Scioli v. Goldman & Warshaw P.C.

651 F. Supp. 2d 273 (2009)

James SCIOLI, on behalf of himself and all others similarly situated, Plaintiff,
v.
GOLDMAN & WARSHAW P.C., Defendant.

Civil Action No. 08-cv-5739 (JEI/JS).

United States District Court, D. New Jersey.

September 1, 2009.

Friedman Doherty, LLC by Donald M. Doherty, Jr., Esq., West Berlin, NJ, for Plaintiff.

Lucas and Cavalier, LLC by Matthew S. Marrone, Esq., Haddon Heights, NJ, for Defendant.

OPINION

IRENAS, Senior District Judge:

Plaintiff James Scioli brings this Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p, class action suit against Defendant Goldman & Warshaw, P.C. ("Goldman"), the law firm seeking to collect a debt Plaintiff allegedly owes to non-party Capital One Bank (USA), N.A. ("Capital One").^[1]

Two issues are raised by Goldman's present Motion to Dismiss the Second Amended Complaint pursuant to Fed. R.Civ.P. 12(b)(6). First, does New Jersey law permit recovery of both contractual attorneys fees and statutory attorneys fees in a successful suit to recover a debt? (See 2nd Amend. Compl. Count 1) Second, even if New Jersey law permits collection of both fees, could the least sophisticated debtor be deceived by a debt collector including a specific sum of statutory fees in a court summons when the statutory fee is only actually due and owing after judgment is entered for the debt collector? (See 2nd Amend. Compl. Count 2)

The Court concludes that the answer to the first question is yes and the answer to the second question is no. Accordingly, Goldman's Motion to Dismiss will be granted.

I.

In October, 2008, Goldman, on behalf of its client, Capital One, filed a lawsuit against Scioli, a Capital One credit card holder, in the Superior Court of New Jersey, Law Division.^[2] The complaint seeks to collect the alleged outstanding balance on Scioli's credit card, demanding judgment of "$3,410.16 plus any additional accrued interest, contractual attorney fees (if applicable) and costs." (State Court Complaint^[3]) The accompanying summons contains the following itemization in the top right corner of the document:

Demand Amount              $3,410.16
Filing Fee                 $   50.00
Service Fee                $    7.00
Contractual Atty Fee       $  337.81
Statutory Attorney's Fee   $   82.86
_________
Total                      $3,887.83

Scioli contends that Goldman violated the FDCPA in the following manner. Count One of the Second Amended Complaint alleges, "contractual attorney's fees and statutory attorneys [fees] are not legally able to be collected in the same case[;] . . . [therefore] Defendant misrepresented the amount due and attempted to ``double dip' the counsel fee award by collecting such fees under two different, mutually exclusive, fee mechanisms." (2nd Amend. Compl. ¶¶ 11, 15)

Count Two of the Second Amended Complaint alleges,

to the extent that it may be possible to collect the two types of [attorney's] fees in one proceeding, the statutory fees are in the nature of taxed costs and are thus not due at the time the statutory fees are represented to the consumer as being due. . . . By including the statutory fees in the initial pleading . . . — when any taxed costs are not due because the litigation has not been successfully concluded in favor of the creditor—the total debt due is being misrepresented, the debtor is confused as to what sums are necessary to satisfy the debt and/or the Defendant is attempting to collect a debt in [a] fashion . . . not permitted by the FDCPA.

(2nd Amend. Compl. ¶¶ 11, 18) (emphasis in original)

Goldman moves to dismiss both Counts, arguing that: (1) it may legally collect both contractual and statutory attorneys fees; and (2) stating, at the outset of the case, the amount of statutory attorneys fees due is not deceptive.

II.

Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In order to survive a motion to dismiss, a complaint must allege facts that raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); see also Fed.R.Civ.P. 8(a)(2). While a court must accept as true ail allegations in the plaintiff's complaint, and view them in the light most favorable to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008), a court is not required to accept sweeping legal conclusions cast in the form of factual allegations, unwarranted inferences, or unsupported conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). The complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Phillips, 515 F.3d at 234. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

III.

With respect to the actions of debt collectors^[4], the FDCPA prohibits "false or misleading representations," 15 U.S.C. § 1692e, and "unfair practices," 15 U.S.C. § 1692f. Insofar as relevant to the present suit,

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

. . .

(2) The false representation of—

(A) the character, amount, or legal status of any debt; or

(B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.

15 U.S.C. § 1692e(2)(A)-(B).

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

15 U.S.C. § 1692f(1).

Scioli asserts that Goldman's actions violate both § 1692e(2)(A)-(B) and § 1692f(1).

A.

As already stated, the first issue presented is whether New Jersey law permits recovery of both contractual attorneys fees and statutory attorneys fees in a successful suit to recover a debt. In this case, the contractual attorneys fees are the fees to which Goldman is undisputedly (at least for purposes of this litigation^[5]) entitled under Scioli's Customer Agreement with Capital One; and the statutory fees are the fees described in N.J.S.A. 22A:2-42.^[6] If recovery of both is not permitted, then Goldman apparently does not dispute that seeking to recover both is a "false representation of . . . compensation which may be lawfully received by any debt collector for the collection of a debt," 15 U.S.C. § 1692e(2)(B), and is an "attempt to collect . . . [a] fee, charge, or expense incidental to the principal obligation . . . [which is not] permitted by law," 15 U.S.C. § 1692f(1). On the other hand, if Goldman may legally collect both the contractual and statutory attorneys fees, then (subject to the Court's analysis of Scioli's second claim, infra) Goldman has not made a false representation as to the compensation it may receive, see § 1692e(2)(B), nor attempted to collect a fee that is not authorized by law, see § 1692f(1).

As the parties' briefs demonstrate, the answer to this question mainly depends on this Court's interpretation and application of Bancredit, Inc. v. Bethea, 65 N.J.Super. 538, 168 A.2d 250 (App.Div.1961). In Bethea, a judgment of $448.99 was entered in favor of Bancredit, which a jury found to be the holder in due course of a promissory note the Betheas executed in conjunction with the sale of a car. Id. at 542, 168 A.2d 250. The Betheas appealed, asserting various merits arguments^[7], and also asserting that the trial judge erred in allowing a "``double attorney's fee'" to plaintiff's counsel. Id. at 551, 168 A.2d 250. The trial court awarded Bancredit attorney's fees in accordance with the provisions of the promissory note (providing for a "15% counsel fee" as part of "expenses of collection") and then also awarded statutory attorneys fees pursuant to N.J.S.A. 22A:2-42. Id. at 551-52, 168 A.2d 250.

The Appellate Division affirmed, explaining,

We find neither inconsistency nor repetition in the court's allowance of both these amounts. The 15% Award was a recognition of the parties' contractual arrangement. . . . It was properly included in the formal judgment. While the amount is designated as ``attorney's fees,' it is in effect a reimbursement or indemnification of [Bancredit] for estimated legal expenses in effecting collection. It is not conditioned upon the actual institution of suit. Moreover, the obligation created in the note is the property of [Bancredit] and not of [its] attorney. The attorney must still depend, for his compensation, on the credit of his client or on prompt attachment of his statutory lien. The 5% Allowance, on the other hand, is tied to the successful prosecution of suit in the county district court, and is payable directly to the attorney. As a taxed cost of litigation, it is in the nature of a statutorily authorized penalty against the judgment debtor, saddling him with the burden of compensating the creditor's attorney for the latter's litigational duties.

. . .

. . . [W]e accept [the trial court's] altogether logical recognition of the distinction between a contractual arrangement to cover any and all legal expenses attendant upon collection, regardless of whether suit is instituted, and a statutory court-imposed cost allowed solely for the prosecution of suit to final judgment.

Bethea, 65 N.J.Super. at 552-53, 168 A.2d 250.

Goldman relies on Bethea's holding— that the trial court did not err in awarding both contractual legal expenses and attorney fees pursuant N.J.S.A. 22A:2-42—to assert that it may lawfully collect attorneys fees pursuant to the Customer Agreement and 22A:2-42. Scioli, on the other hand, distinguishes Bethea.

Scioli asserts that the promissory note clause at issue in Bethea did not provide for "an award of compensatory counsel fees," rather, it was "a liquidated damages provision couched in the context of an attorney's fee award." (Pl's Br. at p. 4) In contrast, Scioli argues, the Customer Agreement clause at issue here is a true "fee shift" provision, not a liquidated damages provision. (Id. at p. 5) Scioli reasons that this difference is critical: Bethea's result was correct because an award pursuant to N.J.S.A. 22A:2-42 is the "default provision" in the absence of a contractual fee shift. (Id. at p. 5, n. 6) But in this case, the contract contains a fee shift provision, which is not a liquidated damages clause (Scioli contends), therefore Goldman may not also collect fees pursuant to N.J.S.A. 22A:2-42.

While Scioli's conceptual distinction between a fee shift provision and a liquidated damages clause is interesting, the Court is not persuaded that the Customer Agreement here is meaningfully different from the promissory note in Bethea, regardless of the labels one might ascribe to the clauses at issue. The promissory note in Bethea provided:

If any installment of this note is not paid when due, then all installments hereof shall immediately become due and payable at the option of the holder hereof, without notice or demand, and the undersigned hereby agrees to pay all expenses of collection including 15% Attorney's fees if placed in the hands of an attorney for collection.

65 N.J.Super. at 551, 168 A.2d 250 (emphasis added).

The Customer Agreement in this case provides, in relevant part:

At any time following any default under this Agreement . . . you will be subject to paying interest, finance charges and other fees pursuant to the terms of this Agreement . . . To the extent permitted by applicable law, you agree to pay us all of our actual court costs, collection expenses and attorney's fees incurred by us in the collection of any amount you owe us under this Agreement.

(Ex. B to Goldman's Motion to Dismiss) (emphasis added).

The Bethea court based its reasoning on the distinction between agreeing to pay collection costs (which do not necessarily include costs of litigation) and the statutory fee provision which only applies after judgment is entered. Here, as in Bethea, the parties' contract speaks of "collection expenses . . . incurred by us in the collection of any amount you owe us." Indeed, the contract here is even more clear in the distinction because it separately identifies "actual court costs." Thus, the Court finds no meaningful difference between Bethea and this case, therefore the holding of Bethea must apply here.^[8] Goldman may legally collect attorney's fees pursuant to both the Customer Agreement and N.J.S.A. 22A:2-42.

The Court reaches this conclusion notwithstanding Scioli's additional argument that Bethea "is a rogue decision by a lower court not empowered to make public policy." (Pl's Br. at p. 6) Specifically, Scioli argues that Bethea's characterization of N.J.S.A. 22A:2-42 as a "statutorily authorized penalty," 65 N.J.Super. at 552, 168 A.2d 250, must be disregarded because it cannot be reconciled with the New Jersey Supreme Court's discussion of the American Rule regarding attorney's fees. See In re Niles, 176 N.J. 282, 823 A.2d 1 (2003). However, the Court finds no conceptual conflict between Bethea and Niles,

First, it should be noted that Niles created an exception to the American Rule "which generally does not permit a prevailing party to recover counsel fees from a losing party." 176 N.J. at 286, 823 A.2d 1 (emphasis added). Thus Niles itself demonstrates that, in limited circumstances, a prevailing party may legally recover counsel fees. Indeed, Scioli acknowledges that one of the most common exceptions to the American Rule—the contract exception—applies in this case. Scioli does not (and cannot) contend that the attorney's fee provision in the Customer Agreement is unenforceable under the American Rule.

Scioli does contend, however, that by allowing recovery of both contractual and statutory fees, Bethea violates the general spirit of the American Rule, the purpose of which is to "ensur[e] equity by not penalizing persons for exercising their right to litigate a dispute, even if they should lose." Niles, 176 N.J. at 294, 823 A.2d 1. The flaw in Scioli's reasoning is that the "penalty" at issue in Bethea, and here, is a penalty created by statute and statutory fee shifting provisions are another common exception to the American Rule. See Niles, 176 N.J. at 293, 296, 823 A.2d 1. Separate exceptions to the American Rule allow recovery of both types of attorney's fees at issue in this case, and the American Rule, as discussed in Niles, is not violated.^[9]

In conclusion, the Court holds that Bethea is not meaningfully distinguishable from the present case and is not in direct conflict with New Jersey Supreme Court precedent. As such, the Court must conclude that New Jersey law permits recovery of both the contractual and statutory fees at issue here, therefore Scioli has not pled a violation of the FDCPA. Accordingly, Goldman's Motion to Dismiss Count 1 of the Second Amended Complaint will be granted.

B.

Scioli further contends that including the statutory fees in the summons is a deceptive practice under the FDCPA^[10] because those fees are contingent upon Capital One prevailing in the lawsuit^[11], an event which, of course, cannot have occurred by the time of service. Goldman, on the other hand, asserts that the statutory fee notation on the summons is merely a "request," "recommendation," or "suggestion" and therefore cannot be a misrepresentation as a matter of law.

"``Lender-debtor communications potentially giving rise to claims under the FDCPA should be analyzed from the perspective of the least sophisticated debtor.'" Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir.2008) (quoting Brown v. Card Serv. Ctr., 464 F.3d 450, 454 (3d Cir.2006)). The least sophisticated debtor standard is not a reasonable debtor standard; "``[a] communication that would not deceive or mislead a reasonable debtor might still deceive or mislead the least sophisticated debtor.'" Id. However, the least sophisticated debtor standard does not impose liability based on "``bizarre or idiosyncratic interpretations'" of communications. Id. (quoting Wilson v. Quadramed Corp., 225 F.3d 350, 354 (3d Cir. 2000)). Even the least sophisticated debtor is presumed to have "a basic level of understanding and willingness to read with care." Id.; see also Campuzano-Burgos v. Midland Credit Mgmt., 550 F.3d 294, 301 (3d Cir.2008) ("Even the least sophisticated debtor possess[es] some common sense.").

When addressing claims under § 1692e, the question is whether the allegedly deceptive communication "``can be reasonably read [by the least sophisticated debtor] to have two different meanings, one of which is inaccurate.'" Rosenau, 539 F.3d at 223 (quoting Quadramed Corp., 225 F.3d at 354).^[12]

Applying this standard, the Court holds that even the least sophisticated debtor could not reasonably believe that he owed $3,887.83, which includes the $82.86 Statutory Attorney's Fee, at the outset of the state court litigation. An unsophisticated debtor is presumed to have read the summons and complaint, and after reading those documents, he could only conclude that Goldman had initiated a lawsuit seeking the amounts itemized on the summons.

The summons, which is a form created by the State of New Jersey, not Goldman, specifically states on the first page, "[i]n the attached complaint, the person suing you (who is called the plaintiff) . . . briefly tells the court his or her version of the facts of the case and how much money he or she claims you owe. . . . [I]f you do not answer the complaint, you may lose the case automatically, and the court may give the plaintiff what the plaintiff is asking for, plus interest and court costs." N.J. Ct. R. App'x XI-A(1)^[13] (emphasis added)

On the second page of the New Jersey form of summons, in the top right corner, appears an itemized list of fees (with blanks for the amount of fees) almost identical to the list Goldman used:

Demand Amount     $_________
Filing Fee        $_________
Service Fee       $_________
Attorney's Fees   $_________

N.J. Ct. R. App'x XI-A(1).^[14] Thus, Scioli essentially asks this Court to hold that the form summons created by the State of Hew Jersey, and used by countless lawyers and non-lawyers throughout the State, violates the FDCPA. But such a holding would defy common sense and would not further the goals of the FDCPA. Contrary to Scioli's contention, using the form summons—a form specifically created for the unsophisticated defendant— helps to ensure that even the least sophisticated debtor will understand the true "character, amount, or legal status" of his debt. 15 U.S.C. § 1692e(2)(A). Indeed, as Goldman observes, failing to separately itemize the various fees sought could be misleading.^[15]

All of the items listed on the summons are only due after a judgment is entered. As noted previously, the Statutory Attorney's Fee is a taxed cost which is only due after judgment is entered. N.J.S.A. 22A:2-42 ("There shall be taxed by the clerk . . . in the costs against the judgment debtor. . . ."); see also Bethea, 65 N.J.Super. at 552-53, 168 A.2d 250 (describing the fee assessed pursuant to N.J.S.A. 22A:2-42 as a "taxed cost"). Likewise, the Filing Fee and the Service Fee are statutory fees to be "charged by the clerk." N.J.S.A. 22A:2-37.1. Yet Scioli does not even allege that the Filing Fee, Service Fee, the Contractual Attorney's Fee, nor the demand amount, are somehow deceptive. Indeed, for the reasons already explained, the form of summons would make clear to an unsophisticated debtor that the fees may be due if the plaintiff prevails in the lawsuit.

Thus, the Court holds that the least sophisticated debtor could not reasonably conclude that the "Statutory Attorney's Fee" of $82.86 listed on the summons was due and owing at the outset of the litigation, therefore Scioli has failed to state a claim for relief under § 1692e. Accordingly, Goldman's Motion to Dismiss Count 2 of the Second Amended Complaint will be granted.

IV.

For the foregoing reasons, Goldman's Motion to Dismiss will be granted in its entirety. An appropriate Order accompanies this Opinion.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (Docket # 7)

This matter having appeared before the Court on Defendant Goldman & Warshaw's Motion to Dismiss the Second Amended Complaint (Docket No. 7) pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court having considered the submissions of the parties, for the reasons set forth in an Opinion issued by this Court on even date herewith, which findings of fact and conclusions of law are incorporated herein, and for good cause appearing;

IT IS on this 1st day of September, 2009,

ORDERED THAT:

1. Defendant's Motion to Dismiss the Second Amended Complaint (Docket # 7) is hereby GRANTED.

2. The Clerk of Court is hereby directed to CLOSE THIS FILE.

APPENDIX XI-A(1)

SUMMONS AND RETURN OF SERVICE

THE SUPERIOR COURT OF NEW JERSEY

Law Division, Special Civil Part SUMMONS

YOU ARE BEING SUED!

IF YOU WANT THE COURT TO HEAR YOUR SIDE OF THIS LAWSUIT, YOU MUST FILE A WRITTEN ANSWER WITH THE COURT WITHIN 35 DAYS OR THE COURT MAY RULE AGAINST YOU. READ ALL OF THIS PAGE AND THE NEXT PAGE FOR DETAILS.

In the attached complaint, the person suing you (who is called the plaintiff) briefly tells the court his or her version of the facts of the case and how much money he or she claims you owe. You are cautioned that if you do not answer the complaint, you may lose the case automatically, and the court may give the plaintiff what the plaintiff is asking for, plus interest and court costs. If a judgment is entered against you, a Special Civil Part Officer may seize your money, wages or personal property to pay all or part of the judgment and the judgment is valid for 20 years.

You can do one or more of the following things:

1. Answer the complaint. An answer form is available at the Office of the Clerk of the Special Civil Part. The answer form shows you how to respond in writing to the claims stated in the complaint. If you decide to answer, you must send it to the court's address on page 2 and pay a $15 filing fee with your answer and send a copy of the answer to the plaintiffs lawyer or to the plaintiff if the plaintiff does not have a lawyer. Both of these steps must be done within 35 days (including weekends) from the date you were "served" (sent the complaint). That date is noted on the next page.

AND/OR

2. Resolve the dispute. You may wish to contact the plaintiffs lawyer, or the plaintiff if the plaintiff does not have a lawyer, to resolve this dispute. You do not have to do this unless you want to. This may avoid the entry of a judgment and the plaintiff may agree to accept payment arrangements, which is something that cannot be forced by the court. Negotiating with the plaintiff or the plaintiffs attorney will not stop the 35-day period for filing an answer unless a written agreement is reached and filed with the court.

AND/OR

3. Get a lawyer. If you cannot afford to pay for a lawyer, free legal advice may be available by contacting Legal Services at _____________. If you can afford to pay a lawyer but do not know one, you may call the Lawyer Referral Services of your local county Bar Association at ____________.

If you need an interpreter or an accommodation for a disability, you must notify the court immediately.

La traducción al español se encuentra al dorso de esta página.

Effective 9/2002

Clerk of the Special Civil Part

EL TRIBUNAL SUPERIOR DE NUEVA JERSEY

División de Derecho, Parte Civil Especial

NOTIFICACIÓN DE DEMANDA

ILE ESTÁN HACIENDO JUICIO!

SI UD. QUIERE QUE EL TRIBUNAL VEA SU VERSIÓN DE ESTA CAUSA, TIENE QUE PRESENTAR UNA COTESTACIÓN ESCRITA EN EL TRIBUNAL DENTRO DE UN PERÍODO DE 35 DÍAS O ES POSIBLE QUE EL TRBUNAL DICTAMINE EN SU CONTRA. PARA LOS DETALLES, LEA TODA ESTA PÁGINA Y LA QUE SIGUE.

En la demanda adjunta, la persona que le está haciendo juicio (que se llama el demandante) da al juez su versión breve de los hechos del caso y la suma de dinero que alega que Ud. le debe. Se le advierte que si Ud. no contesta la demanda, es posible que pierda la causa automáticamente y que el tribunal dé al demandante lo que pide más intereses y costas. Si se registra una decisión en su contra, es posible que un Oficial de la Parte Civil Especial (Special Civil Part Officer) embargue su dinero, salario o bienes muebles para pagar toda o parte de la adjudicación, y la adjudicación tiene 20 años de vigencia.

Usted puede escoger entre las siguientes opciones:

1. Contestar la demanda. Puede conseguir un formulario de contestación en la Oficina del Secretario de la Parte Civil Especial. El formulario de contestación le indica cómo responder por escrito a las alegaciones expuestas en la demanda. Si Ud. decide contestar. tiene que enviar su contestación a la dirección del tribunal que figura en la página 2, pagar un gasto de iniciación de la demanda de $15 dólares y enviar una copia de la contestación al abogado del demandante, o al demandante si el demandante no tiene abogado. Tiene 35 dias (que incluyen fines de semana) para hacer los trámites a partir de la fecha en que fue "notificado" (le enviaron la demanda). Esa fecha se anota en la página que sigue.

ADEMÁS, O DE LO CONTRARIO, UD. PUEDE

2. Revolver la disputa. Posiblemente Ud.. quiera comunicarse con el abogado del demandante, o el demandante si el demandante no tiene abogado, para resolver esta disputa. No tiene que hacerlo si no quiere. Esto puede evitar que se registre una adjudicación y puede ser que el demandante esté de acuerdo con aceptar un convenio de pago lo cual es algo que el juez no puede imponer. Negociaciones con el demandante o el abogado del demandante no suspenderán el termino de 35 dias para registrar una contestación a menos que se llegue a un acuerdo escrito que se registra en el tribunal.

ADEMÁS, O DE LO CONTRARIO, UD. PUEDE

3. Conseguir un abogado. Si Ud. no tiene dinero para pagar a un abogado, es posible que pueda recibir consejos legales gratuitos comunicándose con Servicios Legales (Legal Services) al _________________. Si tiene dinero para pagar a un abogado pero no conoce ninguno puede llamar a Servicios de Recomendación de Abogados (Lawyer Referral Services) del Colgeio de Abogados (Bar Association) de su condado local al _________________.

Si necesita un intérprete o alguna acomodación para un impedimento, tiene que notificarselo inmediatamente al tribunal.

_____________ Secretario de la Parte Civil Especial

SPECIAL CIVIL PART SUMMONS AND RETURN OF SERVICE-PAGE 2

Plaintiff or Plaintiffs Attorney Information:

Name: ______________ Address: _________________________ Telephone No.: () __________ _____________________, Plaintiff(s) versus __________________, Defendant(s) Demand Amount: $_____________ Filing Fee: $_____________ Service Fee: $_____________ Attorney's Fees: $___________ TOTAL $0____________ SUPERIOR COURT OF NEW JERSEY LAW DIVISION, SPECIAL CIVIL PART _____________COUNTY __________________________ Docket No:_______________ (to be provided by the court) Civil Action SUMMONS (Circle one): [] Contract or [] Tort Defendant(s) Information: Name, Address & Phone: __________________________ __________________________ __________________________ __________________________ __________________________ __________________________ Date Served: ____________ RETURN OF SERVICE IF SERVED BY COURT OFFICER (For Court Use Only) Docket Number ____________ Date ____________ Time________________ WM ________ WF _________ BM__________ BF__________ OTHER ___________ HT _________ WT ________ AGE _______ HAIR ________ MUSTACHE _____________ BEARD __________ GLASSES ____________ NAME: _________ RELATIONSHIP: _____________ Description of Premises _____________________________ I hereby certify the above to be true and accurate: _____________ Court Officer RETURN OF SERVICE IF SERVED BY MAIL (For Court Use Only) I, ____________, hereby certify that on ____________, I mailed a copy of the within summons and complaint by regular and certified mail-return receipt requested. _________________ Employee Signature

NOTES

[1] This Court has federal question subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

[2] The parties' litigation in the Law Division is ongoing as of the date of this Opinion.

[3] The state court complaint and summons are the documents at issue in this case. While those documents were not physically attached to the Complaint in this case, Goldman has attached them to its motion to dismiss. Scioli expressly states that he does not object to the Court considering these documents in ruling on the instant motion. Moreover, the Court need not convert the motion to dismiss to a motion for summary judgment. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997) (explaining, "a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.") while the deposition transcript of Mr. Warshaw, of Defendant Goldman & Warshaw was submitted in connection with the instant motion, the Court has determined that the information contained in the transcript is unnecessary to the resolution of the motion, and the Court has not relied on it in reaching the decision in this case.

[4] "The term ``debt collector' means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). Goldman does not assert that it is not a "debt collector" within the meaning of the FDCPA; therefore this Opinion assumes that the FDCPA applies to Goldman.

[5] Scioli might well dispute the contractual attorneys fees in the underlying state court litigation.

[6] "There shall be taxed by the clerk of the Superior Court, Law Division, Special Civil Part in the costs against the judgment debtor, a fee to the attorney of the prevailing party, of five per centum (5%) of the first five hundred dollars ($500.00) of the judgment, and two per centum (2%) of any excess thereof." N.J.S.A. 22A:2-42.

[7] The Betheas argued that the trial court erred in rejecting their defenses of fraud in the factum and Lynn Bethea's infancy. Bethea, 65 N.J.Super. at 544-50, 168 A.2d 250. The court affirmed the trial court's ruling with regard to fraud in the factum and reversed and remanded on the issue of Lynn Bethea's infancy. Id. at 553, 168 A.2d 250.

[8] Because there is no New Jersey Supreme Court case directly addressing the issue presented, this Court follows Bethea. See Fidelity Union Trust Co. v. Field, 311 U.S. 169, 178, 61 S. Ct. 176, 85 L. Ed. 109 (1940) ("The highest state court is the final authority on state law but . . . [a]n intermediate state court in declaring and applying the state law, . . . in the absence of more convincing evidence of what the state law is, should be followed by a federal court in deciding a state question.").

[9] Scioli also relies upon two other New Jersey Supreme Court opinions: U.S. Pipe v. United Steelworkers of America, 37 N.J. 343, 181 A.2d 353 (1962) and Lettenmaier v. Lube Connection, Inc., 162 N.J. 134, 741 A.2d 591 (1999). Neither change this Court's conclusion because neither addresses the issue presented here.

U.S. Pipe addressed the availability of attorney's fees under New Jersey's Anti-injunction Act (applicable in labor disputes), and reached a holding that seems to undermine Scioli's argument. See U.S. Pipe, 37 N.J. at 356, 181 A.2d 353 ("This case holds that . . . the allowance of both costs and counsel fees [in cases falling within section 53 of the Anti-Injunction Act] is mandatory and not merely discretionary.").

Lettenmaier also addressed a very different issue: "whether counsel fees under the Consumer Fraud Act (N.J.S.A. 56:8-19) should be considered part of the ``amount in controversy' in calculating the $10,000 jurisdictional limit" of the Superior Court's Special Civil Part. 162 N.J. at 135, 741 A.2d 591. Lettenmaier does make passing reference to N.J.S.A. 22A:2-42, but the court's one-sentence, ambiguous description of the statute's operation, see 162 N.J. at 138, 741 A.2d 591 ("That statute only comes into play in which counsel fees are not otherwise awardable under the Rules or under a specific fee-shifting provision."), in a case where N.J.S.A. 22a:2-42 was not at issue and Bethea is not cited, is insufficient authority to support a conclusion that Bethea is no longer good law. Moreover, the case Lettenmaier cites In support of the above-quoted sentence, Alba v. Sopher, 296 N.J.Super. 501, 687 A.2d 309 (App.Div.1997), dealt with a specific fee-shifting provision in another statute, suggesting that the sentence was not meant to address fee-shifting provisions in contracts.

[10] Scioli advances other theories of recovery in his brief. He asserts that Goldman altered the basic court summons form by typing its own itemization of costs and fees in the corner of the form, and that the complaint omits the statutory fee appearing on the summons. Because neither theory is pled in the Second Amended Complaint, the Court does not address them in this Opinion.

[11] See N.J.S.A. 22A:2-42, quoted supra at n. 6.

[12] While the Second Amended Complaint somewhat imprecisely seems to assert that Goldman's actions alleged in Count 2 violate both §§ 1692e and 1692f, given the Court's ruling with respect to Count 1, Goldman could not have violated § 1692f because Goldman may legally collect the statutory fee. See § 1692f (prohibiting the collection of any fee "unless such amount is . . . permitted by law.") (emphasis added).

[13] Available at http://www.judiciary.state.nj. us/civil/forms/10536.pdf. Notably, such forms are easily accessible to the public through the New Jersey Judiciary's website. A web page entitled, "Represent Yourself in Court (Pro Se) Self-Help Resource Center," provides, among other things, links to the New Jersey Court Fee Schedule and a link to the form summons for the Special Civil Part. See http:// www.judiciary.state.nj.us/prose/index. htm# civil. (Copies of the web pages cited are attached to this Opinion.)

[14] Goldman separately identified statutory attorney's fees, which avoids any confusion regarding the two types of attorney's fees sought: attorney's fees that may be due under the Customer Agreement and the statutory fee.

[15] To be clear, the Court does not hold that a debt collector must itemize the fees and costs it seeks in order to comply with the FDCPA. The Court only holds that under the facts of this case, Goldman did not violate the FDCPA by including an itemization on the summons.