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Nitzkin v. Craig

Court of Appeals of Michigan

June 21, 2018

GARY D. NITZKIN, Plaintiff-Appellant,

          Oakland Circuit Court LC No. 2016-155993-AV

          Before: Beckering, P.J., and M. J. Kelly and O'Brien, JJ.

          PER CURIAM.

         Plaintiff, Gary Nitzkin, appeals by leave granted[1] the circuit court's order affirming the district court's orders granting summary disposition in favor of defendants, Guardian Alarm Company of Michigan and Robert Craig, also known as Law Offices of Robert M. Craig & Associates. For the reasons stated in this opinion, we reverse and remand for further proceedings.

         I. BASIC FACTS

         In October 2015, Nitzkin received a collection letter with the letterhead of the "Law Offices of Robert M. Craig & Associates." The letter indicated that he owed Guardian $25.16, and it stated:

My client, Guardian Alarm Company, has turned the above account over to me for collection. Unless the validity of this debt is disputed in writing within thirty (30) days of receipt of this notice, this debt will be assumed to be valid by Guardian Alarm.
If this debt is disputed; or any portion thereof, you may receive a verification of the debt or a copy of any court judgment against you by notifying the undersigned in writing at the above address of the disputed amount and requesting a verification of the debt.
If the debt is owed to a creditor different than the original creditor, you may obtain the name and address of the original creditor by making a written request within thirty (30) days of receipt of this notification.
Certainly, you can see the benefit of settling this dispute in an amicable manner. We do not feel it was your intention to allow this matter to escalate to the current situation. Let's work together to resolve this matter to everyone's satisfaction.
This letter is being sent to you with the intent to collect a debt. Any information obtained will be used for that purpose.

         The letter was purportedly written by "Joan Green," who was identified on the letter as a legal assistant.

         Nitzkin, a debt-collection lawyer, believed that the letter was sent in violation of the Fair Debt Collection Practices Act (FDCPA), 15 USC 1692 et seq., and he filed a complaint against Guardian, Craig, [2] and Green[3] alleging several violations of the Act. Following discovery, Guardian moved for summary disposition under MCR 2.116(C)(8) and MCR 2.116(C)(10), asserting that because it was not a "debt collector" as that term is defined by the FDCPA, it was not subject to the requirements of the FDCPA. Craig also moved for summary disposition. Like Guardian, he asserted that he was not a "debt collector," so he could not violate the FDCPA. Alternatively, he contended that even if he had violated the FDCPA, his violation was excused under the Act's "bona fide error" provision. The district court granted Guardian's motion for summary disposition, concluding that Guardian was a creditor, not a debt collector. And, although it concluded that Craig was a debt collector, the court stated that any violation of the FDCPA was excused because there was no genuine issue of material fact with regard to whether the bona fide error defense was applicable. Nitzkin appealed to the circuit court, which affirmed the district court and dismissed Nitzkin's appeal.



         Nitzkin first argues that the circuit court applied the wrong standard of review when it evaluated his appeal. Whether a court applied the correct standard of review is a question of law, which we review de novo on appeal. See Pierron v Pierron, 282 Mich.App. 222, 243; 765 N.W.2d 345 (2009).

         B. ANALYSIS

         The circuit court in this case stated near the end of its oral ruling that it was "satisfied" that the district court did not abuse its discretion when granting summary disposition to Guardian and Craig. Challenges to a court's decision to grant or deny summary disposition are reviewed de novo. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich.App. 362, 369; 775 N.W.2d 618 (2009). The mere fact that the court recited the wrong standard is not dispositive, however. When it began its ruling, the court stated that it was conducting a de novo review. It also noted that its review of the case and the briefs led it to its conclusion that summary disposition had been properly granted in Guardian and Craig's favor. Thus, although the court inadvertently recited the wrong standard at the conclusion of its ruling, given that it started with the correct standard and indicated that it had, in fact, conducted a de novo review of the case, we discern no reversible error.



         Nitzkin argues that the trial court erred by granting summary disposition in favor of Craig and Guardian. He also asserts that the trial court also erred by not granting summary disposition in his favor under MR 2.116(I). We review de novo a trial court's decision to grant or deny a motion for summary disposition. Barnard Mfg Co, Inc, 285 Mich.App. at 369.

         B. ANALYSIS


         The FDCPA does not apply to every attempt by a creditor to collect a debt from a debtor. Instead, it applies when a "debt collector" is attempting to collect a debt from a "consumer." This is made clear in 15 USC 1692, where Congress explains that the purpose of the FDCPA is "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." (Emphasis added). "To further these ends, the FDCPA 'establishes certain rights for consumers whose debts are placed in the hands of professional debt collectors for collection.'" Vincent v The Money Store, 736 F.3d 88, 96 (CA 2, 2013), quoting DeSantis vComputer Credit, Inc, 269 F.3d 159 (CA 2, 2001).[4] Thus, because ...

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