Abby v. Paige, CASE NO. 10-23589-CIV-KING

Decision Date11 January 2013
Docket NumberCASE NO. 10-23589-CIV-KING
CourtU.S. District Court — Southern District of Florida

THIS MATTER comes before the Court upon Plaintiff's Motion for Summary Judgment as to Count I (DE #303) and Defendant Windy Pointe's Renewed Motion for Final Summary Judgment (DE #300), both filed October 1, 2012, and Defendant Paige's Renewed Motion for Summary Judgment as to All Counts (DE #304), filed October 2, 2012. The Court, being fully briefed on the matter,1 finds that Plaintiff is entitled to judgment as a matter of law on Count I and that Defendants are entitled to judgment as a matter of law on Counts II and III. For the reasons discussed below, Plaintiff's Motionand Defendant Paige's Motion are granted in part and denied in part; Defendant Windy Pointe's Motion is granted.


On October 6, 2010, Plaintiff Felice Abby ("Abby"), a homeowner in the Windy Point residential complex, filed a three-count Complaint against Defendant Windy Pointe Homeowners Association ("Windy Pointe") and Defendant Robert Paige ("Paige"), Windy Pointe's attorney. Abby's Complaint alleges violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., against Defendant Paige and violations of the Florida Consumer Collection Practices Act ("FCCPA"), FLA. STAT. § 559.55 et seq., against Defendant Paige and Defendant Windy Pointe for unlawfully attempting to collect a debt from Abby. The Complaint also alleges slander of title against both Defendants based on the lien placed on Abby's property. The following facts are not in dispute.2

Abby resides in a home she owns in the Windy Point residential complex in Cutler Bay, Florida. As a member of the Windy Pointe Homeowner's Association, Abby is subject to the Declaration of Restrictions and Covenants for Windy Pointe ("Declaration"), as amended and restated, by virtue of her property ownership. Pursuant to the Declaration, monthly maintenance assessments are timely due and payable to Windy Pointe together with applicable interest, late fees, costs, and reasonable attorney's fees.

Payment is due on the first day of each month, though late fees and other costs are not applicable until the expiration of a grace period. The Declaration states that the grace period is "thirty (30) days (or such other period of time established by the Board) after the due date." (Declaration of Restrictions and Covenants, DE #13-2, p. 37). However, in her deposition, Tara Walker, the association's manager since at least 1999, stated that at some point before Abby purchased her property in 2000 the Board shortened the grace period to fifteen days. As of at least 2007, the payment coupons sent to Windy Pointe homeowners reflected a fifteen-day grace period. Abby sometimes did not pay the assessment by the fifteenth of each month. This was, at the very least, true for January 2007, October 2007, December 2007, April 2008, June 2008, and February 2009. Each time, a late fee was automatically added to Abby's account balance.

In September 2009, Windy Pointe engaged Paige to collect Abby's outstanding balance. Paige had been the association's attorney since the mid-1990s. His duties included supervising or assisting with Board elections and meetings; negotiating contracts; interpreting the Declaration and By-Laws; property management; enforcing rules and regulations; collecting rents; collecting overdue assessments; recording and foreclosing liens; and representing Windy Pointe in mortgage foreclosure litigation. During all times material to the above-styled action, about 90 percent of Paige's business involved representing sixty to eighty homeowners' associations. He did at least some collection work for the majority of these clients.

On October 6, 2009, Paige, acting on behalf of Windy Pointe, sent Abby a letter demanding $572.20 for the November 2009 assessment of $77.20, alleged "past duemaintenance and other charges," and $150.00 for attorney's fees. (DE #1-4). The letter stated that if Abby did not pay the full amount within 45 days, "the Association has instructed me to file a Lien against your property, which could result in the loss of your property if you continue to fail to make payment." (Id.). The letter did not identify Paige as a debt collector. On November 1, 2009, Abby submitted a check for $77.20, and Paige responded, on November 9, 2009, with a letter confirming receipt of the partial payment and demanding $500.00 no later than November 21. 2009. This "Part Payment Memo!", which also was sent on Windy Pointe's behalf, again did not identify Paige as a debt collector and repeated that Paige would record a lien against Abby's property if payment was not timely.

At that point, Abby communicated with her brother, Thomas Abinanti, Esq., regarding the monies claimed due. Abinanti is an attorney licensed to practice law in the state and federal courts of Connecticut and New York, as well as in the United States Court of Appeals for the Second Circuit. He is not licensed to practice in Florida.3 But on November 20, 2009, Abinanti sent a letter to Paige in which he asked about the payment demands made to Abby. Paige responded, by fax, that Abby still owed $500.00 but that "Mr. Paige will deduct $100.00 from this total if she comes to our office with clear funds by 12 noon tomorrow." (DE #1-8). On November 24, 2009, after discussion with her brother, Abby issued a check for $400.00 to the Robert E. Paige Trust Account, writingthe words "UNDER PROTEST" on the check. Three days later, on November 27, 2009, Abby also submitted a $77.20 check for the coming assessment.

Yet, two weeks later, on December 14, 2009, Abby received another letter from Paige on behalf of Windy Pointe, demanding $449.70 "for the total of the past due maintenance and other charges described on the enclosed statement (less $250.00 payment), the January $77.20 assessment, and a $150,000 attorneys fee." (DE #1-10). This letter, like the previous ones, indicated that Paige would place a lien against Abby's property if the amount was not paid within 45 days. (Id.). A copy was sent to "Thomas Abinanti, Esq." (Id.). The next day, on December 15, 2009, Abby received another letter from Paige, on behalf of Windy Pointe, confirming receipt of the November 27, 2009 check for $77.20 and demanding "payment in the amount of $372.50 by no later than January 29, 2009 [sic]." (DE #1-11). Again, Paige expressed that he would record a lien against Abby's property if payment was not timely.

Abby then filed a pro se state court action against Paige and Windy Pointe on January 28, 2010, seeking to recover the $400.00 she made on November 24, 2009. Abby's expenses for filing the state court action included a $124.25 filing fee and costs of $25.00, for a total of $149.25. The state court action did not stop Paige and Windy Pointe's efforts to collect from Abby.

On April 27, 2010, Paige sent Abby a letter, notifying her of a lien he had recorded against her property in the amount of $1,095.00, to include the $195.00 balance reflected on her Resident Transaction Report, $850.00 in attorney's fees, and $50.00 in costs. The letter demanded payment in the amount of $1,181.65, to include the $1,095.00,along with the May 2010 assessment of $86.65. On June 5, 2010, Abby issued a check to the Robert E. Paige Trust Account in the amount of $1,095.00. This resulted in the removal of the lien on July 12, 2010. Abby again wrote the words "UNDER PROTEST" on the check she submitted to Paige. She subsequently voluntarily dismissed her state court action against Paige and Windy Pointe on October 15, 2010.

On October 6, 2010, Abby, through newly-retained local counsel, filed the above-styled action, alleging violations of the FDCPA against Defendant Paige (Count I) and violations of the FCCPA (Count II) and Slander of Title (Count III) against Defendant Paige and Defendant Windy Pointe. Over the following nearly two years, the parties engaged in protracted litigation and extremely contentious discovery. The docket now contains more than 300 entries, including several lengthy rulings.4

Significantly, on July 18, 2012, the Court denied Defendants' motions for summary judgment on all counts. (DE #287). In doing so, the Court determined that Abby's account balance qualifies as a "debt" under the FDCPA and FCCPA; the Court also found that Defendants did not meet their burden of pointing to a place in the record demonstrating the absence of a genuine issue of material fact on slander of title.

At the July 6, 2012 Pretrial Conference, the parties agreed to sever their claims for attorneys' fees and costs from the trial on liability and damages, which was set for the two-week calendar commencing September 4. (DE #283). The trial, however, was cancelled following the August 30, 2012 Calendar Call because the parties ignored the Court's Order to file a joint pretrial stipulation (DE #271) and left unresolved a multitude of factual and legal issues. The Court ordered the parties to submit cross-motions for summary judgment based on the facts as developed in the record and the law as it pertains to the factual and legal issues developed by the Complaint, Answer, and prior rulings of the Court. (DE #297).5

The parties' motions are now ripe for adjudication.6 Plaintiff seeks judgment against Defendant Paige on Count I (FDCPA) and "suggests" that the Court avoid adjudicating the Florida state law claims, Count II (FCCPA) and Count III (Slander of Title), so that Plaintiff can proceed with those claims in state court. Defendant Paige seeks judgment in his favor on all counts; Defendant Windy Point, who is not accused of violating...

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