969 F. Supp. 2d 74
D. Mass.2013Background
- Plaintiff McDermott sued MEEB for FDCPA violations and Massachusetts Chapter 93A claims arising from debt collection activity by Pondview Condominium Trust.
- Pondview, a condominium association, owned units and authorized MEEB to collect unpaid assessments, fees, costs and attorney fees from the plaintiff.
- MEEB filed multiple collections actions (2005–2008) against plaintiff and communicated with his mortgagees without his consent, including 60-day and 30-day notices under Chapter 183A § 6(c).
- A 60-day notice and several letters to mortgagees were issued; a September 2008 Essex Superior Court filing was involved in a key FDCPA § 1692i issue.
- The court awarded $800 in statutory damages under Count One (FDCPA) and $10,400 (including prejudgment interest) under Count Two (Chapter 93A) before Rule 59(e) proceedings altered the judgment.
- Rule 59(e) motions led to partial relief: the court found no Chapter 93A trade-or-commerce basis for liability and eliminated Count Two damages, while preserving some FDCPA findings and addressing waiver issues related to § 1692i.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MEEB engaged in trade or commerce under CH 93A §2(a). | McDermott contends MEEB acted in trade or commerce via its mortgage-collection activities. | MEEB argues there was no trade or commerce because the dispute was a private condominium matter and activities were attorney advocacy for a client. | MEEB not liable; no trade or commerce under §2(a) given factual context and intervening law. |
| Whether untimely FDCPA violations create per se CH 93A liability. | Untimely FDCPA acts can support per se Chapter 93A liability. | Per se liability should not attach absent trade-or-commerce context; timely law governs. | No per se CH 93A liability; controlling law change requires trade-or-commerce analysis. |
| Whether MEEB waived §1692i liability for filing in the wrong court and whether Rule 59(e) relief is appropriate. | Waiver should not bar §1692i liability; waiver theory was not raised timely. | Waiver applies; Rule 59(e) relief to address sua sponte consideration was improper. | Waiver found; Rule 59(e) relief allowed to correct error; nonetheless overall §1692i liability was not sustained. |
| Whether the May 13, 2008 §1692c(b) disclosure to mortgagees violated FDCPA. | Letters to mortgagees violated §1692c(b) by disclosing debt to third parties. | Letters were permissible and not unfair or deceptive; only some letters were timely under §1692k(d). | May 13, 2008 letter violated §1692c(b); this supported a basis for damages, though other issues affected overall liability. |
| Whether failure to send 30-day notices under CH 183A §6(c) supports §1692d or §1692f violations or damages. | Failure to provide 30-day notices caused damages and violates FDCPA provisions. | Noncompliance with §6(c) does not automatically produce §1692d/§1692f violations or damages. | Failure to send 30-day notices did not create §1692d or §1692f liability; damages were not awarded on this basis. |
Key Cases Cited
- Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165 (Mass. 2013) (limits broad 3.16 interpretations of CH 93A to require trade or commerce)
- First Enterprises, Ltd. v. Cooper, 680 N.E.2d 1163 (Mass. 1997) (attorney statements in disputes not in business context cannot create CH 93A trade or commerce)
- Berish v. Bornstein, 770 N.E.2d 979 (Mass. 2002) (statute not applicable to private condominium disputes)
- Office One, Inc. v. Lopez, 769 N.E.2d 749 (Mass. 2002) (private disputes and litigation context affect CH 93A applicability)
- Milliken & Co. v. Duro Textiles, LLC, 887 N.E.2d 244 (Mass. 2008) (litigation activity alone does not establish CH 93A trade or commerce)
- Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456 (Mass. 1997) (client vs attorney context in CH 93A claims)
- Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756 (1st Cir. 2010) (waiver and Rule 59(e) principles in appellate review)
- Venegas-Hernandez v. Sonolux Records, 370 F.3d 183 (1st Cir. 2004) (Rule 59(e) waiver considerations in judgments)
- Bennett v. City of Holyoke, 362 F.3d 1 (1st Cir. 2004) (waiver when not raised in pretrial proceedings)
- In re Pharmaceutical Industry Average Wholesale Price Litigation, 491 F. Supp. 2d 20 (D. Mass. 2007) (regulation 3.16 and consumer protection context for CH 93A analysis)