not, and how she could exercise that right The Court thus finds the least sophisticated debtor would not be induced to overlook her statutory right to dispute the debt within thirty days. Id. at 157-58. Similarly, in Sebrow, the collection provided in pertinent part that: Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 13 of 17 PageID #: 315 11 131613912v1 0981430 If you fail to resolve this collection account, we may report your delinquent account to Equifax, Trans Union and Experian. This may affect your universal credit score. 2009 WL 136026, at *1. The letter also contained the required validation notice. See id. The plaintiff asserted that the defendant violated § 1692g because the quoted language overshadowed the validation notice. See id. at *5. Like the court in Spira, the court in Sebrow rejected the plaintiff’s argument: Following an examination of the entire text of the letter in question and a perusal of the relevant case law, the court finds that the disputed language does not have the effect of making the least sophisticated consumer uncertain of his or her rights, violating § 1692g(a). Despite plaintiff’s contention to the contrary, there is no language in the letter that would suggest to plaintiff that he must take action within any time frame that contradicts the statutory thirty-day period. Id. at *5. Here, the Letter is similar to those at issue in Spira and Sebrow. It is undisputed that the Letter contains the required validation notice in bold type below the statement concerning credit reporting. (See Selbitschka Aff., Ex. A). It is also indisputable that the Letter states that ICS will not submit Plaintiff’s account information to the national credit reporting agencies until after expiration of the 30-day period described in the validation notice: The account information is scheduled to be reported to the national credit reporting agencies in your creditor’s name if you fail to fulfill the terms of your credit obligations. You have the right to inspect your credit file in accordance with federal law. I.C. System will not submit the account information to the national credit reporting agencies until the expiration of the time period described in the notice below. (See id.) (emphasis added) Thus, like in Spira and Sebrow, it is clear that the Letter does not overshadow the validation notice as the Letter states that ICS will not take any action until after the 30-day Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 14 of 17 PageID #: 316 12 131613912v1 0981430 validation period has ended. Accordingly, Plaintiff’s Third Count alleging a violation of § 1692g should be dismissed. POINT III PLAINTIFF HAS NOT ALLEGED THAT DEFENDANT ATTEMPTED TO COLLECT THE PROCESSING FEE The Complaint alleges §1692f and §1692e alleging an unlawful processing fee. Notably, the allegations in the Complaint mirror the allegations in Datiz v. Int’t Recovery Assocs., Inc., 15-cv-3549(ADS)(AKT), 2016 WL 4148330 (E.D.N.Y. Aug. 4, 2016), where plaintiff’s counsel herein also represented the plaintiff in Datiz. For the same reasons set forth in Datiz, Plaintiff’s claims of an unlawful processing fee should also likewise dismissed. Like Datiz, Plaintiff does not allege that the Letter contains a reference to the processing fee or allege that Defendant even attempted to collect a processing fee from him. Like Datiz, Plaintiff does not allege that he even accessed the website, read its contents or paid a processing fee. The Fourth and Fifth Counts of the Complaint are devoid of any allegations that link Defendant’s website to Plaintiff. Indeed, the Complaint alleges that the processing fee information is contained on the website www.icsystem.com. However, the Letter specifies that payments be made to www.yourpayment.com. All that the Complaint alleges is that Defendant’s website (which is not the same website on the Letter) improperly charges a $3.00 processing fee. Under these same facts (indeed the Complaint and Amended Complaint in Datiz are identical word for word with respect to the processing fee claim), the court in Datiz dismissed plaintiff’s 1692f(1) claim because there was no attempt to collect the processing fee. Simply maintaining a website, which is not even alleged to have been accessed by Plaintiff, does not amount to a violation of the FDCPA. The court in Datiz also dismissed the §1692e claim because Defendant never made any direct Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 15 of 17 PageID #: 317 13 131613912v1 0981430 representations to Plaintiff regarding the processing fee. Similarly here, the Letter sent to Plaintiff does not contain any representations regarding the processing fee; Plaintiff does not allege that he accessed the website, viewed its contents or paid the processing fee. For these reasons, the Fourth and Fifth Counts of the Complaint should be dismissed. In any event, Defendant does not collect any processing fee for online payments and Plaintiff cannot dispute to the contrary. See Selbitschka Aff., ¶¶10-13. Processing fee payments through the website, www.yourpayment.com, are approved and collected by ICS’s vendor, Pay N Seconds. See Selbitschka Aff., ¶¶9-13. Under the law, processing fees paid to a third-party do not amount to violations of the FDCPA. Shami v. National Enterprises Systems, 914 F. Supp. 2d 353 (E.D.N.Y. Dec. 27, 2012). Moreover, an optional processing fee related to a specific payment choice is, by its very nature, not an unconscionable or deceptive debt collection practice. See Lee v. Main Accounts, Inc. 125 F.3d 855, 1997 WL 618803 (6th Cir., Oct. 6, 1997). For all of these reasons, Counts Four and Five of the Complaint should be dismissed. Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 16 of 17 PageID #: 318 14 131613912v1 0981430 CONCLUSION Based upon the foregoing, ICS respectfully requests that its motion be granted and an Order be entered (i) pursuant to FRCP 56, granting ICS summary judgment and dismissing Plaintiff’s Complaint in its entirety with prejudice; and (ii) granting such other and further relief as the Court deems just and proper. Dated: New York, New York January 31, 2017 HINSHAW & CULBERTSON LLP Attorneys for Defendant IC System, Inc. By: /s Concepcion A. Montoya Concepcion A. Montoya 800 Third Avenue, 13th Floor New York, New York 10022 Tel: (212) 471-6200 Fax: (212) 935-1166 Case 2:15-cv-07040-JFB-GRB Document 29-8 Filed 01/31/17 Page 17 of 17 PageID #: 319 Case 2:15-cv-07040-JFB-GRB Document 29-9 Filed 01/31/17 Page 1 of 1 PageID #: 320