Todaro v. Reimer, Arnovitz, Chernek & Jeffrey Co., L.P.A.
704 F. App'x 440
| 6th Cir. | 2017Background
- Todaro stopped paying her mortgage in Aug 2014; Huntington Bank held the mortgage and foreclosure was initiated in Feb 2015. A Court of Common Pleas found she owed $116,824.41 but her debt had been discharged; the sheriff sold the property to Huntington in Nov 2015.
- After the sale Huntington/Reimer Firm (defendants) sent a HUD-styled “Notice to Occupant” (did not identify as debt collectors), a Notice to Vacate, and posted a Notice to Leave while a 90‑day stay of possession from the Common Pleas court was in effect.
- Defendants then filed a municipal eviction action in Mar 2016; the municipal court dismissed for lack of jurisdiction in light of the stay. Defendants apologized and said they would not attempt eviction until the stay lifted.
- Todaro alleges continued collection-like communications post-sale (mortgage statements, a 1099‑A) and claims FDCPA violations and abuse of process based on the municipal eviction filing.
- District court dismissed: FDCPA inapplicable because post‑foreclosure eviction was not debt collection and communications were not for debt collection; abuse of process failed for lack of an ulterior purpose beyond pursuing eviction.
- Sixth Circuit affirmed on de novo review, holding post‑foreclosure eviction conduct was not debt collection, defendant law firm could not be imputed with bank’s post‑sale collection communications, and the eviction filing did not show the coercive ulterior purpose required for abuse of process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FDCPA covers post‑foreclosure eviction conduct | Glazer shows foreclosure‑related lawyer conduct is debt collection; FDCPA should apply | Post‑foreclosure eviction seeks possession, not money; debt collection ended at sale | Post‑foreclosure eviction is not FDCPA debt collection; FDCPA does not apply |
| Whether defendants are "debt collectors" under FDCPA for eviction actions | Defendants acted as debt collectors in pursuing eviction | Defendants acted to obtain possession after foreclosure sale, not to collect debt | Not debt collectors for post‑foreclosure eviction conduct |
| Whether Huntington Bank’s post‑sale collection communications can be imputed to the Reimer Firm | Bank’s statements and 1099‑A show continued collection efforts and should be imputed to its counsel | A client’s collection attempts cannot be imputed to its attorney; no authority supports reverse imputation | Court refused to impute bank’s conduct to defendants; no FDCPA claim via imputation |
| Whether filing the municipal eviction constituted abuse of process or malicious prosecution | Filing eviction despite Common Pleas stay was wrongful and intended to harass/coerce | Eviction sought the very remedy the court could grant (possession); no improper ulterior purpose alleged | Abuse of process fails: no coercive ulterior purpose shown; malicious prosecution argument forfeited on appeal |
Key Cases Cited
- Montgomery v. Huntington Bank, 346 F.3d 693 (6th Cir. 2003) (FDCPA’s purpose and scope regarding abusive debt collection practices)
- Glazer v. Chase Home Finance LLC, 704 F.3d 453 (6th Cir. 2013) (mortgage foreclosure can be debt collection under the FDCPA)
- Grden v. Leikin Ingber & Winters PC, 643 F.3d 169 (6th Cir. 2011) (communication must have an animating purpose to induce payment to be "in connection with" debt collection)
- Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162 (9th Cir. 2006) (attorney not generally liable for client’s independent actions)
- PNH, Inc. v. Alfa Laval Flow, Inc., 958 N.E.2d 120 (Ohio 2011) (elements and proper framing of Ohio abuse of process claim)
- Saumer v. Cliffs Nat. Res. Inc., 853 F.3d 855 (6th Cir. 2017) (standard of review for dismissal under Rule 12(b)(6))