Trivedi v. BD 112A LLC

Decision Date13 February 2020
Docket NumberCase No. 18-CV-313
PartiesSALINA TRIVEDI, Plaintiff, v. BD 112A LLC, et al., Defendants.
CourtU.S. District Court — Eastern District of Wisconsin
DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Salina Trivedi sues her former landlord BD 112A LLC, BD112B LLC, and Show4 LLC (collectively her "landlord" or the "landlord defendants") and its management company, Northern Management, LLC ("Northern") for violations of the Wisconsin Consumer Act, Wis. Stat. § 100.20, and for breach of contract. (Docket # 1.) Trivedi also sues Northern's legal counsel, Bruck Law Offices, S.C. ("Bruck"), for violations of the Fair Debt Collection Practices Act ("FDCPA") and the Wisconsin Consumer Act. (Id.) The landlord, Northern, and Bruck have all filed motions for summary judgment in their favor. For the reasons further explained below, Bruck's motion for summary judgment is granted and the landlord defendants and Northern are dismissed for lack of subject-matter jurisdiction.

UNDISPUTED FACTS

On August 16, 2017, Trivedi signed a lease to rent 114 South University, No. 11, at an apartment complex called "The Preserves." (Bruck's Proposed Findings of Fact ("PFOF") ¶ 6, Docket # 43 and Trivedi's Resp. to Bruck's PFOF ¶ 6, Docket # 59.) Northern is the landlord's agent for collection of rent. (Id.) Upon signing the lease, Trivedi agreed to pay to the landlord a security deposit of $1,635.00 plus $562.00 to cover the first sixteen days of rent for August 2017. (Id. ¶ 8.) The checks Trivedi wrote to cover those amounts were rejected by Trivedi's bank for nonsufficient funds ("NSF"). (Id.) On September 6, 2017, Northern's Property Manager, Patricia Borchardt, advised Trivedi via email as follows: "None of your checks have cleared and your September rent is due. Please contact me ASAP regarding this. Full payment of $3,411.00 is due and must be paid with either a cashier's check or money order." (Id. ¶ 10; Landlord and Northern's PFOF ¶ 6, Docket # 49 and Trivedi's Resp. to Landlord and Northern's PFOF ¶ 6, Docket # 57.) The same day, Trivedi responded via email: "Sorry -it took a long time for them to go through and in the chaos of moving and all the expenses of it, I thought they had already cleared weeks prior-do you have a drop box? I can get the checks filled right away but I need till [sic] Monday to get the rent caught up when I can get my next check." (Bruck's PFOF ¶ 10 and Trivedi's Resp. to Bruck's PFOF ¶10.) The same day, Borchardt responded via email: "Thanks for getting back to me so quickly. Our drop box is the black box on the wall at the back of the mail room. Please do what you can today and I'll notify corporate that the rent will be here Monday. Thank you!" (Id.)

On October 9, 2017, Borchardt advised Trivedi via email that her October rent had not been paid, and that a five-day notice to quit or pay rent would be issued on October 10, 2017, if rent was not received by then. (Id. ¶ 12.) On October 10, 2017, Borchardt emailed Trivedi to advise Trivedi that a five-day notice was being sent to Trivedi on that date. (Id. ¶ 13.) On October 17, 2017, Trivedi emailed Borchardt that "I did drop the payment off, I think I was off on the change though. I didn't do it online this time because it's reallyexpensive with the fees that are added for online payments." (Id. ¶ 14.) The payment Trivedi dropped off was a personal check for $1,218.00. (Id.) On October 27, 2017, the check was rejected for NSF when Northern attempted to deposit it. Because the check did not clear the bank, the bank did not pass the amount to the landlord. (Landlord and Northern's PFOF ¶ 13 and Trivedi's Resp. to Landlord and Northern's PFOF ¶ 13.)

Northern and Bruck entered into an agreement under which Bruck agreed to represent the landlord and Northern's interests in connection with eviction matters for properties managed by Northern. (Id. ¶ 16.) On November 1, 2017, Bruck commenced an eviction action entitled BD 112A LLC, BD 112B LLC & Show4 LLC v. Salina Trivedi, Dodge County, Wisconsin, Case No. 17-SC-1682 (the "eviction"). (Id. ¶ 18.) Trivedi retained Attorney Michael Lueder to represent her in the eviction action from November 2017 until at least early January 2018. (Id. ¶ 19.) On November 28, 2017 an eviction hearing was held in front of Judge Steven G. Bauer in Dodge County Circuit Court. (Id. ¶ 20.) At the hearing, Attorney Lueder represented to the Court that Plaintiff could pay $3,089.32 to the landlord and an agreement was reached whereby Trivedi was allowed to remain in her apartment until December 18, 2017 on the condition that she pay $3,089.32 by November 29, 2017. (Id.) Judge Bauer granted and entered a judgment of eviction but stayed any sort of writ of assistance on the condition that Trivedi make payment in full of $3,089.32 by November 29, 2017. (Id. ¶ 21.) If payment was not made by that date, the landlord and Bruck could seek the immediate issuance of a writ of restitution as of November 30, 2017. (Id.) Trivedi was represented by counsel at this hearing and consented to the entry of the eviction judgment. (Id. ¶ 22.)

Trivedi did not make payment of $3,089.32 by November 29, 2017 as required by the order entered by Judge Bauer on November 28, 2017. (Id.) On November 30, 2017, Trivedi drove to Northern's corporate office and made a partial payment of $1,985.00 in cash. (Id. ¶ 25.) On December 1, 2017, Bruck executed an affidavit of non-compliance and a proposed order to lift the stay of execution on the writ of restitution with the Wisconsin circuit court. (Id. ¶ 29.) On December 5, 2017, Judge Bauer signed an order instituting an immediate writ of restitution at Bruck's request. (Id. ¶ 31.) On December 7, 2017, Trivedi filed a motion for relief from judgment. (Id. ¶ 32.) A hearing was held on December 8, 2017. (Id. ¶ 34.) During this hearing, Trivedi, through counsel, entered into a stipulation on the record in which Trivedi was allowed to stay in the apartment through December 31, 2017. (Id.) The landlord's counsel noted at the hearing, however, that the original writ would expire prior to December 31. (Affidavit of Duffy Dillon ¶ 2, Ex. 2, Docket # 38-2 at 5.) The court responded:

Well, that should be vacated and you can send me another one and you want me to sign it right away and it's ready to go and the - - you're better off to vacate that one, send another one over right away. I can sign it, but you are not going to have the Sheriff's Department act on it until after 11 o'clock on the 31st.

(Id. at 5-6.) A written order was entered memorializing the December 8 agreement on January 25, 2018. (Burket Aff. ¶ 2, g., Ex. 7, Docket # 37-7.) The order states as follows: "[Trivedi] will vacate the premises no later than December 31, 2017 at 11:00 a.m. . . . If [Trivedi] fails to vacate the premises by December 31, 2017, the plaintiff may without notice to [Trivedi] file a new writ of restitution for immediate possession of the unit." (Id.) However, despite the judge stating that Bruck could "send another [writ] over right away" for him to sign, and despite Northern having a policy to always have a writ in place in casea tenant fails to comply with the extension terms, Bruck did not send a new writ for the judge to sign. (Landlord and Northern's PFOF ¶¶ 36, 38 and Trivedi's Resp. to Landlord and Northern's PFOF ¶¶ 36, 38.)

On December 27, 2017, Trivedi asked Northern for another extension past December 31, 2017. (Id. ¶ 39.) Bruck and Trivedi's counsel agreed to an extension until January 5, 2018 on the following terms: (1) that Trivedi vacate the apartment by 11:00 a.m. on January 5 or else the sheriff would be on called to remove her, (2) that Bruck would require that the court sign a writ but the landlord would hold execution until January 5, and (3) that the landlord could inspect the apartment. (Id. ¶ 40.) On January 3, 2018, Trivedi filed a pro se motion to reopen the eviction case, which was denied. (Id. ¶ 46.) That same day, Bruck emailed Trivedi's counsel, stating as follows: "I just asked my client if they have received the payment. They inspected the unit and there is no indication that your client intends to move as agreed. Further, she, on her own, filed a Motion to Reopen this case. What exactly is happening with this case? My client's intent is to move on the writ in the next couple of days if she's not out." (Ex. 1 to Deposition of Salina Trivedi ("Trivedi Dep."), Docket # 33-1 at 106.)

On January 4, 2018 Borchardt sent Trivedi a twelve-hour notice that management would be inspecting her apartment on January 5, 2018. (Landlord and Northern's PFOF ¶ 49 and Trivedi's Resp. to Landlord and Northern's PFOF ¶ 49.) Trivedi responded stating that she had filed a motion to reopen the eviction and that she did not believe there was an active writ in place. (Id. ¶ 50.) Borchardt responded on January 5, 2018 stating that there was a writ of restitution in place and stating they would take legal action if she did not cooperate. (Ex. 10 to Trivedi Dep., Docket # 33-11 at 3.) Trivedi responded that the writwas vacated at the December 8 hearing and asked that the landlord not enter her apartment again. (Id.) Borchardt responded as follows:

Unfortunately, our attorney indicates this is wrong information. We never vacated the writ. My manager is contacting the authorities today. You may want to have your attorney contact our attorney for clarification because someone has wrong information.

(Id. at 1.) On January 24, 2018, Trivedi, through counsel, moved to reopen the eviction case and allow counterclaims against the landlords. (Landlord and Northern's PFOF ¶ 55 and Trivedi's Resp. to Landlord and Northern's PFOF ¶ 55.) The motion was denied. (Id.) The court signed an order of eviction and writ of assistance to be effective January 26, 2018. (Id. ¶ 57.) On or around January 29, 2018, Trivedi was served by the Sheriff's office and advised that she would be removed from the apartment if she did not vacate by February 5,...

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