Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT EVELINE GOINS v. JBC & ASSOCIATES, P.C. et al. CASE NO. 3:03CV 636 (JBA) (JGM) July 12, 2004

MEMORANDUM IN SUPPORT OF PLAINTIFF' S MOTION TO STRIKE DECLARATIONS Plaintiff moves to strike the declarations submitted in opposition to summary judgment by Brandon and Boyajian as improper under Fed. R. Civ. P. 56(e) in that they are conclusory or do not state admissible facts and for the reasons explained below: Boyajian ¶4, last two paragraphs are legal argument, improper in an affidavit. A witness is not permitted to present testimony in the form of legal conclusions. Hygh v. Jacobs, 961 F.2d 359, 363 (2d Cir. 1992); Daniels v. City of Binghamton, 946 F. Supp. 590, 594 (N.D.N.Y. 1996) (affidavit that consists of legal arguments inadmissible). (Plaintiff disputes and can disprove the assertion that the efforts were all part of an effort to collect on a single master file, since Mr. Boyajian'July 6 deposition admitted to the s contrary. However, this aspect is not material to her motion for summary judgment). Boyajian ¶ 5 after the first sentence should be stricken since, on its face, it refers to current procedures.1 Current procedures are irrelevant any bona fide error defense relating to defendant'communication with plaintiff in Feb. 2003. It is also vague and s conclusory: no mention of which codes " entered, who enters them, and whether and are" when they were entered in this case. Affidavits are inadmissible to the extent they contain assertions of ultimate fact without supporting factual specifics. Burlington Coat Factory
1

At his deposition of July 6, 2004, Boyajian testified that the procedures were not put into place until after the letter of Feb. 2003, at issue in this case.

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Warehouse Corp. v. Esprit de Corp., 969 F.2d 919, 922-23 (2d Cir. 1985); Randell v. United States, 64 F. 3d 101, 109 (2d Cir. 1995). Boyajian ¶ 6 to the extent it refers to a " hold" had been placed on plaintiff' that s account with no documentation that such a hold was entered, when, or by whom. Boyajian ¶ 6-7. Computers act the way they are programmed to act. A computer cannot generate an " unintended" letter. Paragraph 7 admits such by asserting that the cause of the letter was " imperfection in the computer program" an " an or inadvertent" creation of a merged account. Those characterizations ­ unintended, imperfection, inadvertent ­ not apply to computers which do what they are told to do. The do characterizations should be stricken as conclusory and without factual basis. As one court noted, defendant's proof is "evidence of the error itself," rather than evidence of procedures reasonably adapted to avoid the error. Sibley v. Firstcollect, Inc., 913 F. Supp. 469, 472 (M.D. La. 1995). Brandon Declaration ¶ 3, to the extent he contradicts earlier sworn statements and is estopped by his judicial admissions that he is a debt collector. A party cannot create an issue of fact by contradicting earlier sworn testimony. Buttry v. General Signal Corp., 68 F.3d 1488, 1493 (2d Cir. 1995); Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 289 (8th Cir. 1988); Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 706 (3d Cir. 1985). In his Answer in Goins v. Brandon, Civil No. 3:02CV 1537 (AVC), Brandon admits that he is a debt collector. Copy attached. In the sworn answer to discovery in this case, Interrogatory 3, defendants admit that Jack Boyajian and Marv Brandon were the persons involved in reviewing or drafting the form of letters sent in conjunction with the

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collection or plaintiff'alleged debt. Copy Attached. In the affidavit filed by defendants s in opposition to the motion for summary judgment in Goins v. JBC et al., Civil No. 3:02CV 1069 (MRK), Doc. No. 44, p. 27-28, defendants make the same assertion. Copy attached. Moreover, Brandon'Declaration is insufficient to establish that he is not a debt s collector. A debt collector is " person who uses any instrumentality of interstate any commerce or the mails in any business the principal purpose of which is the collection of any debts."15 U.S.C. § 1692a(6). That describes Mr. Brandon exactly. Alternatively, a debt collector is one who " regularly collects or attempts to collect, directly or indirectly, debts owed or asserted to be owed or due another." That is exactly what Mr. Brandon does. On the face of the FDCPA, there is no requirement of personal participation in any particular collection. Direct contact or interaction with the consumer is not an element of a violation of the FDCPA. Romine v. Diversified Collection Services, Inc., 155 F.3d 1142, 1149 (9th Cir. 1998). Indirect participation, such as by drafting the letter, is sufficient, as set forth in the plaintiff'Reply Memorandum. Moreover, the FDCPA s includes prohibitions of acts done " connection with" collection of debt. §1692c, in the including the deceptive use of any representations, means, or implications. § 1692e. Brandon ¶ 3 in which he opines as to the ultimate legal issue for the Court to decide: whether he is a debt collector. A witness is not permitted to present testimony in the form of legal conclusions. Hygh v. Jacobs, 961 F.2d 359, 363 (2d Cir. 1992); Daniels v. City of Binghamton, 946 F. Supp. 590, 594 (N.D.N.Y. 1996) (affidavit that consists of legal arguments inadmissible).

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CONCLUSION The Declarations of Boyajian and Brandon should be stricken. They do not comply with Rule 56 so as to interpose any effective opposition to summary judgment.

THE PLAINTIFF

BY__/s Joanne S. Faulkner___ JOANNE S. FAULKNER ct04137 123 Avon Street New Haven, CT 065l1 (203) 772-0395

This is to certify that the foregoing was mailed on July 12, 2004, postage prepaid, to: Jonathan D. Elliot Sabatino Fiano P. O. Box 763 Southport CT 06490 ______/s/ Joanne S. Faulkner_____ Joanne S. Faulkner

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