McDermott v. Marcus, Errico, Emmer & Brooks, P.C.McDermott v. Marcus, Errico, Emmer & Brooks, P.C.
MEMORANDUM AND ORDER RE: PLAINTIFF’S MOTION UNDER RULE 59(E) TO AMEND THE JUDGMENT RELATIVE TO THE FINDINGS AND RULINGS CONCERNING THE PRE-SUIT NOTICES UNDER G.L.C. 183A, § 6(C) (DOCKET ENTRY # 66); MOTION OF THE DEFENDANT, MARCUS, ERRICO, EMMER & BROOKS, P.C., FOR RECONSIDERATION AND/OR TO ALTER AND AMEND JUDGMENT (DOCKET ENTRY #68)
Aftеr a six day non-jury trial, this court issued findings and conclusions under Rule 52(a), Fed.R.Civ.P., (Docket Entry #63) and a final judgment (Docket Entry # 64). Both parties filed timely motions to alter or amend the judgment under Rule 59(e), Fed.R.Civ.P. (“Rule 59(e)”). (Docket Entry # # 66 & 68). After conducting a hearing, this court took the motions under advisement.
The two count complaint sets out violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 (“section
In seeking Rule 59(e) relief, defendant Marcus, Errico, Emmer & Brooks, P.C. (“MEEB”) requests reconsideration of the chapter 93A “trade or commerce” determination. It also argues that the untimely conduct under the FDCPA’s one year limitations period cannot serve as a predicate for a per se violation of chapter 93A. MEEB further seeks reconsideration of the determination that per se chapter 93A violations are not protected by the litigation privilege. MEEB maintains that the. litigation privilege is absolute and bars any liability under chapter 93A. As to the FDCPA, MEEB challenges the determinations that it violated section 1692i by filing suit in the wrong venue and section 1692c(b) by sending letters (Ex. 38, 42, 45, 47, 55, 59, 60 & 68) to plaintiff as opposed to his attorney. (Docket Entry # 74).
Plaintiff urges reconsideration of the finding that MEEB did not violate section 6(c) of Massachusetts General Laws chapter 183A (“chapter 183A”), the state condominium statute, when it failed to send notice of its intent to file suit at least 30 days in advance of filing suit to plaintiffs mortgagees. (Docket Entry # 67). Plaintiff asserts that this court erroneously determined that MEEB’s failure to provide the mortgagees with a letter 30 days before filing suit did not violate either section 1692f or section 1692d. Finally, plaintiff argues that he suffered actual damages in the form of increased attorneys’ fees and costs as a result of MEEB’s failure to notify the mortgagees 30 days in advance of filing suit.
BACKGROUND
Plaintiff, a resident of the Pondview condominiums in Lynn, Massachusetts, filed this action alleging improper debt collection activities on two residential condominium units at the 19 unit complex against MEEB, a professional corporation of attorneys located in Braintree, Massachusetts. Plaintiff, plaintiffs brother and/or plaintiffs parents owned the units at various times and, except for a one year period, plaintiff resided in one of the units.
Created under a September 1986 Declaration of Trust (Ex. B), Pondview is the governing body of the Pondview condominiums and consists of a group of volunteer trustees. The Declaration of Trust states that the trustees must be unit owners. (Ex. B).
The Trustees in their discretion may enforce collection of unpaid assessments for common expenses plus interest thereof by enforcing the lien by a court action or by other lawful means on account of which there shall be added to the amount due and payable the reasonable costs of such collection including reasonable attorney fees.
(Ex. B, Art. V, § 5.3(C)).
In addition, the Master Deed submitted Pondview to the “provisions of Chapter 183A.” (Ex. C, p. 1); see Mass. Gen. L. ch. 183A, § 1 (defining “Master deed” as “the instrument by which the condominium is submitted to the provisions of this chapter”). The Declaration of Trust similarly grants the trustees the power “to exercise all of the powers of the ‘organization of unit owners’ pursuant to Massachusetts General Laws, Chapter 183A.” (Ex. B, Art. Ill, § 3.6). Under section six of chapter 183A, “The organization of unit owners may ... assess any fees, attorneys’ fees [and] late charges ... against the unit owner.” Mass. Gen. L. ch. 183A, § 6(a)(ii). In short, under chapter 183A, the Declaration of Trust and the Master Deed, Pond-view had the ability and the authority to assess condominium fees, attorneys’ fees, late charges and costs of collection against a unit owner such as plaintiff. See Mass. Gen. L. ch. 183A, § 6(a)(ii) & 6(b); (Ex. B, Art. V, § 5.3(C)).
In July and August of 2004, plaintiff fell behind in paying his assessments, late fees and loan payback charges for both units. Pondview did not hire or engage MEEB as its attorney, however, until March 2005. MEEB’s efforts to collect the debts plaintiff owed to Pondview continued through the fall of 2008. Plaintiffs failure to pay legitimately imposed charges led MEEB, on behalf of its client Pondview, to file two collection suits against plaintiff, as a unit owner, on April 28, 2005, in the Massachusetts District Court Department (Lynn Division) (“Lynn District Court”). MEEB filed these and an additional seven collection suits in Lynn District Court except for the last collection suit filed in September 2008 (“Septembеr 2008 unit 104 suit”) in the Massachusetts Superior Court Department (Essex County) (“Essex Superior Court”).
Beginning in May 2005, MEEB also communicated with plaintiffs mortgagees without obtaining plaintiffs consent. Section six of chapter 183A imposes a requirement on a condominium association, such as Pondview, to send a letter to the owner of a unit when any portion of a unit own
Plaintiff filed this suit on February 3, 2009. The FDCPA has a one year statute of limitations. 15 U.S.C. § 1692k(d). The delay in filing suit sharply curtailed the timely FDCPA violations committed by MEEB. In addition to a May 13, 2008 letter that violated section 1692c(b), this court found the following FDCPA timely violations: (1) MEEB violated section 1692c(a)(2) by sending plaintiff, as opposed to his attorney, a 60 day letter dated June 30, 2008 (Ex. 50);
This court also found that MEEB committed a number of FDCPA violations outside the one year , limitations period. These untimely FDCPA violations served as a basis for per se liability under chapter 93A. Examining MEEB’s conduct independent of per se liability, this court additionally determined that such conduсt was neither unfair nor deceptive under chapter 93A.
DISCUSSION
Both parties seek relief under Rule 59(e). “[T]o prevail on a Rule 59(e) motion, the moving party ‘must either clearly establish a manifest error of jaw or must present newly discovered evidence.’ ” Markel American Ins. Co. v. Diaz-Santiago,
Rule 59(e) does not allow a party to raise an argument that could and should have been raised before a judgment issued. Markel American Ins. Co. v. Diaz-Santiago,
I. MEEB’S RULE 59(e) MOTION
A. Trade or Commerce
MEEB seeks reconsideration of the entire chapter 93A award because MEEB’s relationship to plaintiff, as a litigation opponent of MEEB’s client, does not constitute “trade or commerce” under section 2(a)'of chapter 93A. (Docket Entry #69). This court rejected the trade or commerce argument as well as the litigation privilege argument.
Section 2(a) prohibits “unfair or deceptive acts or practices in the conduct of trade or commerce.” Mass. Gen. L. ch. 93A, § 2(a). Section 2(c) provides that, “The attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter” and that, “Such rules and regulations shall not be inconsistent with the rules, regulations and decisions of the Federal Trade Commission ... as from time to time amended.” Mass. Gen. L. ch. 93A, § 2(c).
Exercising the power conferred in section 2(c), the Attorney General of the Commonwealth enacted 940 C.M.R. § 3.16 (“regulation 3.16”). The regulation broadly declares that:
... an act or practice is a violation of M.G.L. c. 93A, § 2 if:
(1) It is oppressive or otherwise unconscionable in any respect; or
(2) Any person or other legal entity subject to this act fails to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influencеd the buyer or prospective buyer not to enter into the transaction; or
(3) It fails to comply with existing statutes, rules, regulations or laws, meant for the protection of the public’s health, safety, or welfare promulgated by the Commonwealth or any political subdivision thereof intended to provide the consumers of this ' Commonwealth protection; or
(4) It violates the Federal Trade Commission Act, the Federal Consumer Credit Protection Act or other Federal consumer protection statutes within the purview of M.G.L. c. 93A, § 2.
Because of the breadth and reach of the language in regulation 3.16, this court rejected MEEB’s argument that it was not engaged in trade or commerce.
After the Memorandum and Order issued and after the parties filed the Rule 59(e) motions, the Massachusetts Supreme Judicial Court issued an opinion rejecting this view. Klairmont v. Gainsboro Restaurant, Inc.,
Section 2(a) of c. 93A proscribes “unfair or deceptive acts or practices in the conduct of trade or commerce.” Although the language of 940 Code Mass. Regs. § 3.16(3) is unquestionably broad, by its terms it imposes the substantive limitation that the law or regulation at issue must be intended to protect consumers, and we further read the regulation as being bound by the scope of c. 93A, § 2(a). In other words, under 940 Code Mass. Regs. § 3.16(3) a violation of a law or regulation, including a violation of the building code, will be a violation of c. 93A, § 2(a), only if the conduct leading to the violation is both unfair or deceptive and occurs in trade or commerce.
Id. (emphasis added).
It is therefore necessary to examine whether the conduct by MEEB that led to the untimely FDCPA violations and per se chapter 93A liability took place in “trade or commerce.”
Section one of chapter 93A defines “trade” and “commerce” to “include the advertising, the offering for sale, rent or lease, the sale, rent, lease or distribution of any services and any property, tangible or
Interpreting section two and whether a party is engaging in trade or commerce by acting in a business context “depends on a number of factors including: ‘the nature of the transaction, the character of the parties involved, and [their] activities ... and whether the transaction [was] motivated by business or personal reasons.’ ” Peabody N.E., Inc. v. Town of Marshfield,
The underlying dispute in the case at bar is a private dispute between volunteer members of a condominium association and a condominium owner who failed to' pay assessments and related charges. See Berish v. Bornstein,
Although the scale of MEEB’s representation оf condominium associations is large, it did not inject itself into the external marketplace in the course of its efforts to collect monies owed to its client, Pondview. See First Enterprises, Ltd. v. Cooper,
Here, MEEB filed the lawsuits to collect monies owed to and incurred by Pondview as a result of plaintiffs delinquencies. MEEB’s motives were not unduly influenced by the desire to increаse its profits. Contrary to plaintiffs view of the facts, this court finds that MEEB was not being deceitful, purposefully concealing its legal fees or its interactions with plaintiffs mortgagees or unduly or improperly focusing on the collection of its attorneys’ fees to the exclusion of the interests of its client. MEEB’s motives were based on a desire to represent its client to the fullest extent possible in a vigorous and aggressive manner. See also St. Paul Fire and Marine Insurance Co. v. Ellis & Ellis,
Under the facts, MEEB’s acts and practices in violation of the FDCPA were not made “in the conduct of any tradе' or commerce” under section 2(a). The 1986 amendment to the FDCPA repealing the ■exemption for attorneys from the definition of a “debt collector” does not alter this factual finding. In reaching the above conclusion, this court is not applying the litigation privilege.
B. FDCPA
MEEB’s challenges to the FDCPA violations found by this court are twofold. First, on the basis of two arguments, it seeks reconsideration of the finding that MEEB violated section 1692i by filing the September 2008 unit 104 suit in Essex Superior Court. (Docket Entry # 69, § IV). Second, MEEB maintains that it did not unlawfully disclose the debt to third parties, i.e., plaintiffs mortgagees, in violation of section 1692c(b) because the
1. Section 1692i
As noted, MEEB moves for reconsideration of the determination that it violated section 1692i by filing the September 2008 unit 104 suit in Essex Superior Court as opposed to Lynn District Court. This court determined that MEEB violated section 1692i by not filing suit in Lynn District Court because Essеx Superior Court was not located in the correct “judicial district or similar legal entity” within the meaning of section 1692L
MEEB proffers two arguments in the Rule 59(e) motion. First, it contends that plaintiff waived the issue of its liability under section 1692L Second, MEEB asserts this court erred by finding it liable. Plaintiff does not address the waiver argument.
Turning to the waiver argument, the “usual rule” is “that parties cannot use Rule 59(e) motions to raise new arguments that could have been made before judgment issued or to undo their own procedural failures.” Venegas-Hernandez v. Sonolux Records,
As explained by the First Circuit in Venegas-Hemandez, in considering a Rule 59(e) motion, it is appropriate to balance the need for the “finality of judgments with the need to render a just decision.” Venegas-Hernandez v. Sonolux Records,
Second, addressing the waiver error at this point is more efficient than having MEEB appeal. See id. Thus, where, as here, the trial court is readily available to correct its own error, “no good purpose is served by requiring” MEEB to appeal to a higher court to be heard on the issue of plaintiffs waiver. See id. (quoting Schildhaus v. Moe,
Third, like the plaintiff in Venegas-Hernandez, plaintiff waived the issue of the availability of Rule 59(e) as a means for MEEB to raise plaintiffs waiver of section 1692i liability for the first time. See id. (proceeding to address Rule 59(e) error in part because the “plaintiffs have waived the issue of the availability of the Rule 59(e) motion to defendant”). Plaintiff did not address the waiver argument in opposing MEEB’s Rule 59(e) motion.
Finally, the need for finality in judgments is not well served by avoiding and bypassing the issue of plaintiffs waiver. Instead, addressing the waiver issue sеrves to render a just decision by allowing MEEB the opportunity to be heard in light of the sua sponte and unforeseen consideration of section 1692i liability by this court. See id. at 190 (noting trial court’s discretion in deciding Rule 59(e) motions requires balancing “need for finality of judgments with the need to render a just decision”). Accordingly, this court turns to the existence of Rule 59(e) relief based on plaintiffs waiver of section 1692i liability and this court’s error in considering such liability sua sponte without addressing or finding the section 1692i liability issue waived.
It is well settled that, “Simply mentioning a possible defense in an initial pleading, without further development in subsequent stages of the proceedings, does not preserve it for post-trial review.” Bennett v. City of Holyoke,
*86 [T]he City did not rely upon this notice defense in the pretrial proceedings, at the trial itself, during the charge conference, or in its motion for judgment as a matter of law. When a party persistently sleeps upon its rights, waiver almost inevitably results ... By the time that the City advanced the defense for the first time in a post-trial motion for relief from judgment, it was too late.
Bennett v. City of Holyoke,
Here, plaintiff mentioned section 1962i liability in a single, short sentence in the complaint.
2. Section 1692c(b)
MEEB next seeks reconsideration of the finding that it violated section 1692c(b) and therefore chapter 93A by disclosing the debt to third parties by sending plaintiff, as opposed to his attorney, letters to plaintiffs mortgagees (Ex. 38, 42, 45, 47, 55, 59, 60, 68 & 69). (Docket Entry # 74). Plaintiff originally cited 17 exhibits (Ex. 17, 38, 41, 42, 45, 46, 47, 48, 53, 54, 55, 59, 60, 68, 69, 71 & 77) to support MEEB’s liability under section 1692c(b). (Docket Entry # 60, § 1(b)).
The Memorandum and Order addresses these alleged section 1692c(b) violations on 911 F.Supp.2d at pages 68 through 73. This court found one timely section 1692c(b) violation in the form of a May 13, 2008 letter (Ex. 69) from MEEB to Neil Heiger, Esq. (“Heiger”), an attorney representing a mortgagee of an April 2005 mortgage for unit 104. The letter represented a lien amount against the unit as $31,309.09. The remaining letters were untimely under the FDCPA, 15 U.S.C. § 1692k(d), and therefоre did not provide a basis for liability under the FDCPA. This court found that the untimely letters, however, could provide a basis for per se chapter 93A liability. MEEB seeks reconsideration of the FDCPA ruling and the chapter 93A ruling with respect to all of the letters (Ex. 38, 42, 45, 47, 55, 59, 60, 68 & 69). (Docket Entry # 69, p. 16).
As explained above, the untimely FDCPA violations do not provide a basis for chapter 93A liability because of the absence of acts or practices by MEEB in the conduct of trade or commerce. That
MEEB’s policy argument that' section 1692c(b) is designed to combat embarrassing communications to a debtor’s friends, neighbors and employer or invade a debtor’s privacy does not survive the statutory text. See Muzuco v. Re$ubmitlt, LLC,
II. PLAINTIFF’S RULE 59(e) MO- - TION
Plaintiff initially moves for reconsideration of the following two factual findings. First, based on the entire record, this court made the factual finding that, “Plaintiffs first mortgagees had not informed Pondview of their names and addresses.”
' This court declines to alter or amend' them. Thus, although a manifest error of fact may provide a basis to allow á Rule 59(e) motion, see Market American Insurance Co. v. Diaz-Santiago,
Plaintiff also moves to amend the judgment regarding the failure to send the mortgagees the 30 day notice letters at least days in advance of filing suit as not violating section 1692d. (Docket Entry # 66, ¶ 2). Section 1692d proscribes “conduct the natural consequence of which is tо harass, oppress or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. In finding no section 1692d liability based on the 30, day notice
With respect to section 1692f liability, plaintiff objects to the finding that the 30 day notice letters did not violate “ 'section 1692fs prohibition of unfair and unconscionable collection methods.’” (Docket Entry # 66) (quoting
For present purposes, this court will assume arguendo that MEEB violated section 6(c) by not sending the letters at least 30 days in advance of filing suit. This failure to adhere to the state statutory procedure, however, is not dispositive of the section 1692d, the section 1692f or the per se or independent chapter 93A violations.
CONCLUSION
MEEB’s Rule 59(e) motion (Docket Entry # 68) is ALLOWED in part and DENIED in part. MEEB is not liable under chapter 93A or section 1692i. Plaintiff remains entitled to $800.00 in statutory damages under Count One but is not entitled to relief under Count Two. The judgment is аmended to eliminate the $10,400.00 in damages under Count Two including prejudgment interest in the amount of $4,649.00. Plaintiffs Rule 59(e) motion (Docket Entry # 66) is DENIED. This court will conduct a status conference to set a briefing schedule for the attorney’s fees issues on September 16, 2013, at 2:30 p.m.
Notes
. The amount of attorneys’ fees remains outstanding.
. Familiarity with the facts, detailed in the November 2012 Memorandum and Order,
. The units are unit 104 and unit 105. Plaintiff was the borrower in the March 2003 and April 2005 mortgages on the units.
. The loan payback charge was either part of a special assessment or a line item in Pond-view’s budget.
. Chapter 183A requires Pondview to assess the common expenses "against all units in accordance with their respective percentages of undivided interest in the common areas and facilities.” Mass. Gen. L. ch. 183A, § 6(a)(i).
. Chapter 183A similarly allows Pondview to assess an unpaid expense incurred by Pond-view because of a unit owner’s failure to abide by the requirements of chapter 183A or a master deed or trust "against the unit owner and such assessment shall constitute a lien against the unit....” Mass. Gen. L. ch. 183A, § 6(a)(ii).
.The complaint in this action summarily asserts that the filing of the suit "in Essex Superior Court violated 15 U.S.C. §§ 1692i.” (Docket Entry # 1, ¶ 35).
. MEEB does not seek reconsideration of this finding. The Rule 59(e) motion cites section 1692c(b), as opposed to section 1692c(a)(l), and it does not refer to or identify exhibit 50. Instead, the motion refers to the letters in "Exhibits 38, 42, 45, 47, 55, 59, 60, 68 and 69” and argues that these letters did not unlawfully disclose the debt to third parties in violation оf section 1692c(b). (Docket Entry .# 69, § V).
. For reasons stated in the previous footnote, MEEB does not seek reconsideration of this finding. These two letters (Ex. 50 & 76) provided a basis for the- statutory award of damages in the amount.of $800.00.
. To the extent the Andrews decision concludes otherwise, see Andrews v. South Coast Legal Services, Inc.,
. This court previously distinguished Berish and Office One because they did not involve per se chapter 93A violations based on the FDCPA.
. This court disagrees with plaintiff’s assessments of the facts in terms of MEEB’s motives and desires to act on behalf of its client.
. As set out in the Memorandum and Order, there was no unfair or deceptive conduct with respect to the timely FDCPA conduct or an independent violation of chapter 93A outside the context of the per se liability based on the untimely FDCPA violations.
. The Memorandum and Order addresses the litigation privilege and the FDCPA’s application to litigation activity.
. It is therefore not necessary to address MEEB’s alternative challenges under Roman numerals II and III in the supporting memorandum (Docket Entry # 69) to its liability under chapter 93A.
. Paragraph 35 reads:
35. From that time until September 19, 2008, Marcus, Errico, prepared, mailed and filed in Lynn District Court and Essex County Superior Court; mailed and recorded in the Essex County Sоuth Registry of Deeds in Salem, Massachusetts; and mailed to McDermott’s mortgagees, eight additional Complaints and Statements and one Amended Complaint which contain the same or similar violations of 15 U.S.C. §§ 1692d, 1692e, and 1692f. The Complaint in Essex Superior Court violated 15 U.S.C. §§ 1692iaswell.
(Docket Entry # 1, ¶ 35).
. The parties filed proposed instructions on the FDCPA claims in anticipation of a jury trial. They agreed to waive a jury trial at a January 24, 2011 hearing.
. Seefn. 16.
. This court did not find that the section 1692i violation caused plaintiff any actual damages. In this court’s discretion, the $800.00 award of statutory damages remains appropriate even without the added section 1692i liability.
. The Memorandum and Order did not find an independent violation of chapter 93A based on the May 13, 2008 letter.
. As previously noted under state law, section 6(c) of chapter 183A requires MEEB to send the 30 day notice letter to the first mortgagee at least 30 days before filing suit "provided that the first mortgagee has informed the condominium association of its name and mailing address.” Mass. Gen. L. ch. 183A, § 6(c). This court did not explicitly find that the failure to send the mortgagees the 30 day notice letters at least 30 days before filing suit violated section 6(c) of chapter 183A. Rather, this court found that MEEB’s failure to send the mortgagees the 30 day notice letters earlier did not violate section 1692d or section 1692f.
. Citing a number of cases, the Memorandum and Order explains that, "Even if MEEB did not comply with section 6(c) by sending the first mortgagees notice 30 days before filing suit, its failure does not necessarily establish a violation of the FDCPA.”