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Elizarov v. Equity Experts LLC

United States District Court, E.D. Michigan, Southern Division

May 9, 2018


          Stephanie Dawkins Davis United States Magistrate Judge



         Plaintiff Yakov Elizarov brought this action against Defendant Equity Experts, LLC, alleging violations of both the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and the Michigan Regulation of Collection Practices Act, Mich. Comp. Laws § 445.251 et seq.

         Defendant purchased debt that Plaintiff incurred for failing to pay condominium assessments on a Waterford, Michigan unit that he ultimately lost to foreclosure. The specific conduct that Plaintiff challenges in this lawsuit is Defendant's filing of a collection action in the 51st Judicial District in Waterford, Michigan (where the condominium is located), rather than the 52nd Judicial District in Troy, Michigan (where certain relevant contracts were signed), or alternatively in a court in Maryland (where Plaintiff now resides). The 51st Judicial District and the 52nd Judicial District are both within Oakland County, Michigan, and relatively close to one another.

         Both parties have moved for summary judgment. For the reasons below, the Court will deny Plaintiff's Motion for Summary Judgment, and grant Defendant's Motion for Summary Judgment.

         I. BACKGROUND

         A. Factual Background

         Plaintiff incurred the alleged debt at the center of this lawsuit in connection with his ownership of a condominium unit (the “subject property”) in the Fountain Park South development in Waterford, Michigan.

         Fountain Park South was formally established pursuant to the Michigan Condominium Act, Mich. Comp. Laws § 559.101 et seq., with the execution of a Master Deed on March 28, 2006, and the recording of that Master Deed in Oakland County, Michigan on April 5, 2006. (Def.'s Resp. Ex. A, Master Deed.) The Master Deed provides, relevantly, on its first page that Fountain Park South is subject to

the covenants, conditions, restrictions, uses, limitations, and affirmative obligations set forth in this Master Deed and the Exhibits hereto, all of which shall be deemed to run with the land and shall be a burden and a benefit to the Developer, its successors and assigns, and any persons acquiring or owning an interest in the said real property, their grantees, successors, heirs, executors, administrators and assigns.

         (Master Deed at 2, Pg ID 181.)

         The Master Deed has two Exhibits: the by-laws of the Fountain Park South Condominium Association (the “Association”) (see Master Deed at 19-59, Pg ID 198-238); and a series of surveys and maps that together constitute the Condominium Subdivision Plan (see Master Deed at 60-67, Pg ID 239-246). Article II of the by-laws governs monetary assessments by the Association against unit owners. Specifically, Article II empowers the Association to levy (and requires unit owners to pay) annual assessments, and provides for the levying of both discretionary and unit-owner-approved assessments by the Association. Article II of the by-laws also provides that unpaid assessments shall constitute liens upon the units of delinquent unit owners, and authorizes various enforcement mechanisms including collection and lien foreclosure lawsuits. (See Id. at 19-23, Pg ID 198-202.)

         In February 2007, Plaintiff purchased the subject property by warranty deed. (ECF No. 15, Pl.'s Mot. Ex. 1, Warranty Deed.) The final clause of the warranty deed provides as follows:

Subject to easements, reservations and restrictions of record, and further subject to, [sic] this deed is given in fulfillment of a certain Land Contract dated 8/22/2006 between the parties hereto and is further subject to such encumbrances which may have attached or accrued since the date of said contract through the acts or ommissions [sic] of persons other than the grantors herein.

(Id. at 3, Pg ID 144.)

         Plaintiff financed the purchase with a $172, 475.00 loan from non-party Quicken Loans, Inc., which was secured by a mortgage on the condominium. The mortgage was recorded in Oakland County, Michigan on February 13, 2007. (ECF No. 21, Def.'s Resp. Ex. B, Mortgage.) The mortgage had several attachments, including a Condominium Rider which Plaintiff signed separately, and which provides that Plaintiff (identified in the Condominium Rider as “Borrower”)

shall perform all of Borrower's obligations under the Condominium Project's Constituent Documents. The "Constituent Documents" are the: (i) Declaration or any other document which creates the Condominium Project; (ii) by-laws; (iii) code of regulations; and (iv) other equivalent documents. Borrower shall promptly pay, when due, all dues and assessments imposed pursuant to the Constituent Documents.

(Id. at 23, Pg ID 269.)

         Plaintiff represents that in October 2009, he “left the State of Michigan and his Condominium [and] subsequently moved to Maryland where he maintains employment and residency.” (Pl.'s Mot. at 2, Pg ID 123.)

         On November 19, 2010, a lien was recorded against the subject property for nonpayment of assessments. The lien specified that the amount due to the Association was $770, “exclusive of interest, costs, attorney fees, and future assessments, which are also secured by this lien and must be paid in full to discharge the obligation.” (Def.'s Resp. Ex. C, Lien.) Plaintiff defaulted on his mortgage shortly thereafter, and after foreclosure proceedings, he relinquished the condominium pursuant to a sheriff's sale in December 2010. Approximately four years later, on December 11, 2015, the Association assigned to Defendant Equity Experts, LLC “all of [the] Association's right, title, interest, powers and options” in any unpaid sums owed by Plaintiff along with other unit owners, as well as any interest, collection and late charges, attorney fees, fines, and liens associated with the unpaid assessment. (Def.'s Resp. Ex. D, Assignment.)

         On March 4, 2016, Defendant initiated a collection action against Plaintiff in the 51st Judicial District Court in Waterford, Michigan, where the property was located. In connection with that action, Defendant sent a summons and complaint by certified mail to Plaintiff at his Maryland address. (Pl.'s Mot. Ex. 2, Summons and Complaint.) The complaint alleged that Plaintiff (named as the defendant in that action) failed to pay his “share of assessments, special assessments, fines, and late fees, ” and that the sum of his deficiency plus accrued interest was $1204.47. (Id. at 4-5, Pg ID 148-49.)

         On May 11, 2016, Defendant moved in the 51st Judicial District Court for a determination that Plaintiff had been served, representing in its motion that Plaintiff had informed Defendant's counsel of his receipt of the summons and complaint, and that Plaintiff rejected an initial settlement offer. (Pl.'s Mot. Ex. 3, Request for Special Consideration and Order Determining Proof of Service.)

         The foregoing is all that the record contains regarding the collection action, and there is no indication of how, when, or even whether the action was terminated.

         B. Procedural History

         Plaintiff filed the instant two-count lawsuit on September 12, 2016 (ECF No. 1, Compl.), alleging that Defendant's prosecution of the collection action in the 51st Judicial District, where the condo was located, rather than in a venue in his now-home state of Maryland violated both the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Michigan Regulation of Collection Practices Act (“MRCPA”), Mich. Comp. Laws § 445.251 et seq. The gravamen of Plaintiff's allegations is that even after Plaintiff notified Defendant's counsel that the assessments had already been paid, and despite Defendant's knowledge that Plaintiff no longer lived in Michigan, Defendant brought the collection action in an inconvenient forum in hopes of securing a default judgment against him.[1] Defendant answered the Complaint on October 5, 2016. (ECF No. 8, Answer.) Defendant denies that Plaintiff had paid the assessments. (Answer ¶ 11; ECF No. 21, Def.'s Resp. at Pg ID 169-70.) Plaintiff has provided no evidence that he paid the assessments.

         After the close of discovery, Plaintiff moved for summary judgment on May 1, 2017. (ECF No. 15, Pl.'s Mot.) Defendant filed a response brief on June 1, 2017 (ECF No. 21, Def.'s Resp.). Plaintiff did not file a reply brief.

         This Court held a hearing on Plaintiff's Motion for Summary Judgment on June 27, 2017. At that hearing, Defendant's counsel orally moved for summary judgment, and the Court permitted Plaintiff to file a brief in response to Defendant's oral motion. Plaintiff did so on July 13, 2017. (ECF No. 22, Pl.'s Resp.)


         Summary judgment is appropriate where the moving party demonstrates that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a). “A fact is ‘material' for purposes of a motion for summary judgment where proof of that fact ‘would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.'” Dekarske v. Fed. Exp. Corp., 294 F.R.D. 68, 77 (E.D. Mich. 2013) (Borman, J.) (quoting Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         “In deciding a motion for summary judgment, the court must draw all reasonable inferences in favor of the nonmoving party.” Perry v. Jaguar of Troy, 353 F.3d 510, 513 (6th Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). At the same time, the non-movant must produce enough evidence to allow a reasonable jury to find in his or her favor by a preponderance of the evidence, Anderson, 477 U.S. at 252, and “[t]he ‘mere possibility' of a factual dispute does not suffice to create a triable case.” Combs v. Int'l Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). Instead, “the non-moving party must be able to show sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy.” Arendale v. City of Memphis, 519 F.3d 587, 601 (6th Cir. 2008) (alterations in original) (quoting Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004)).

         When presented with cross-motions for summary judgment, the Court “must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the nonmoving party.” Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503, 506 (6th Cir. 2003). “The fact that the parties have filed cross motions for summary judgment does not automatically justify the conclusion that there are no facts in dispute.” Ely v. Dearborn Heights School Dist. No. 7, 150 F.Supp.3d 842, 849-50 (E.D. ...

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