Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC

• Decision Date: 08 August 2014
• Docket Number: No. 13–2026.,13–2026.
• Citation: 758 F.3d 777
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: Camille HADDAD, Plaintiff–Appellant, v. ALEXANDER, ZELMANSKI, DANNER & FIORITTO, PLLC, Defendant–Appellee.

758 F.3d 777

Camille HADDAD, Plaintiff–Appellant,

v.ALEXANDER, ZELMANSKI, DANNER & FIORITTO, PLLC, Defendant–Appellee.

No. 13–2026.

United States Court of Appeals, Sixth Circuit.

July 16, 2014.

Rehearing Denied Aug. 8, 2014.

ON BRIEF:Daniel P. Feinberg, The Meisner Law Group, P.C., Bingham Farms, Michigan, for Appellant. Mark B. Davis, Zelmanski, Danner & Fioritto PLLC, Plymouth, Michigan, for Appellee.

Before: SUHRHEINRICH, MOORE, and WHITE, Circuit Judges.

OPINION

PER CURIAM.

Plaintiff Camille Haddad (“Haddad”) appeals the order of the district court granting summary judgment to Defendant law firm Alexander, Zelmanski, Danner & Fioretti, PLLC, (“Firm”) in this action brought under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., and the Michigan Collection Practices Act (“MCPA”), Mich. Comp. Laws § 445.251, et seq. We reverse.

I. Background

Haddad bought a unit in Cumberland Condominiums on May 15, 1991. He lived in the condominium until 2005, and then began renting it out. The Firm represents Cumberland Condominium Association (the “Association”). Kramer–Triad Management Group LLC (“Kramer–Triad”) was the Association's property manager. In October 2008, the Firm, on behalf of the Association, sent Haddad a notice of delinquency in his condominium assessments. The letter stated that Haddad owed the association $898, which was composed of $803 in unpaid assessments, $40 in late charges, and $55 in legal fees and costs. ID# 239. The letter informed Haddad that if the amount demanded was not paid within thirty days, the association would begin proceedings to file a lien against the condominium. Lastly, the letter indicated that the Firm was “attempting to collect a debt from you.” ID# 240.

On November 13, 2008, Haddad notified the Firm that he disputed the amount demanded. He also stated that he had lived in the condominium for over 15 years and had never missed a monthly dues payment, but that “[r]ecently,” he had been “singled out and charged with various violations of the By Laws by K/T [Kramer/Triad] supposedly representing the Board, non [sic] of which applied to the violation, or had any relevance to it.” ID# 241.

On December 3, 2008, the Firm responded. It sent Haddad a second notice, indicating that full payment of the outstanding debt should be sent within ten days, or the association would file a lien against the property pursuant to Mich. Comp. Laws § 559.208(3). The Firm provided Haddad with a recent copy of his account ledger, beginning January 11, 2008, which had been prepared by Kramer–Triad. The letter stated in pertinent part:

As you can see from reviewing your account ledger, the balance owed stems from several late charges that were assessed to your account throughout the course of this year. Also, there is $55.00 in legal fees due for the October 29, 2008 letter that our office sent to you. You should be aware that, under the Bylaws, the Association imposes a late charge on all delinquent accounts each month for as long as any balance remains owing on the account, regardless of whether or not the monthly assessment payment on the delinquent account was in fact late in each new month.

The total remaining amount owed on your account at this time is $938.00. This amount is comprised on the remaining balance as stated on the enclosed account ledger, plus the December monthly assessment of $313.00 and $55.00 in legal fees and costs.

ID# 297.

Haddad sent another letter to the Firm on December 9, 2008, stating that the December 3 letter failed to explain the beginning balance of $75. He noted that he had spoken with Diane McEvoy, who said the $75 consisted of $25 for “having a hot water heater in my patio,” but that “[s]he had no information or proof of the $50.00 balance, nor any details of the subsequent fines that were assessed.” ID# 301. Haddad indicated that he was withholding payment until the Firm provided him with “the date, bylaw citation and detailed description of every charge, as well as a copy of the relevant bylaw.” Id.

On January 20, 2009, the Firm responded by letter and included another ledger. This ledger began approximately as of August 1, 2006, which showed an initial account balance of $50. The January 20 letter demanded $1,063 in charges, which consisted of $363 in condominium assessments, $200 in fines, $400 in late charges, and $100 in legal fees. The letter stated that the “$363.00 in unpaid assessments on your account is comprised of $313.00 for January 2009 and the $50.00 remaining balance that existed on your account when Kramer–Triad took over management of the Association in August 2006.” This letter also pointed out that “there were several months' worth of late charges imposed on your account as a result of the continuing [$50.00] unpaid balance.” ID# 246. The letter provided several pages of the relevant sections of the condominium bylaws:

Per your request, I have also enclosed copies of several pages containing the relevant sections of the Condominium Bylaws that authorize the Association to collect these amounts from you. Specifically, I have enclosed Article II (regarding the Association's authority to impose and collect assessments), Article VI, Sec. 1–2 (regarding leasing of units by co-owners) and Sec. 14 (regarding the Association's power to impose all costs of enforcing the Bylaws, including legal fees and costs, on the defaulting co-owner), and Article XVII, Sec. 1 (regarding the Association's power to impose fines and take legal action against co-owners for Bylaw violations).

ID# 302.

On February 23, 2009, Haddad sent another letter, stating that “[t]he $50.00 balance from the previous management company is unsubstantiated and I believe not valid unless you can show me why and when it was assessed.” ID# 307. Haddad acknowledged the $25 hot water violation. Haddad indicated that he was willing to pay the $25 fine for the hot water heater and the $50 “hold over” from the prior management “ if it can be substantiated.” ID# 308.

On May 18, 2009, the Firm sent Haddad a letter itemizing outstanding charges of $1,704, which consisted of $1,416 in outstanding assessments, $80 in late fees, and $208 in legal fees. Defendant enclosed a copy of a Notice of Lien it planned to file on behalf of Cumberland Condominium Association. The $1,416 figure represented the outstanding assessments as determined by the by-laws of the condominium agreement and the Michigan Condominium Act, (MCA), Mich. Comp. Laws § 559.208(3)(iii). The Notice of Lien stated that the $1,416 was “exclusive of any costs, late charges, interest, fines, attorney fees and future assessments.” The Firm filed the lien, which was recorded with the Oakland County Register of Deeds on May 19, 2009.

On February 19, 2010, the condominium association informed the Firm that “the Association was going to release the lien on this unit,” and directed to the Firm “to do that.” ID 309. The Firm processed the lien discharge that same day. The discharge was recorded with the Oakland County Register of Deeds on February 22, 2010.

Haddad sued, pursuant to the FDCPA and MCPA, alleging that the Firm had violated 15 U.S.C. §§ 1692e, which prohibitsthe use of any false, deceptive or misleading representation in the collection of any debt, and § 1692g(b), which prohibits continuing the collection of any disputed debt until the debtor collector obtains verification of the debt. The parties filed cross-motions for summary judgment. In May 2011, the district court granted summary judgment to the Firm on the ground that the debt at issue was commercial because Haddad was renting his property when the Firm began its collection efforts and thus the underlying debt could not be considered “primarily for personal, family, or household purposes” as defined by the FDCPA. This court reversed, holding that an obligation to pay assessments arose from the original purchase, not when the collection efforts began, and thus constituted a “debt” under the FDCPA. See Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 698 F.3d 290 (6th Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 1726, 185 L.Ed.2d 786 (2013).

On remand, the parties filed new cross-motions for motions for summary judgment. The “central issues” before the court were “whether Defendant properly ‘verified’ the debt and whether Defendant's actions in collecting the debt were misleading, in violation of the FDCPA and MCPA.” ID# 386. On June 5, 2013, the district court granted summary judgment to the Firm finding that the Firm had “properly verified the debt as requested by [Haddad] and as required by the FDCPA.” ID# 388. The court further concluded that its collection efforts were not deceptive or misleading, in violation of the FDCPA or MCPA. This appeal follows.

II. Standard of Review

We review the district court's grant of summary judgment de novo. Bowling Green v. Martin Land Dev. Co., 561 F.3d 556, 558 (6th Cir.2009). Summary judgment is appropriate “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 issue of material fact exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Analysis

A. Law of the Case

In the previous appeal, we stated that “the Firm did not verify the debts and recorded a Notice of Lien in May 2009.” Haddad, 698 F.3d at 292. Haddad claims that the district court erred in characterizing this statement as dicta and granting summary judgment to the Firm on this issue.

The law of the case prevents the relitigation of an issue once it has been decided. Bowles v. Russell, 432 F.3d 668, 676 (6th Cir.2005), aff'd,551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). But the doctrine applies only if the appellate court “either expressly or by...