United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DKT.
A. GOLDSMITH United States District Judge
Chad and Caitlin Truhn fell behind on their payments to their
homeowners' association, Landsdowne Community Association
(the “Association”). In their agreement with the
Association, the Truhns agreed to pay the costs of collecting
their fees, a task the Association outsourced to Defendant
EquityExperts.org, LLC (“Equity Experts”) in
November 2017. Over the course of Equity Experts'
involvement, the Truhns' debt grew from $577.42 in
delinquent assessments in November 2017 to $2, 269.31 in
March 2018, when they paid $2, 232.21 to settle their debt.
7/2/18 Statement, Ex. 7 to Mot. for Summ. J. at 19-20 (Dkt.
27-7). The Truhns subsequently brought this case
alleging that Equity Experts' collections practices
violate the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.
They now move for summary judgment (Dkt. 27). For the reasons
discussed below, the motion is granted in part.
accepting title to their Virginia property, the Truhns agreed
to pay the Association regular and special assessments,
“together with such interest thereon and costs of
collection thereof.” Statement of Additional Material
Facts ¶ 2 (“SAMF”) (Dkt. 32) (quoting Decl.
of Covenants, Conditions and Restrictions at 8, Ex. 1 to
Resp. (Dkt 32-2)). “Costs of collection” include
“interest, costs, and reasonable attorney fees.”
Id. These financial obligations became charges
against the land and a continuing lien on the lot, as well as
the personal obligation of the Truhns. Id. From the
uncontested ledger, it appears the Truhns missed their July
and October quarterly assessments; with late fees, the Truhns
owed $577.42 as of October 31, 2017. See Association
Ledger, Ex. 3 to Mot. (Dkt. 27-3). The Association retained
Equity Experts in November 2017. SAMF ¶ 4.
Experts sent a dunning letter to the Truhns on November 21,
2017. Ex. 2 to Mot. (Dkt. 27-2) (“November 21
Letter”). This letter said the Truhns owed $847.42, and
it noted that the debt “may consist of regular
association assessments, special assessments, interest, fees,
fines and costs, which include amounts incurred by the
Association to collect the debt.” Id. The
$847.42 included $577.42 for association dues and late fees
and $270 for sending the November 21 Letter. Counterstatement
of Material Facts ¶ 5 (“CMF”). The charges
were not itemized in the November 21 Letter, and the parties
dispute whether the letter's language describing what the
debt “may consist of” was sufficient to inform
the Truhns of the amount and character of the debt.
January 31, 2018, Equity Experts sent another collection
letter to the Truhns. Ex. 5 to Mot. (Dkt. 27-5)
(“January 31 Letter”). The letter stated the
In our previous letter, we advised you that if the debt was
not paid within 15 days, a lien would be filed against your
property and additional collection charges would be added to
your debt. Unfortunately, we have not received full payment
of the debt. Accordingly, this letter is your notice that a
lien has been mailed for recording against your property. A
$395.00 collection fee, actual attorney's fees incurred
to prepare the lien and actual filing fees have been charged
to your association, who will add these charges to your
Id. That letter also provided a list of the
charges-separated into categories such as “assessment,
” “collection costs, ” and
“attorney's fees”-and provides instructions
“to make a payment or obtain a release of this
lien.” Id. Equity Experts never recorded a
lien. CMF ¶ 16.
Experts contends that Virginia law requires an attorney to
execute a property lien, so it sent the draft lien and check
for actual costs to attorney Tom Hodges in Virginia.
Id. Equity Experts alleges that “[b]ecause
Plaintiffs paid off their account in full, the lien was not
filed to honor Plaintiffs' payment to satisfy the
account.” Id.; see also CMF ¶
10. The Truhns deny this allegation and point to the fact
that the lien had not been recorded by the time the Truhns
paid their debt in full, one-and-a-half months after Equity
Experts stated that it had mailed the lien to be recorded.
Reply to Counter-Statement of Material Facts ¶ 10
(“RCMF”). The parties agree that Equity Experts
never stated that a lien was recorded. SAMF ¶ 11. The
Truhns contend that “the clear implication in those
statements is that the lien would be recorded.” Mot. at
February 16, 2018, Equity Experts sent another letter. Ex. 9
to Mot. (Dkt. 27-9) (“February 16 Letter”). It
stated, among other things, the following:
You were advised in a previous letter that a lien has been
sent for recording against the property. A lien for unpaid
association assessments remains until it is removed by a
court, the debt is satisfied or the debt is paid in full. The
law also permits the association to enforce its lien by
foreclosure, if it chooses. Please note that the association
has not started foreclosure proceedings at this time. That
decision belongs only to your association and they may choose
not to foreclose. If the association decides to enforce its
lien at a future date, you will receive the notice that the
law requires before that step is taken.
March 14, 2018, the Truhns paid $2, 232.21 to Equity Experts
to settle their debt. See 7/2/18 Statement.
STANDARD OF REVIEW
motion for summary judgment under Federal Rule of Civil
Procedure 56 shall be granted “if the movant 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(a). A genuine dispute of material fact exists
when there are “disputes over facts that might affect
the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “[F]acts must be viewed in the light most
favorable to the nonmoving party only if there is a
‘genuine' dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). The moving party may discharge its burden by showing
“that there is an absence of evidence to support the
nonmoving party's case.” Horton v. Potter,
369 F.3d 906, 909 (6th Cir. 2004) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986)).
the FDCPA, courts review a debt collector's
representations under the “least sophisticated consumer
standard, ” an objective test meant to ensure that the
FDCPA protects all consumers. Barany-Snyder v.
Weiner, 539 F.3d 327, 333 (6th Cir. 2008).
prevail on a claim under the FDCPA, a plaintiff must show
that (1) she is a “natural person obligated or
allegedly obligated to pay any debt, ” 15 U.S.C. §
1692a(3); (2) the “debt” arises out of a
transaction entered primarily for personal, family, or
household purposes, 15 U.S.C. § 1962a(5); (3) the
defendant is a “debt collector, ” within the
meaning of 15 U.S.C. § 1692a(6); and (4) the defendant
violated a provision of the FDCPA. Dunn-Mason v. JP
Morgan Chase Bank, N.A., No. 11-13419, 2013 WL 5913684,
at *11 (E.D. Mich. Nov. 1, 2013).
Equity Experts argues that the Truhns failed to file an
affidavit supporting their position that their debt is a
consumer debt and that Equity Experts is a debt collector,
Resp. at 22, Equity Experts does not seriously deny that
Truhn is a consumer, that the alleged debt is a
“debt” as defined by the FDCPA, or that Equity
Experts is a “debt collector” under the
FDCPA. The Truhns meet the threshold requirements
of an FDCPA claim, and the only dispute for each claim under
the FDCPA is whether Equity Experts violated a provision of
Violation of 15 ...