Consumer's claims fail against Forster & Garbus, Esqs.

Long Island debt collection firm, Forster & Garbus, finds itself in the hot seat again in Federal court facing claims of Fair Debt Collection Practices Act (FDCPA) violations. Unfortunately, the plaintiff-debtor was misadvised and failed to put a decent case together after his third try. And he was represented!

The plaintiff-debtor claims that he was never properly served. But he bungled his complaint by alleging statements that were logically implausible. He failed to particularize to any "false, deceptive, or misleading representation." The plaintiff alleged that false statements were contained in the firm's affidavit of merit and non-military affidavit. The bank's witness attested to the debt itself -- not as to whether service was valid.

Since the plaintiff's FDCPA claims failed, so did his claim for defamation. To state a claim for defamation under New York law, the plaintiff must allege (1) a false statement about the plaintiff; (2) published to a third party without authorization or privilege; (3) through fault amounting to at least negligence or part of the publisher; (4) that either constitutes defamation per se or caused special damages. The plaintiff here did not identify a false statement that was capable of defamatory construction.

Gargiulo v. Forster & Garbus Esqs., 06 Civ. 2461 (September 1, 2009) SDNY, J. Miriam Goldman Cedarbaum

Categories: Debt Defense
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