UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

CLAUDIA DEVITO, Civil Action No. 2:11-CV-03773 

(SDW/MCA) 

Plaintiff, 

v. ELECTRONICALLY FILED 

ZUCKER, GOLDBERG & ACKERMAN, 

LLC, 

Motion Return Date: June 18, 2012 

Defendant. 

MEMORANDUM OF LAW IN FURTHER SUPPORT OF DEFENDANT, 

ZUCKER, GOLDBERG & ACKERMAN, LLC’S MOTION TO DISMISS 

PLAINTIFF’S AMENDED COMPLAINT AND IN OPPOSITION TO 

PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY 

JUDGMENT 

Connell Foley LLP 

Attorneys for Defendant, 

Zucker, Goldberg & Ackerman, LLC 

85 Livingston Avenue 

Roseland, New Jersey 07068 

(973) 535-0500 

Of Counsel: 

Karen Painter Randall, Esq. 

On the Brief: 

Andrew C. Sayles, Esq. 

Steven A. Kroll, Esq. 

2720902-01 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 1 of 21 PageID: 301
TABLE OF CONTENTS 

PAGE 

PRELIMINARY STATEMENT .................................................................................................... 1 

RESPONSE TO PLAINTIFF’S STATEMENT OF MATERIAL FACTS NOT IN 

DISPUTE ........................................................................................................................................ 4 

LEGAL ARGUMENT.................................................................................................................... 6 

POINT I 

PLAINTIFF’S OPPOSITION FAILS TO ADDRESS ANY OF THE 

LEGAL ARGUMENTS CONTAINED IN ZGA’S MOTION TO DISIMSS 

PLAINTIFF’S AMENDED COMPLAINT, THUS, ANY OPPOSITION TO 

SAME SHOULD BE DEEMED WAIVED ........................................................................... 6 

POINT II 

PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY 

JUDGMENT SHOULD BE DENIED BECAUSE IT IS BASED SOLELY 

UPON THE INSUFFICIENT AND UNSUPPORTED ALLEGATIONS 

CONTAINED IN THE AMENDED COMPLAINT.............................................................. 8 

A. Legal Standard ................................................................................................................ 8 

B. Plaintiff Has Not Alleged Any Claim Against ZGA Under §1692g(a)(2) ..................... 9 

C. Plaintiff Has Not Alleged Any Claims Against ZGA Under §§1692e(5), 

 1692e(10), or 1692f ...................................................................................................... 12 

1. Plaintiff’s alleged claim under §1692e(5)................................................................. 12 

2. Plaintiff’s alleged claim under § 1692e(10).............................................................. 14 

3. Plaintiff’s alleged claim under § 1692f..................................................................... 15

D. The Granting of Partial Summary Judgment is Premature ........................................... 16 

CONCLUSION............................................................................................................................. 18 

2720902-01 

 i 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 2 of 21 PageID: 302
TABLE OF AUTHORITIES 

Cases

Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364 (3d Cir. 2011....................................... 9 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).................................................................. 8 

Brenner v. Twp. of Moorestown, No. 09-219, 2011 U.S. Dist. LEXIS 

52760, 2011 WL 1882394, at *11 (D.N.J. May 17, 2011)......................................................... 6 

Brown v. Card Serv. Ctr., 464 F.3d 450 (3d Cir. 2006) ............................................................... 10 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................... 8 

Doe v. Abington Friends School, 480 F.3d 252 (3d Cir. 2007).................................................... 16 

Egersheim v. Gaud, No. 07-5116, 2012 U.S. Dist. LEXIS 8104 at *8 

(D.N.J. Jan. 24, 2012) ................................................................................................................. 6 

Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991).............................................................. 10 

Hancock Indus. v. Schaeffer, 811 F.2d 225 (3d Cir. 1987) ............................................................ 8 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 

S. Ct. 1348, 89 L. Ed. 2d 538 (1986).......................................................................................... 8 

Oppong v. First Union Mortgage Corporation, 326 Fed. App. 663 (3d Cir. 

2009) ......................................................................................................................................... 10 

Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231 (3d Cir. 1995) ................................................... 8 

Rosenau v. Unifund Corp., 539 F.3d 218 (3d. Cir. 2008) ............................................................ 10 

U.S. Bank N.A. v. Guillaume, 209 N.J. 449 (2012) ..................................................................... 14 

Wilson v. Quadramed Corp., 225 F.3d 350 (3d Cir. 2000) .......................................................... 10 

Statutes

Fair Debt Collection Practices Act, 15 U.S.C. § 1692.................................................................... 1 

Rules

FED. R. CIV. P. 56 (2012).............................................................................................................. 8 

Fed. R. Civ. P. 12(b)(6)................................................................................................................... 1 

2720902-01 

 ii 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 3 of 21 PageID: 303
PRELIMINARY STATEMENT

In an attempt to circumvent her clear and unambiguous home loan obligations, Plaintiff, 

Claudia Devito (“Plaintiff”) alleges that conduct taken by Defendant Zucker Goldberg & 

Ackerman, LLC (“ZGA”) on behalf of the secured lender and in accordance with applicable 

New Jersey law violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.

(“FDCPA”). Despite being permitted the “opportunity...to amend her claim so that it is not 

futile”, Plaintiff’s Amended Complaint has done nothing to lend any support to any claim under 

the FDCPA, or provide any new factual allegations surrounding this case. As an initial matter, 

Plaintiff’s Opposition to ZGA’s Motion to Dismiss, found at Point II of her Memorandum Law, 

merely states the legal standard for granting a Motion to Dismiss, pursuant to Fed. R. Civ. P. 

12(b)(6), without addressing any of the case law and legal arguments raised in ZGA’s original 

moving papers. Therefore, any opposition to same should be deemed waived, and ZGA’s 

Motion should be considered as unopposed. To the extent the Court considers Plaintiff’s two (2) 

page Opposition to be sufficient, similar to her Amended Complaint, it merely offers labels, 

conclusions and a formulaic recitation of the elements for a violation under the FDCPA without 

anything more. Thus, because Plaintiff’s Amended Complaint has now failed for a second time 

to plead a sufficient cause of action for a violation of the FDCPA against ZGA, it should be 

dismissed with prejudice. 

Despite Plaintiff’s inability to plead a sufficient cause of action under the FDCPA against 

ZGA, she has now decided to move for Partial Summary Judgment as to liability relying entirely 

upon said inadequate pleadings. When taking the baseless allegations in Plaintiff’s Amended 

Complaint, in conjunction with viewing all of the facts in light most favorable to the ZGA, 

giving them the benefit of all reasonable inferences, it is apparent that Plaintiff has not 

established that she is entitle to Partial Summary Judgment, let alone the survival of her own 

2720902-01 

 1 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 4 of 21 PageID: 304
Amended Complaint. With regard to any alleged violation under § 1692g(a)(2), Plaintiff does 

not and cannot dispute that she was aware of the name of the creditor to whom the debt was 

owed, or that she was confused, deceived or misled by the July 2, 2010 Notice of Intention to 

Foreclose (“NOI”) sent by ZGA. In fact, her own correspondence disputing the debt confirmed 

that she was adequately informed of the creditor as she specifically identified the creditor by 

name. See Amended Complaint, Ex. B. Thus, even applying the “least sophisticated consumer” 

standard, there is no dispute that Plaintiff was on notice of the creditor’s identity, or that she was 

somehow confused, deceived, or misled by the NOI, necessary allegations for her FDCPA claim. 

This is further evidenced by Plaintiff’s failure to submit an affidavit with her Cross-Motion for 

Partial Summary Judgment affirming to same. 

With regard to the remaining alleged violations of the FDCPA, once again Partial 

Summary Judgment is also inappropriate, and, in fact, further demonstrates why Plaintiff’s 

Amended Complaint fails to state a claim upon which relief can be granted. Plaintiff clumps the 

remaining violations (15 U.S.C. § 1692e(5), 15 U.S.C. § 1692e(10), and 15 U.S.C. § 1692f) into 

one point heading, approximately two (2) pages long, and merely restates the allegations 

contained in her Amended Complaint without citing to any case law or facts to support said 

claims. More importantly, as mentioned above, Plaintiff has failed to address any of the 

arguments raised in ZGA’s initial moving papers regarding why the alleged violation of the 

aforementioned sections of the FDCPA should be dismissed. Therefore, any opposition to 

dismissing these claims should be deemed waived and unopposed. 

Lastly, it must be noted that Plaintiff has provided no affidavit in support of the motion 

for partial summary judgment and relies on a non-verified pleading and references to exhibits 

that have not been established or confirmed as a basis for her claim for relief. Accordingly, 

2720902-01 

 2 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 5 of 21 PageID: 305
setting aside the deficient arguments concerning her dispositive motion, Plaintiff has not 

provided any reliable or admissible documents sufficient to support or warrant summary 

judgment. 

In sum, Plaintiff has now had the benefit of a second opportunity to amend her Complaint 

from being futile. Moreover, Plaintiff has had the luxury of having her initial Complaint’s 

defects and weakness pointed out to her by ZGA’s first Motion to Dismiss. Despite same, 

Plaintiff still cannot plead a sufficient cause of action under any provision of the FDCPA against 

ZGA. Rather than attempt to oppose any of the sound legal arguments raised by ZGA in their 

initial moving papers, Plaintiff has decided to waste both the parties and the Court’s time by 

filing a Cross-Motion for Partial Summary Judgment, which merely parrots her Amended 

Complaint. This is despite the fact that ZGA has moved to dismiss in lieu of an Answer and 

despite the fact that no discovery whatsoever has been conducted to support Plaintiff’s 

dispositive application. Even assuming, arguendo, that ZGA’s Motion to Dismiss the Amended 

Complaint was denied, filing a Cross-Motion for Summary Judgment at this juncture is clearly 

premature. At the very least the parties would need to engage in discovery to demonstrate that 

Plaintiff was aware of the identity of her creditor, and not misled, confused or deceived by the 

NOI sent by ZGA. 

 

 

2720902-01 

 3 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 6 of 21 PageID: 306
RESPONSE TO PLAINTIFF’S STATEMENT OF MATERIAL FACTS NOT IN 

DISPUTE

For the sake of brevity, ZGA hereby adopts and incorporates by reference herein the 

Statement of Facts and Declaration of Andrew C. Sayles, Esq. (“Sayles Decl.”) and all Exhibits 

annexed to and referenced in ZGA’s Motion to Dismiss Plaintiff’s Amended Complaint. ZGA 

responds to Plaintiff’s Statement of Material Facts Not in Dispute as follows: 

1. Admit 

2. Deny. The NOI provided an outstanding amount owed and a specific loan 

number - information that allowed Plaintiff to identify the name of the creditor to 

whom the debt was owed as evidenced by her July 23, 2010 letter to ZGA 

wherein she identified name of the creditor as Saxon. 

3. Deny. The July 2, 2010 Notice of Intention to Foreclose (“NOI”) provided an 

outstanding amount owed and a specific loan number - information that allowed 

Plaintiff to identify the name of the credit to whom the debt was owed as 

evidenced by her July 23, 2010 letter to ZGA wherein she identified name of the 

creditor as Saxon. 

4. Deny. This is an allegation contained in Plaintiff’s Amended Complaint, which 

has not been proven. 

5. Deny. The Hon. Susan D. Wigenton, U.S.D.J.’s February 29, 2012 Order and 

Decision denied ZGA’s Motion to Dismiss without prejudice. Judge Wigenton’s 

Decision made no findings of facts or legal determinations other than permitting 

Plaintiff the “opportunity...to amend her claim so that it is not futile.” See

ZGA’s Motion to Dismiss Amended Complaint; Sayles Decl., Ex. C at 6. 

6. Admit. 

2720902-01 

 4 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 7 of 21 PageID: 307
7. Admit. 

8. Deny. This is an allegation contained in Plaintiff’s Amended Complaint, which 

has not been proven. 

9. Deny. This is an allegation contained in Plaintiff’s Amended Complaint, which 

has not been proven. 

10. Deny. This is an allegation contained in Plaintiff’s Amended Complaint, which 

has not been proven. 

 

2720902-01 

 5 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 8 of 21 PageID: 308
LEGAL ARGUMENT

POINT I

PLAINTIFF’S OPPOSITION FAILS TO ADDRESS ANY OF 

THE LEGAL ARGUMENTS CONTAINED IN ZGA’S 

MOTION TO DISIMSS PLAINTIFF’S AMENDED 

COMPLAINT, THUS, ANY OPPOSITION TO SAME 

SHOULD BE DEEMED WAIVED 

Plaintiff’s Opposition to ZGA’s Motion to Dismiss is found at Point II of her 

Memorandum of Law. A review of Plaintiff’s Opposition shows that it clearly fails to address 

any of the legal arguments raised by ZGA in its initial moving papers, and, thus, any opposition 

to same should be deemed waived. See Brenner v. Twp. of Moorestown, No. 09-219, 2011 U.S. 

Dist. LEXIS 52760, 2011 WL 1882394, at *11 (D.N.J. May 17, 2011) (recognizing that a party's 

"failure to respond to" the opposing party's arguments on summary judgment "constitutes an 

abandonment of these cause of action and essentially acts as a waiver of these issues.") (citations 

and internal quotations omitted); See Egersheim v. Gaud, No. 07-5116, 2012 U.S. Dist. LEXIS 

8104 at *8 (D.N.J. Jan. 24, 2012) (“Plaintiffs' failure to oppose Defendants' legal arguments must 

be construed as a concession regarding Defendants' arguments of law”). In fact, Plaintiff’s 

Opposition spends the majority of its two (2) paragraphs discussing the legal standard for 

granting a Motion to Dismiss, pursuant to Fed. R. Civ. P. 12(b)(6). While ZGA does not dispute 

the legal standard cited by Plaintiff, it is evident that Plaintiff’s Opposition does nothing more 

than take said standard and argue, without addressing any of the sound arguments contained in 

ZGA’s initial moving papers, that Plaintiff’s Amended Complaint has fulfilled same. Therefore, 

this should constitute an abandonment of her claims and essentially act as of waiver on these 

issues. 

A review of Plaintiff’s Opposition shows that it contains only the following unavailing 

and unsupported arguments: 

2720902-01 

 6 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 9 of 21 PageID: 309
• “The allegations provided in the amended complaint raise Plaintiff’s 

right to relief above the speculative legal necessary to avoid dismissal” 

• “The amended Complaint does more than just merely recite or list the 

statutory elements. It applies the required elements for a violation to 

the facts of the case.” 

• “In addition, specific subsections of the violation are given, and the 

offending communication is attached.” 

• “The offending communicating’s lack of compliance with the statutory 

requirement is clear and is referred to in the amended Complaint.” 

 [Plaintiff’s Memorandum of Law in Support of Cross-Motion at 13.] 

As one can see, Plaintiff has provided no factual basis, has not identified allegations 

within her pleading and has not identified any case law to support any of the claims raised in the 

Amended Complaint. Moreover, what is still not “clear” is how the single communication sent 

by ZGA to Plaintiff, via the NOI, violated the FDCPA or any other applicable law. As set forth 

in ZGA’s initial moving papers and discussed in greater detail in Point II of this Brief, the 

Amended Complaint, and now Plaintiff’s Opposition, amounts to nothing more than a formulaic 

recitation of the partial elements of certain causes of action, composed of labels and conclusions 

which fail to properly identify the grounds for Plaintiff’s entitlement to the relief sought. 

Plaintiff’s Amended Complaint, therefore, fails to allege any facts that would support claims 

against ZGA under the FDCPA, and should be dismissed, pursuant to Fed. R. Civ. P. 12(b)(6). 

2720902-01 

 7 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 10 of 21 PageID: 310
POINT II 

PLAINTIFF’S CROSS-MOTION FOR PARTIAL 

SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE 

IT IS BASED SOLELY UPON THE INSUFFICIENT AND 

UNSUPPORTED ALLEGATIONS CONTAINED IN THE 

AMENDED COMPLAINT. 

A. Legal Standard 

A court should grant summary judgment under Federal Rule of Civil Procedure 56(c) 

only if the record, “including depositions, documents, electronically stored information, 

affidavits or declarations, stipulations, . . . admissions, interrogatory answers, or other materials” 

shows that there is no genuine dispute as to any material fact, and the movant is entitled to 

judgment as a matter of law. FED. R. CIV. P. 56 (2012). The moving party bears the initial 

burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 

317, 323 (1986). Once this showing is made, the burden shifts to the nonmoving party, who 

must set forth specific facts and make an affirmative showing that a genuine issue of material 

fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether 

triable issues of fact exist, the Court must view the underlying facts and draw all reasonable 

inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Pennsylvania Coal Ass'n v. 

Babbitt, 63 F.3d 231, 236 (3d Cir. 1995); Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d 

Cir. 1987). 

Furthermore, when determining whether an issue is “genuine,” the court looks at whether 

“it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving 

party’s favor.” Anderson, supra, 477 U.S. at 248. A fact is considered “material” “if, under the 

governing substantive law, a dispute about the fact might affect the outcome of the suit.” Id. In 

2720902-01 

 8 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 11 of 21 PageID: 311
considering a motion for summary judgment, a district court may not make credibility 

determinations or engage in any weighing of the evidence; instead, the non-moving party’s 

evidence is to be believed and all justifiable inferences are to be drawn in his favor. Anderson, 

supra, 477 U.S. at 255. 

In the case at bar, the only document on the record before the Court is the unverified 

Amended Complaint and unauthenticated attached Exhibits. For the reasons discussed below, 

taking the baseless and conclusory allegations contained in Plaintiff’s Amended Complaint, in 

conjunction with viewing all of the facts in a light most favorable to the ZGA, giving them the 

benefit of all reasonable inferences, Plaintiff cannot established that she is entitle to Partial 

Summary Judgment as to liability, let alone the survival of her own Amended Complaint. 

B. Plaintiff Has Not Alleged Any Claim Against ZGA Under 

§1692g(a)(2) 

Plaintiff’s Cross-Motion for Partial Summary Judgment argues that the FDCPA is 

applied as a strict liability statute, therefore, ZGA’s failure to expressly state the name of the 

creditor to whom the debt was owed in the NOI constitutes a violation of 1692g(a)(2). However, 

while the FDCPA is often applied as a strict liability statute, nowhere within its confines does the 

legislation expressly state that it is a strict liability statute. Rather, courts have interpreted certain 

provisions within the FDCPA to apply strictly. For example, the Third Circuit recently found 

that a claim involving section 1692f(1), prohibiting attempts to collect amounts not authorized by 

law or agreement, shall be applied strictly without regard to the recipients confusion. See Allen 

ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 368 (3d Cir. 2011). Section 1692g(a)(2) 

requires a debt collector to provide information to a debtor that would, among other things, allow 

her to identify the amount owed and the creditor and, therefore, requires consideration of the 

subject communication and the debtor’s circumstances to determine whether she was confused, 

2720902-01 

 9 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 12 of 21 PageID: 312
deceived or misled. Unlike provisions such as § 1692f(1)1

, which focuses on the conduct of the 

debt collector and are therefore applied without regard to the debtor, section 1692g(a)(2) focuses 

on both conduct by the debt collector and the debtor. See Graziano v. Harrison, 950 F.2d 107, 

111 (3d Cir. 1991) (holding that claims involving statutory notice under the FDCPA must be 

interpreted under the least sophisticated consumer standard). 

Congress enacted the FDCPA to eliminate abusive, deceptive, and unfair debt collection 

practices by ensuring that debt collectors provide consumers with timely and adequate notice of 

their legal rights. Wilson v. Quadramed Corp., 225 F.3d 350, 354 (3d Cir. 2000) (emphasis 

added). Moreover, any claim under the FDCPA is judged from the “least sophisticated 

consumer” standard. Although this is a low standard, it nonetheless “prevents liability for 

bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of 

reasonableness and presuming a basic level of understanding and willingness to read with care.” 

Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d. Cir. 2008), quoting, Wilson v. Quadramed 

Corp., supra, 225 F.3d at 335. Further, only where a communication or conduct by a debt 

collector would deceive, mislead or confuse a “least sophisticated consumer” can a violation of 

the FDCPA exist. Brown v. Card Serv. Ctr., 464 F.3d 450, 453-454 (3d Cir. 2006). When the 

validation notice is straightforward, and not confusing or misleading, it satisfies the objective of 

the “least sophisticated consumer” standard. See Oppong v. First Union Mortgage Corporation, 

326 Fed. App. 663, 666 (3d Cir. 2009). 

Here, Plaintiff’s Amended Complaint does not allege that Plaintiff did not receive 

adequate notice of her legal rights in connection with the NOI, which is the focus of the 

 

1

 Section 1692f(1) focuses entirely on whether the debt collector collected an amount not 

authorized by law or agreement. There is no subjective component to this assessment which 

would require an assessment of confusion by a debtor. 

2720902-01 

 10 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 13 of 21 PageID: 313
FDCPA’s notice requirement. See Graziano, 950 F.2d at 111 (noting that “statutory notice must 

not only explicate a debtor’s rights; it must do se effectively”). Rather, without any claim that 

she was confused as to her rights, Plaintiff instead argues only that because the name of the 

creditor was not expressly stated in the NOI, ZGA violated the FDCPA’s notice provisions. 

However, as her own pleading confirms, Plaintiff, even as a least sophisticated consumer, was 

clearly aware of the identity of the lender. Attachments to Plaintiff’s Amended Complaint 

reflect that she did in fact know the identity of the lender and creditor at issue upon receipt of the 

NOI. In Plaintiff’s July 23, 2010 letter to ZGA she states that she “dispute[s] the amount Saxon

claims I owe on loan # [redacted].” See Amended Complaint, Ex. B (emphasis added). This 

letter not only identifies the lender, Saxon, but further indicates that Plaintiff does not dispute 

that a debt is owed, only the “amount” allegedly owed. That amount was expressly identified in 

ZGA’s NOI. Additionally, it should be noted that the NOI provided an outstanding amount 

owed and a specific loan number - unique information that certainly allowed for Plaintiff to 

determine whether the debt in question was her debt. See ZGA’s Motion to Dismiss the 

Amended Complaint; Sayles Decl., Ex. B. While Plaintiff has conveniently redacted the July 

23, 2010 letter to ZGA to omit its loan number, the fact that she identified the lender by name in 

her letter demonstrates that she was provided with sufficient information to allow her to ascertain 

the identify of the lender. 

Furthermore, what is even more telling is that there is no affidavit submitted by the 

Plaintiff herself in support of her Cross-Motion for Partial Summary Judgment affirming to the 

fact that she could not identify the lender, or that she was somehow misled, confused, or 

deceived by the NOI. Thus, the only evidence to support this assertion is the unverified, 

conclusory allegations contained in Plaintiff’s Amended Complaint. Therefore, even when 

2720902-01 

 11 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 14 of 21 PageID: 314
applying the “least sophisticated consumer” standard, there is no dispute that ZGA’s NOI 

provided sufficient information to Plaintiff such that she was aware of the creditor’s identity 

upon receipt of the communication, and because Plaintiff has failed to allege any confusion, 

deceit, or being misled by the NOI, Plaintiff’s Amended Complaint cannot sustain any claim 

against ZGA under §1692g(a)(2), let alone Partial Summary Judgment. See Graziano, 950 F.2d 

at 111. 

C. Plaintiff Has Not Alleged Any Claims Against ZGA Under 

§§1692e(5), 1692e(10), or 1692f 

As mentioned above, Plaintiff’s Cross-Motion for Partial Summary Judgment fails to 

address any of the well-reasoned legal arguments cited in ZGA’s initial moving papers with 

regard to a dismissal of the claims under §§ 1692e(5), 1692e(10), and 1692f. Therefore, as an 

initial mater, any opposition to the dismissal of the aforementioned claims should be deemed 

waived. Even assuming, arguendo, that the brief and unavailing arguments raised in Point I, B 

of Plaintiff’s request for Partial Summary Judgment constitute a sufficient opposition, same still 

fails to show how ZGA violated any of the above provisions of the FDCPA. 

1. Plaintiff’s alleged claim under §1692e(5) 

With regard to § 1692e(5), Plaintiff improperly and without legal justification construes 

the issuance of the NOI as a threat to take legal action which ZGA never intended to take, in 

violation of section 1692e(5). These claims ignore that the NOI is a notice that must be issued 

under existing New Jersey law. Specifically, the NOI exists as a procedural condition precedent 

to the filing of any foreclosure action in New Jersey. Among its intended purposes is to allow a 

debtor to take steps to prevent or avoid foreclosure. To allow Plaintiff to now maintain a claim 

under section 1692e(5) because a foreclosure action has not been commenced after issuance of 

the NOI would effectively amount to a finding that New Jersey’s Fair Foreclosure Act (“FFA”) 

2720902-01 

 12 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 15 of 21 PageID: 315
and its corresponding NOI requirements under N.J.S.A. 2A:50-56(c) constitute a violation of 

§1692e(5). 

Plaintiff alleges that ZGA violated § 1692e(5), which prohibits “the threat to take any 

action that cannot legally be taken or that is not intended to be taken,” by issuing the NOI and 

subsequently failing to foreclose. See Amended Complaint, ¶ 21. In an empty attempt to plead 

the lack of intent by ZGA sufficient to violate section 1692e(5), Plaintiff argues that the NOI was 

not in strict compliance with the FFA, which would have precluded the filing of any foreclosure 

complaint, that ZGA new of such alleged deficiencies and therefore knew that it would not be 

able to commence a foreclosure action. Id. at ¶¶26-28. However, Plaintiff does not dispute that 

she is in default on the subject mortgage and loan, or that a foreclosure action could have been 

legally taken. Moreover, even if the NOI were deficient in some nature, an issue that ZGA 

disputes, New Jersey case law is clear that any such deficiency would not preclude the filing of a 

foreclosure action. 

Other than insisting that ZGA threatened to take action they did not intend to take, neither 

Plaintiff’s Amended Complaint or her Cross-Motion has addressed any of the following 

arguments: First, Plaintiff does not dispute that the NOI generated by ZGA was issued pursuant 

to New Jersey’s FFA. Second, Plaintiff does not explain how the absence of a foreclosure action 

commenced against her equates to ZGA threatening to take conduct that was never intended to 

take. Third, Plaintiff suggests that a foreclosure would not be advisable because the NOI failed 

to comply with New Jersey’s FFA, and, therefore, ZGA knew or should have known it was 

deficient and could not foreclose. See Amended Complaint, ¶¶26-28. Even assuming, 

arguendo, that ZGA did not strictly comply with the NOI, such deficiencies do not preclude the 

commencement of a foreclosure action based upon a non-compliant NOI. As stated in our initial 

2720902-01 

 13 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 16 of 21 PageID: 316
brief, New Jersey’s Supreme Court recently clarified that where a NOI did not comply with the 

FFA, any resulting consequences and available remedies are to be addressed by the trial court 

presiding over the foreclosure proceeding once it is filed. See U.S. Bank N.A. v. Guillaume, 209 

N.J. 449 (2012). Fourth, Plaintiff does not dispute that the foregoing argument ignores that the 

fact that the plain language of the NOI does not support Plaintiff’s section 1692e(5) claim. The 

NOI itself says that ZGA “may start foreclosure proceedings” if the mortgage is not current and 

offers Plaintiff an opportunity to cure default to head off such measures. See Amended 

Complaint, Ex. A. (emphasis added). At no point does the NOI indicate that future litigation is 

impending and unavoidable. Rather, the NOI contains statutorily mandated language as to the 

consequences of a debtor’s default on a secured loan. Lastly, Plaintiff cannot dispute the time 

period in which a foreclosure complaint could be commenced and there is no case law allowing 

claims under section 1692e(5) for failure to proceed with a foreclosure complaint after issuance 

of a NOI. 

Therefore, Plaintiff’s Amended Complaint cannot sustain a claims under § 1692e(5), let 

alone Partial Summary Judgment. 

2. Plaintiff’s alleged claim under § 1692e(10) 

Plaintiff seeks Partial Summary Judgment for a violation of § 1692e(10). However, as 

mentioned in our initial moving papers, Paragraph 29 of the Amended Complaint simply alleges 

that ZGA violated § 1692e(10) of the FDCPA without any effort to allege or identify facts to 

support such a claim. While the Amended Complaint alleges that the NOI was non-compliant 

with the FFA, it does not allege at any point that the NOI falsely represented information 

concerning the debt or otherwise deceived Plaintiff. In fact, the Amended Complaint is 

completely silent with respect to Plaintiff’s default on the subject debt, including an absence of 

any denial by Plaintiff that she was in default, or that the amount identified by ZGA was not 

2720902-01 

 14 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 17 of 21 PageID: 317
accurate. Thus, although she alleges non-compliance with the FFA, Plaintiff has not alleged any 

misrepresentation or deceptive act by ZGA associated with the NOI.2

 Furthermore, Plaintiff has 

submitted no affirmation to support these claims. Without such allegations, Plaintiff cannot 

sustain a claims under § 1692e(10), let alone Partial Summary Judgment. 

3. Plaintiff’s alleged claim under § 1692f 

Similar to Paragraph 29 of the Amended Complaint, Paragraph 30 merely asserts that 

ZGA violated § 1692f of the FDCPA without any effort to allege or identify facts to support such 

claims. Section 1692f of the FDCPA is entitled “Unfair Practices” and prohibits the use of 

“unfair or unconscionable means to collect or attempt to collect a debt”. See 15 U.S.C. § 1692f. 

Although admittedly not an exhaustive list, section 1692f identifies eight (8) examples of 

conduct that falls within the concept of “unfair” and “unconscionable”. Applying the eight (8) 

examples to the case at bar, the Amended Complaint does not allege: (1) that ZGA collected an 

amount not authorized by law; (2,3,4) any misconduct concerning post-dated checks; (5) that 

ZGA caused Plaintiff to incur undue costs for communications; (6) that ZGA took or threatened 

to take non-judicial action concerning her property; (7) that ZGA otherwise improperly 

communicated with Plaintiff by post card; or (8) that ZGA used any language or symbol on the 

envelope when communicating with Plaintiff by mail. See 15 U.S.C. § 1692f(1)-(8). 

Such conduct composes what Congress deems to be violations of § 1692f. Here, 

Plaintiff’s Amended Complaint, and now Cross-Motion for Partial Summary Judgment, is 

wholly devoid of any corresponding allegation or effort to describe how ZGA’s issuance of the 

NOI fell within the class of unfair or unconscionable activities described above. The only 

allegation as to this claim is that ZGA violated section 1692f by “sending to Plaintiff a deficient 

 

2

 To the extent she relies upon the same logic concerning her claims under section 1692e(5), 

those arguments fail for the reasons addressed above. 

2720902-01 

 15 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 18 of 21 PageID: 318
[NOI], which fails to strictly comply with [the FFA]”. See Amended Complaint, ¶30; Plaintiff’s 

Memorandum of Law in Support of Cross-Motion at 10. This is the exact sort of pleading 

practice prohibited by Fed. R. Civ. P. 12(b)(6). Plaintiff has simply identified a provision of the 

FDCPA and alleged that ZGA violated same without any effort to explain how ZGA’s conduct 

constituted an actual violation of § 1692f.3

 The mere recitation of elements and legal 

conclusions without actual explanation and details is insufficient to avoid dismissal for failure to 

state a claim under § 1692f, let alone Partial Summary Judgment. 

D. The Granting of Partial Summary Judgment is Premature 

“[B]y its very nature, the summary judgment process presupposes the existence of an 

adequate record.” Doe v. Abington Friends School, 480 F.3d 252, 257 (3d Cir. 2007). As the 

Supreme Court explained, “Rule 56(c) mandates the entry of summary judgment, after adequate 

time for discovery and upon motion, against a party who fails to make a showing sufficient to 

establish the existence of an element essential to that party’s case, and on which that party will 

bear the burden of proof at trial.” Celotex, supra, 477 U.S. at 322 (emphasis added). Therefore, 

“[i]f discovery is incomplete in any way material to a pending summary judgment motion, a 

district court is justified in not granting the Motion. Abington, supra, 480 F.3d at 257. 

Here, as discussed at length above and in ZGA’s initial moving papers, Plaintiff’s 

Amended Complaint fails to state a claim upon which relief can be granted as to any of the 

claimed violations of the FDCPA against ZGA. As ZGA’s application is properly limited to the 

pleadings, dispositive relief is appropriate at this time. Conversely, as it relates to Plaintiff’s 

cross-motion for summary judgment, and assuming, arguendo, that the Court finds the Amended 

Complaint to be sufficiently plead, ZGA should be afforded the opportunity to perform discovery 

 

3

 This is not merely a stylistic component of the pleadings either as Plaintiff identified specific 

subsections of other provisions of the FDCPA - §§ 1692g(a)(2), 1692e(5), 1692e(10) - which 

she alleges ZGA violated. 

2720902-01 

 16 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 19 of 21 PageID: 319
on Plaintiff, including Plaintiff’s ability to discern the identity of creditor and whether she was 

actually confused, misled, or deceived by the NOI sent by ZGA. Of note, glaringly missing from 

Plaintiff’s Cross-Motion for Partial Summary Judgment is a sworn affidavit submitted by 

Plaintiff to said effect. In fact, as mentioned above, the only record before the Court contains the 

baseless and meritless allegations in Plaintiff’s unverified Amended Complaint and the 

unauthenticated Exhibits attached thereto. Moreover, while for purposes of the Motion to 

Dismiss only, ZGA agreed that they received Plaintiff’s response to the NOI, in the event that 

ZGA’s Motion is denied this is also an issue of fact that must be proven.4 Therefore, Plaintiff’s 

Cross-Motion for Partial Summary Judgment as to liability should be denied. 

 

4

 See ZGA’s Initial Brief, p. 5, footnote 3. 

2720902-01 

 17 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 20 of 21 PageID: 320
2720902-01 

 18 

CONCLUSION

For all of the foregoing reasons, Defendant, Zucker Goldberg & Ackerman, LLC’s 

Motion to Dismiss should be granted and Plaintiff’s Amended Complaint should be dismissed 

with prejudice against Zucker, Goldberg & Ackerman, LLC. In addition, Plaintiff’s CrossMotion for Partial Summary Judgment should be denied in its entirety. 

CONNELL FOLEY LLP 

Attorneys for Defendant, 

Zucker, Goldberg & Ackerman, LLC 

BY: /s/ Andrew C. Sayles 

Andrew C. Sayles, Esq. 

DATE: June 11, 2012 

Case 2:11-cv-03773-SDW-MCA Document 22 Filed 06/11/12 Page 21 of 21 PageID: 321