Bank v. Cooper, Paroff, Cooper & Cook ( 2009 )

09-2641-cv
Bank v. Cooper, Paroff, Cooper & Cook
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE
32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER,
IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF
THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY
ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE
SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY
ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH
THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 16th day
of December, two thousand nine.
Present:
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.1
________________________________________________
TODD C. BANK,
Plaintiff-Counter-Defendant-Appellant,
v. No. 09-2641-cv
COOPER, PAROFF, COOPER & COOK, IRA G. COOPER, PHILIP S. PAROFF, ADAM P.
COOPER, SHARON E. COOK,
1
The Honorable Joseph M. McLaughlin, originally a member of the panel, recused
himself from consideration of this matter. The remaining members of the panel, who are in
agreement, have decided the case pursuant to 2d Cir. R. § 0.14(b).
Defendants-Counterclaimants-Appellees.
_______________________________________________
For Plaintiff-Counter-
Defendant-Appellant: TODD C. BANK, pro se, Kew Gardens, NY
For Defendants- ADAM P. COOPER (Ira G. Cooper, on the brief),
Counterclaimants-Appellees: Cooper, Paroff, Cooper & Cook, Kew Gardens, NY
Appeal from the United States District Court for the Eastern District of New York
(Weinstein, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Plaintiff-Appellant Todd C. Bank appeals from the May 27, 2009 Memorandum, Order &
Judgment of the District Court for the Eastern District of New York (Weinstein, J.) granting
summary judgment to defendants. We assume the parties’ familiarity with the facts and
procedural history of the case.
Bank claims that defendants violated five provisions of the Federal Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., when they sent him a rent demand notice
stating that he owed $2,854.79 in past due rent and fees, and demanding that he pay that amount
or surrender possession, in default of which the landlord would commence summary proceedings
for possession. Bank first argues that the inclusion of fees in the rent demand notice was
misleading pursuant to 15 U.S.C. §§ 1692e(2)(A), (5), and (10) because under New York law,
defendants could not recover possession of his rent-stabilized apartment for his failure to pay
fees. See Silber v. Schwartzman, 575 N.Y.S.2d 226, 226-27 (1st Dep’t 1991) (per curiam). We
conclude that the inclusion of fees did not render the rent demand notice fatally defective, see
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Brusco v. Miller, 639 N.Y.S.2d 246, 247 (1st Dep’t 1995) (per curiam), or misleading. In fact,
defendants did commence summary proceedings in state court and defendants prevailed.
Bank next contends that the rent demand notice violated the FDCPA because it failed to
disclose that it was from a debt collector. See 15 U.S.C. § 1692e(11). We disagree. The
“question of whether a communication complies with the FDCPA is determined from the
perspective of the least sophisticated consumer.” Jacobson v. Healthcare Fin. Servs., Inc., 516
F.3d 85, 90 (2d Cir. 2008) (internal quotation marks omitted). Here, the thirty-day debt
validation letter stated that defendant Cooper, Paroff, Cooper & Cook had been retained to
collect a debt of $2,854.79 consisting of Banks’ past due rent. Given this letter, the least
sophisticated consumer would understand that the rent demand notice, which bore the same date
as the debt validation letter, was from the same law firm, and demanded the same sum, was from
a debt collector.
Finally, Bank argues that defendants violated the FDCPA’s prohibition against “[t]he
collection of any amount (including any . . . fee . . .) unless such amount is expressly authorized
by the agreement creating the debt,” 15 U.S.C. § 1692f(1), when they included a $35 bad check
fee in the rent demand notice because the lease authorized only a $25 bad check fee. Bank
admitted at oral argument, however, that defendants never actually collected a $35 bad check fee.
Therefore, we do not find a violation of section 1692f(1), which prohibits the collection of
unauthorized fees. Further, we do not find defendants’ attempt to collect $35 to be an “unfair or
unconscionable means to . . . attempt to collect any debt.” See id. § 1692f. Our conclusion is
bolstered by both parties’ recognition that the inclusion of a $35 fee instead of a $25 fee was a
clerical error.
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In addition to his arguments on the merits, Bank contends that the adjudication of his case
by a senior judge violated Article III. The argument is without merit. Senior judges are fully
commissioned Article III judges, and the Supreme Court has expressly held that upon assuming
senior status, a senior judge “does not surrender his commission, but continues to act under it.”
Booth v. United States, 291 U.S. 339, 350-51 (1934); see also United States v. Moore, 101 F.2d
56 (2d Cir. 1939).
We have considered the remainder of plaintiff-appellant’s arguments and conclude that
they lack merit. Accordingly, for the foregoing reasons, the judgment of the district court is
hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
By:_________________________________
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