Coffey v. Bay View Municipality
| Decision Date | 05 April 2022 |
| Docket Number | 2:22-cv-00039 |
| Parties | ANN COFFEY, Plaintiff, v. BAY VIEW MUNICIPALITY, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
REPORT AND RECOMMENDATION
Plaintiff Ann Coffey filed a complaint on February 25, 2022. (ECF No. 1.) The Court granted Coffey in forma pauperis status on March 1, 2022, allowing Coffey to proceed without prepayment of filing fees. (ECF No. 5.) As a result, the Court must undertake an initial review of the complaint to determine if this matter should proceed.
Coffey asserts claims under the Federal Trade Commission Act (FTCA), 15 U.S.C. §§ 45(a), (m)(1)(A), 53(b) and 56(a), and the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p, arising out of events that occurred in Emmet County, Michigan involving property that she owns in the Bay View community.
Coffey named the following Defendants in her complaint: The Municipality of Bay View, (49770) Michigan; the individual board members of the Municipality of Bay View; Bay View Real Estate Management, Inc.; The Bay View Town Crier; Carol Neithercut, Eric Breisach, Esq.; the Plunkett Cooney Law Firm (Petoskey, Michigan); Henry Cooney, Esq.; James J. Murray, Esq.; John Patrick Deegan, Esq.; Matthew Cross, Esq.; Michael S. Bogren, Esq.; Robert A. Callahan, Esq.; Drost Landscaping (Petoskey, Michigan); Barbar Pfiel; Mike Spencer; Jake Porath; Tony Presly; and Rance Carpenter.[1]
Coffey's claims under the FTCA fail because there exists no private right of action allowing private citizens to bring suit for alleged violations under the FTCA. Similarly, Coffey's Eighth Amendment claims fail as a matter of law because Coffey has failed to set forth actionable Eighth Amendment cruel and unusual punishment claims against an appropriate state actor. Coffey's complaint also fails to allege FDCPA claims against a debt collector as defined under the Act. Coffey fails to allege actionable conduct against each Defendant establishing that federal law has been violated. However, the complaint does assert several state law claims that are more appropriately addressed in the State Courts of Michigan.
It is respectfully recommended that the Court dismiss the complaint under 28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a claim upon which relief may be granted.
Coffey's complaint is not a model of clarity. The complaint asserts that Defendants engaged in unfair debt collection practices among various other wrongs that were perpetrated against Coffey and members of her family. Coffey says that Defendants engage in consumer debt collection and regularly attempt to collect debts by telephone, U.S. mail, and in other manners. (ECF No. 1, PageID.4.) Coffey says that in this instance, Defendant Plunkett Cooney (the Plunkett Cooney Law Firm) has not attempted to collect any debts by telephone. (Id.)
Coffey says that Bay View treats homeowners unfairly by restricting access to real estate agents and requiring homeowners to provide a first right of refusal to neighbors before a home may be sold.[2] (Id.) Bay View and the Plunkett Cooney law firm allegedly threatened to auction Coffey's $300, 000.00 home to satisfy a $3, 000.00 bill.[3] They then allegedly seized thousands of dollars of new roofing shingles, ladders, and supplies and charged Coffey “literally thousands of dollars to seize” the property and attempted to “extort” more of Coffey's resources. (Id.)
Coffey alleges that on “numerous occasions Defendants have called upon Plaintiff at her private property repeatedly or continuously with the intent to stalk, annoy, harass, and abuse.” (Id. at 5.) Coffey alleges that Defendants entered her property even after she told them not to orally and in writing. (Id.) Specifically, Defendant Spencer allegedly has entered her property repeatedly over the last five years. (Id.) Coffey characterizes this activity as stalking and asserts that she has called the Emmet County Sheriff's Office to have this stopped. (Id.) Defendant Spencer harassed Coffey and her family on the “Croquet Course” during “match play” in front of the Bay View public community. (Id.)
Coffey alleges that Defendants have placed printed announcements or messages in the “Town Crier” newspaper to divulge that they are debt collectors and Coffey owes a debt and also placed that announcement on Bay View bulletin boards in public view. (Id.)
In Count I, Coffey asserts a violation under the FTCA by alleging that the Plunkett Cooney law firm and Bay View attempted to collect a debt owed to Drost Landscaping. (Id., PageID.6.) Coffey alleges that she separately contracted with Drost Landscaping in 2019 and did not owe the company a debt. (Id.) Coffey asserts that neither the Plunkett Cooney law firm nor Bay View had any involvement with her contract with Drost Landscaping and had no standing to assert that a debt was owed. (Id.)
In Count III, [4] Coffey asserts that Defendants engaged in false, deceptive, or misleading representations regarding the padding of the bill owed to Bay View based upon Coffey's contract with Drost Landscaping. (Id., PageID.7.) Coffey describes these actions as violations of the FDCPA.
Coffey asserts that Defendant Spencer “authored a false, libelous, and defamatory report to the residents of Bay View about Plaintiff's son which caused Plaintiff's son severe emotional distress and injury.” (Id.) Coffey alleges that Defendants Spencer and Barbara Pfiel “commandeered Plaintiff's State of Michigan Tax Settlement Refund.” (Id.) On February 7, 2022, Defendants Bay View and Jake Porath falsely claimed that Coffey's husband sabotaged his own newly replaced gas line just before Porath posted a debt notice on Coffey's front door of her Bay View residence. (Id.) Coffey says that Porath signed a “Plunkett Cooney prepared sworn affidavit that tangentially glances abject perjury” to make Coffey's husband look like a criminal. (Id.)
In Count IV, Coffey asserts violations of the FDCPA based upon multiple improper communications with third parties to obtain information about her. (Id., PageID.8.) Coffey explains that Bay View published names in the Town Crier in a “libelous defamatory” manner and Mike Spencer harassed her at her home and on the “Croquet Course.” (Id.)
In Count V, Coffey asserts that Defendants violated the FDCPA by making communications at a time and place that were inconvenient to her. Defendants asked about her employment and communicated with her directly or indirectly at her place of employment, and published names in the Town Crier and on the internet. She also asserted that Defendant Mike Spencer harassed her and her family on the “Croquet Course.” (Id.).
In Count VI, Coffey complains that Defendants communicated with persons other than her about her debt in violation of the FDCPA. (Id., Page ID.9.) Coffey says her name was grouped with other homeowners on bulletin boards in public buildings throughout Bay View and on the internet, at the Post Office, and published in the Town Crier. (Id.) Coffey asserts that the formula that Defendant Carol Neithercut uses to determine which Bay View members are in arrears needs a full review in federal court. (Id., PageID.10.) Coffey asserts that if you are on the “outs” with “one of Bay View's ‘governing families' . . . ‘fuzzy math'” will be applied to your account. (Id.) For example, Coffey alleges that Bay View used ‘fuzzy math' to pad her bill owed to Drost Landscaping. (Id.) Coffey requests that this Court change her contractual relationship with Bay View and declare that she no longer has a “leasehold” interest in her property but now has a “freehold” interest. (Id.) Coffey says that Bay View would no longer be able to charge excessive rents for the land. (Id.) Coffey asserts that Bay View has no moral authority and should not be aligned with the Christian Church. (Id.)
In Count VII, Coffey alleges that Defendants Bay View, Mike Spencer, Jake Porath, Rance Carpenter, and the Plunkett Cooney law firm made unannounced visits and failed to cease communications. Coffey alleges that these Defendants continued to communicate with her about her debts despite her request “verbally that the consumers wish Defendants to cease.” (Id.)
In Count VIII, Coffey alleges that Mike Spencer and his staff have stalked her and attempted to have her illegally arrested. (Id., PageID.12.) Coffey says that she has paid Bay View at least $10, 000.00 in cash since September of 2020, but Bay View says that she is still not current on her debt owed. (Id.) Coffey says that Bay View took her tax refund and never gave her a penny of the Bay View refund settlement that Bay View obtained from Bear Creek Township. (Id.) Coffey asserts that in October of 2020, she paid a $500.00 landscape fee to Jake Porath that was supposed to be refundable, but she has not seen a refund. (Id.)
In County IX, Coffey asserts a cruel and unusual punishment claim against the Plunkett Cooney law firm and Bay View because they “obtained their highly deceptive ‘Default Judgment' and ‘Default Order' by using the USA mail to deceptively ‘notify' Plaintiff” of something. (Id., PageID.13.) Coffey does not disclose what she received. Coffey alleges that on Friday, August 30, 2021, Mike Spencer screamed while on her property that “there's not a judge in Emmet County who will uphold your USA Constitutional Rights!” (Id.) Coffey alleges that Defendants Mike Spencer Jake Porath, Barbara Pfiel, and Rance Carpenter stopped the work on her Bay View home improvement projects to repair the roof, electric, paint, and landscape to force Coffey to auction her home with little improvements. (Id.) Defendan...
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