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Silva v. Lustig Glaser & Wilson P.C.

United States District Court, D. Massachusetts

April 1, 2016




Defendant Lustig, Glaser & Wilson (LG&W) was retained by Citibank, N.A., to collect a credit card debt from plaintiff Christina Silva. Silva filed this action alleging that, in collection of the debt, LG&W violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, “by falsely representing the character, amount or legal status of [her] alleged debt [Count I and Count II]; . . . continuing to contact [her] without having first provided verification of the debt, after having received written communication from her disputing the debt [Count III]; . . . [and] by attempting to collect an amount from [her] not permitted by law, including by retroactively charging interest to the Debt without the legal right to do so. [Count IV]” Compl. ¶¶ 33, 44, 50. Silva also insists that Citibank sold the debt to LG&W who “retroactively assessed interest on the Debt” after Citibank had “charged off the Debt and ceased attempting to collect the Debt from [Silva.]” Compl. ¶¶ 21-22, 27-28.

LG&W filed an Answer and Counterclaim against Silva asserting abuse of process - that she instituted this lawsuit as leverage in Citibank’s collection litigation against her. LG&W has moved to dismiss Silva’s claims as barred by the statute of limitations, arguing that its validation of the debt was received by Silva in May of 2014, and that she filed this lawsuit on October 29, 2015, outside FDCPA’s one-year statute of limitations. LG&W also asserts that the Complaint fails to state an actionable claim under the FDCPA - that the documentation LG&W provided to Silva (attached to its Answer) is inconsistent with the recitation of facts contained in the Complaint. Pursuant to Fed.R.Civ.P. 12(c), LG&W also moves for judgment on the pleadings on its counterclaim.


In its efforts to collect a debt of behalf of Citibank, on December 28, 2011, LG&W sent Silva a letter identifying itself as a debt collector and setting out, as required by the FDCPA, the amount of her debt - $6, 002.39; and the name of the creditor to whom the debt is owed - Citibank, N.A.; along with Silva’s account number and merchant information. The notice also provided Silva with a toll-free number to “contact [LG&W] at your first opportunity so we can work together to arrive at a reasonable payment program if you are unable to pay the full balance due on your account at this time.” Answer -Ex. B. The letter also advised Silva of her right to dispute and/or request verification of the debt within thirty days. LG&W’s communication specifically included the following language:


This is an attempt to collect a debt. Any information obtained will be used for that purpose. If you do not dispute the validity of this debt, or any portion thereof, within thirty days after receiving this letter, we will assume it is valid. If you do dispute the validity of this debt, or any portion thereof, in writing, within the thirty-day period, we will obtain verification of the debt or a copy of any judgment and will mail a copy of such verification or judgment to you. At your request in writing, within the thirty day period, we will provide you with the name and address of the original creditor, if different from the current creditor. This communication is from a debt collector.

Def.’s Answer - Ex. A at 3.

On January 21, 2012, Silva responded to LG&W that she was “not refus[ing] to pay [and] would like to resolve this matter at the earliest possible time” but requested verification “that I owe you this purported debt and why.” Id. - Ex. E at 3. On February 27, 2012, Silva again contacted LG&W with a self-styled NOTICE OF FAULT/NON-PERFORMANCE advising that it had failed to “timely respond” to her “demand for verification” resulting in a “self-executing contract” with a fee schedule corresponding with any future collection attempts by LG&W or any negative consumer credit reporting arising from the debt. Id. at 5-6.

LG&W did not contact Silva again until May 13, 2014. LG&W asked Silva to “accept this letter as our response to your request for debt validation.” Id. - Ex. C. The response included Silva’s account information, including her balance, date of her last payment, and attached copies of monthly account summaries (from May of 2007 to January 6, 2012). On May 27, 2014, LG&W filed suit on behalf of Citibank against Silva in the Hingham District court demanding $6002.39, plus interest on her outstanding credit card debt. The docket indicates that Silva was served with that Complaint on June 9, 2014.

Silva replied to LG&W’s validation letter on June 4, 2014, stating that she was “refusing for cause . . . [the] purport[ed] validat[ion of] a debt [because] this matter has been closed for over two years.” Id. - Ex. D at 2. She attached a “True Bill for $306, 000”, the amount Silva claimed LG&W owed her for its breach of several elements of her unilaterally-imposed contract. Id. at 3.

On July 29, 2014 Silva sent LG&W an “Intent to Sue, ” which it acknowledged on August 4, 2014. In its response, LG&W notified Silva that her claims were factually inaccurate and, under the FDCPA, time-barred. Silva followed on August 5, 2014 with another “Notice and Demand to Validate Debt Claim.” Id. - Ex. E. LG&W replied on August 7, 2014, that it had previously provided Silva validation on May 13, 2014. Notwithstanding, LG&W’s response included all of the previously provided, FDCPA-mandated information, including a duplication of the account statements “which show the balance accrual from $0 to the complaint balance of $6002.39.” Id. - Ex. G1 at 2.

On September 12, 2014, Silva provided LG&W a draft Complaint alleging FDCPA claims that she intended to file against it in federal court. LG&W responded on September 16, 2014, that the facts in Silva’s Complaint did not comport with Citibank’s file regarding her debt (pointing to the documentation that LG&W previously had provided to her). LG&W also refuted Silva’s assertion that it had bought her debt, stating that it was hired by Citibank “to handle the collection of an account which you allegedly owe to the bank.” Id. - Ex. I. Silva commenced her initial suit against LG&W in federal court on September 22, 2014. See 14-cv-13695-WGY. Judge Young ultimately dismissed the case on January 21, 2015, after denying Silva’s motion to proceed in forma pauperis, her subsequent motion for reconsideration, and her ensuing failure to pay the filing fee. Id. at Dkt. #9, #11. Silva filed this identical case on October 29, 2015. LG&W waived service and filed an Answer and Counterclaim on November 13, 2015, attaching 802 pages of exhibits chronicling the parties’ tug-of-war.

On March 4, 2016, Judge Heather Bradley of the Hingham District Court rendered a decision in the matter of Citibank, N.A. v. Christina Silva, Docket No. 1458-cv-307. See Dkt. #24 - Ex. A. After a three-day bench trial which commenced on July 30, 2015, and concluded on September 3, 2015, Judge Bradley found that Silva had breached her credit-card contract with Citibank (who, Judge Brady found, also had established a right of recovery under quantum meruit). While Silva testified that “she had disputed the debt since 2011 when she started receiving correspondence about the debt, ” Judge Bradley found Silva “failed to provide sufficient credible evidence to contest the existence of the agreement between the parties or the amount the plaintiff established that the defendant ...

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