Depolink Court Reporting & Litig. Support Services v. Rochman

• Decision Date: 26 April 2013
• Citation: 430 N.J.Super. 325,64 A.3d 579
• Court: New Jersey Superior Court
• Parties: DEPOLINK COURT REPORTING & LITIGATION SUPPORT SERVICES, Plaintiff–Respondent, v. David S. ROCHMAN, Esq., Defendant/Third–Party Plaintiff–Appellant, v. J. Robert Morgan and Johnson, Morgan & White, Third–Party Defendants–Respondents.

430 N.J.Super. 325

64 A.3d 579

DEPOLINK COURT REPORTING & LITIGATION SUPPORT SERVICES, Plaintiff–Respondent,

v.David S. ROCHMAN, Esq., Defendant/Third–Party Plaintiff–Appellant,

v.J. Robert Morgan and Johnson, Morgan & White, Third–Party Defendants–Respondents.

Superior Court of New Jersey, Appellate Division.

Argued March 18, 2013.

Decided April 26, 2013.

David S. Rochman, Cherry Hill, appellant, argued the cause pro se.

Stephen H. Barrett argued the cause for respondents J. Robert Morgan and Johnson, Morgan & White (Mattleman, Weinroth & Miller, PC, attorneys; Mr. Barrett and Michael R. Mignogna, on the brief).

Before Judges SABATINO, FASCIALE¹ and CARROLL.

The opinion of the court was delivered by

CARROLL, J.S.C. [temporarily assigned].

Defendant appeals from that portion of an April 2, 2012 order for summary judgment dismissing his third-party complaint alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. § 1692 to –1692o, the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8–1 to –20, and common law fraud. We affirm.

I

The following facts derive from evidence the parties submitted in their summary judgment motions, viewed in the light most favorable to defendant. See R. 4:46–2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995).

Plaintiff, DepoLink Court Reporting & Litigation Support Services, provides court reporting and litigation support services. Defendant, David S. Rochman, Esq., is a New Jersey attorney. On July 15, 2010, defendant utilized plaintiff's court reporting services to take the depositions of two witnesses in a pending Law Division action. Four other attorneys involved in that litigation attended the depositions. While there, defendant and all four attorneyssigned plaintiff's transcript order form (form). The form provided that:

PLEASE READ: I hereby agree to pay all normal and customary preparation and delivery charges in full to DepoLink Court Reporting. I also agree to place the invoice in line for prompt payment. I understand that payment terms are net [thirty] days and a 1.5% per month late fee may apply. DepoLink reserves the right to request pre-payment by credit card orC.O.D.prior to transcript delivery for any out[-]of[-]state law firm with whom we do not have payment history.

[ (Bold in original) ]; [ (Emphasis added).]

According to plaintiff, it prepared the transcripts, and on July 22, 2010, invoiced defendant for them. Defendant received the transcripts on July 27, 2010. Defendant retained the transcripts; however, he refused to pay plaintiff's invoice. Plaintiff subsequently retained a collection agency, third-party defendant Johnson, Morgan & White (collection agency), to assist in recovering the cost for the transcripts. The collection agency's efforts were similarly unsuccessful.

Defendant certified to the motion judge that he was presented with the form at the conclusion of the deposition, but that there was no negotiation nor any agreement on his part to its payment terms. Within a week he received a call from plaintiff “advising that they were unilaterally changing the terms of their agreement,” and requesting payment on a C.O.D. basis.² Defendant rejected those terms and advised plaintiff that “they could keep their transcripts.” According to defendant, he continued to negotiate with plaintiff, but no agreement could be reached.

Subsequently, defendant was contacted by the collection agency, which he claims misrepresented that it was a law office, and threatened him with an ethics complaint and criminal prosecution. Defendant refused to pay the bill for the transcripts or a reduced amount for the court reporter's time in taking the depositions. Defendant maintained that “the rate [and] charges sought [by plaintiff] are usurious, they are beyond customary and reasonable and they were never agreed to at any point in time.”

In October 2011, plaintiff filed this lawsuit in the Law Division, Special Civil Part, for the transcript costs. Defendant filed a counterclaim, as well as a third-party complaint against the collection agency and one of its principals, J. Robert Morgan, alleging common law fraud, and violations of the CFA and FDCPA. In February 2012, plaintiff and the collection agency subsequently moved for summary judgment. Defendant cross-moved to dismiss their pleadings for failure to answer interrogatories. On April 2, 2012, the motion judge, without oral argument, entered judgment against defendant for $4,570.30, representing the full cost of the transcripts plus the 1.5% monthly charge which the judge found was due plaintiff under the payment agreement. At the same time, defendant's counterclaim and third-party complaint were both dismissed.

In the judge's March 26, 2012 written opinion, he found that the transcript form, which defendant indisputably signed, was very clear and simple. It specifically allowed plaintiff to seek payment from defendant on a C.O.D. basis. The judge found that there was no “unilateral changing” of the contract, as defendant maintained. The judge ruled that the transcripts, which were ordered by defendant, were properly prepared by plaintiff and sent to him. Defendant retained the transcripts, and was responsible for payment of their costs.

Defendant appeals from the April 2, 2012 judgment. While the appeal was pending, plaintiff and defendant settled their dispute, leaving only the dismissal of defendant's third-party complaint against the collection agency and Morgan for our consideration.

II

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491, 867 A.2d 1159 (2005); Tymczyszyn v. Columbus Gardens, 422 N.J.Super. 253, 261, 27 A.3d 1253 (App.Div.2011), certif. denied,209 N.J. 98, 35 A.3d 681 (2012). Thus, we consider, as the trial judge did, “ ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445–46, 916 A.2d 440 (2007) (quoting Brill, supra, 142 N.J. at 536, 666 A.2d 146). Summary judgment must be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” R. 4:46–2(c). If there is no genuine issue of material fact, we must then “decide whether the trial court correctly interpreted the law.” Massachi v. AHL Servs., Inc., 396 N.J.Super. 486, 494, 935 A.2d 769 (App.Div.2007), certif. denied,195 N.J. 419, 949 A.2d 847 (2008) overruled in part on other grounds, Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 563, 39 A.3d 177 (2012). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512–13, 984 A.2d 872 (2009). Applying these standards, we conclude that the trial judge properly granted summary judgment against defendant.

A

We first consider defendant's contention that the motion judge erred in his failure to find that the collection agency violated the FDCPA, 15 U.S.C.A. § 1692 to –1692o. As our Supreme Court has observed:

Congress enacted the FDCPA in 1968 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.” 15 U.S.C.A. § 1692(e); accordS.Rep. No. 95–382, at 1–2 (1977), reprinted in 1977 U.S.Code Cong. & Admin.News 1695, 1696 (stating FDCPA's purpose is to “protect consumers from a host of unfair, harassing, and deceptive debt collection practices”). Designed “to have a broad remedial scope,” Hamilton v. United Healthcare of La., Inc., 310 F.3d 385, 392 (5th Cir.2002) (citations omitted), the Act protects consumers, or “natural person[s] obligated to ... pay any debt,” 15 U.S.C.A. § 1692a(3), by creating procedural mandates for debt collection and prohibiting objectionable debt collection practices. Notably, the FDCPA prohibits a debt collector from, among other conduct, using “any false, deceptive, or misleading representation or means in connection with the collection of any debt,” 15 U.S.C.A. § 1692e, and using “unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C.A. § 1692f.

[Hodges v. Sasil Corp., 189 N.J. 210, 222, 915 A.2d 1 (2007).]

The FDCPA makes it unlawful for a debt collector to use unfair or unconscionable means to collect a debt. A “debt” within the meaning of the FDCPA is:

[A]ny obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

[15 U.S.C.A. § 1692a(5) (emphasis added).]

The statutory definition of “debt” is clear; it is “not beset with internal inconsistencies [or] burdened with vocabulary that escapes common understanding.” Hodges, supra, 189 N.J. at 223, 915 A.2d 1 (citing Hamilton, supra, 310 F.3d at 391). Although this collection case obviously involves a debt, the pivotal legal question under the statute is whether the obligation constitutes a “consumer” debt. The threshold inquiry therefore is whether defendant incurred the debt for personal, family, or household expenses. We conclude that he did not. Rather, plaintiff provided the court reporting services for use by defendant's business. Defendant does not deny this business purpose. In his certification submitted in opposition to the summary judgment motion, defen...