Attorneys who regularly engage in collection work for community
associations have increasingly become
targets for lawsuits filed by professional consumer attorneys under the Fair Debt Collection Practices Act (“FDCPA” or “the Act”), 15 U.S.C. § 1692 et. seq., and analogous state laws.
These suits can be costly, distracting, and can create significant
tensions between HOA attorneys and the management companies and associations they serve.
FDCPA litigation
in this sector appears to be on the rise, and as more people move into planned
communities, it seems unlikely to go away any time soon. For this reason, HOA attorneys who engage in
conduct regulated by the FDCPA should stay abreast of the many recent FDCPA decisions and litigation trends that
can significantly impact their
compliance obligations and litigation risks.
Attorneys should also start an open dialogue on FDCPA risks with the management
companies and associations they serve.
The FDCPA has
been with us for forty years, and it has yielded thousands of published decisions. The case law in this area can be very
frustrating, as it is riddled with circuit splits, unresolved issues, and unpredictable balancing tests which can turn on disputed facts. This post is intended to cover some of the
basic concepts that bear on any FDCPA claim, and to provide a general overview
of litigation trends and risks that may be of special concern to HOA attorneys
and their clients. It was adopted from a
presentation given on the subject at the January 2019 CAI Law Seminar.
Are Unpaid HOA Obligations “Debts” Under
The FDCPA?
Before exploring litigation risks, let’s
start with some of the basics. Are
unpaid homeowner assessments and related charges imposed by HOAs subject to the
FDCPA? This issue can be more nuanced than it might appear at first
glance.
The unpaid obligations owed to your
HOA clients will not always qualify as a “debt” under the FDCPA. The Act defines a “debt” as “any 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. . .” See
15 U.S.C. §1692a(5). If you or your firm
are embroiled in FDCPA litigation, do not concede that a “debt” was incurred
without examining the issue closely.
Determining whether a
“debt” was incurred by a property owner can fact-intensive. This
threshold issue should not be assumed based upon a reading the CCRs or the paperwork documenting the purchase
of the property. See Turner v.Cook, 362 F.3d 1219, 1226-27 (9th Cir. 2004)
(proving existence of a “debt”
under the FDCPA is a “threshold” issue in every FDCPA action).
To the contrary, the determination of whether a “debt” was incurred may
require an examination of “the transaction as a whole, paying particular attention to the purpose for which the credit was extended
in order to determine whether
[the] transaction was primarily consumer or commercial in nature.” See Bloom v. I.C. System, Inc., 972 F.2d 1067, 1068 (9th Cir. 1992) (emphasis added, citation
and quotation marks omitted)
(personal loan from friend used to start software
business not a “debt” under the Act: “Neither
the lender's motives nor the fashion in which the loan is memorialized are
dispositive of this inquiry.”). This may involve not only a review
of documents relating
to the transaction itself, but
also an evaluation of the debtor’s conduct before and after
the obligation was incurred. See Slenk v.
Transworld Sys., Inc., 236 F.3d 1072, 1075 (9th Cir. 2001).
Unpaid HOA assessments relating
to rental properties generally do not
qualify as “debts” under the FDCPA. Although
assessments on properties used as the obligor’s primary residence likely are
“debts” subject to the Act, unpaid obligations imposed on an owner of a rental
property are incurred for business purposes and are not subject to the Act. See, e.g., Lowe v. Maxwell & Morgan,
322 F.R.D. 397 (D. Ariz. 2017) (denying class certification; individualized
inquiries re: use of properties by putative class members); Connelly v. Ekimoto & Morris, LLLC,
2018 WL 33129597 (D. Hawaii July 5, 2018) (unpaid assessments for condo where
plaintiffs did not reside not a “debt”).
Where the plaintiff contends that a rental property was originally
purchased with the intent to reside in it as a primary residence, and the
plaintiff did in fact reside in the property for a period of time, the examination
is even more complicated. Compare Sayeed v. Cheatham Farms Master HOA,
2018 WL 4297480 (C.D. Cal. 2018) (analyzing use of property at the time when
assessments at issue were incurred) with
Haddad v. Alexander, et al 698 F.3d
290 (6th Cir. 2012) (intent of debtor at time of purchase controls).
Most courts have held that fines
imposed by HOAs are not “debts” covered by the FDCPA. See,
e.g., Berg v. Ayesh, 2014 WL 2603890 (D. Kansas 2014) (HOA fines not debts
under FDCPA); Mlnarik v. Smith, Gardner,
Slusky, Lazer, Pohren & Rodgers, LLP, 2014 WL 6657747 (N.D. Cal. Jul.
28, 2014) (fines imposed by HOA did not arise out of “consensual transactions
or business dealings, but a unilateral penalty”). If a fine is not a “debt” than it would
follow logically that attorney’s fees and costs incurred while attempting to
recover the fine also would not be covered.
At least one court, however, has suggested that an HOA fine may qualify
as a “debt” subject to the FDCPA. See Agrelo v. Affinity Management LLC,
849 F.3d 944 (11th Cir. 2016).
Are You Engaged In “Debt Collection”
Under The FDCPA?
Even where a “debt” is involved,
there is still the question of whether you or your law firm are engaged in
“debt collection” under the FDCPA. This may
turn not only on what you are saying or doing, but the context in which the FDCPA
claim arises. Again, HOA practitioners
who are involved in FDCPA litigation should analyze this issue closely.
The Act does not define the term
“debt collection” and the courts have come to different conclusions on what it
means. See Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 460 (6th Cir.
2013) (“Unfortunately, the FDCPA does not define ‘debt collection,’ and its
definition of ‘debt collector’ sheds little light, for it speaks in terms of
debt collection.”) (citations omitted); Gburek
v. Litton Loan Serv. LP, 614 F.3d 380, 384 (7th Cir. 2010) (“Neither this
circuit nor any other has established a brightline rule for determining whether
a communication from a debt collector was made in connection with the
collection of any debt.”). As discussed
below, it is possible that the United States Supreme Court may clarify the
issue this term.
Must a communication (e.g., a letter, pleading, or phone call)
make an express demand for payment of money on a debtor in order to constitute
“debt collection” under the FDCPA? The Ninth
and Tenth Circuits have held said “yes” a collector is not engaged in “debt
collection” under the FDCPA unless the challenged communication makes a demand
for payment of money. See, e.g., Ho v. ReconTrust Co., NA, 840
F.3d 618, 621-623 (9th Cir. 2016) (mailing notice of default and notice of sale
to debtor, which threatened foreclosure, was not attempt to collect money from debtor,
and thus was not “debt collection” under FDCPA; “The notices at issue in our
case didn’t request payment from Ho.”); Obduskey
v. Wells Fargo, 879 F.3d 1216, 1221 (10th Cir.) (following Ho; “Because enforcing a security
interest is not an attempt to collect money from the debtor, and the consumer
has no “obligation . . . to pay money,” non-judicial foreclosure is not covered
under FDCPA) (citations omitted), pet. for cert. granted, 138 S. Ct. 2710
(2018). These cases arose in the context
of non-judicial foreclosures.
Other circuit courts, however,
have held that a communication may amount to “debt collection” under the FDCPA,
even without a demand for payment of money on the debtor. See,
e.g., McCray v. Federal Home Loan Mortg. Corp., 839 F.3d 354, 360 (4th Cir.
2016) (“nothing in [the] language [of the FDCPA] requires that a debt
collector’s misrepresentation [or other violative actions] be made as part of
an express demand for payment or even as part of an action designed to induce the
debtor to pay.”) (citation omitted); Gburek,
614 F.3d at 386 (letter offering to discuss “foreclosure alternatives” was
attempt to collect a debt: “Though it did not explicitly ask for payment, it
was an offer to discuss Gburek’s repayment options, which qualifies as a
communication in connection with an attempt to collect a debt.”); Glazer, 704 F.3d at 461 (FDCPA applied
to judicial foreclosure complaint, despite absence of any allegation that it
made a demand for payment of money on debtor: “Thus, if the purpose of an activity taken in relation
to a debt is to ‘obtain payment’ of the debt, the activity is properly
considered debt collection.”); Kaltenbach
v. Richards, 464 F.3d 524, 526-28 (5th Cir. 2006) (attorney who filed foreclosure
action may be “debt collector” under FDCPA, despite absence of any allegation
that attorney made demand for payment of money).
The Supreme Court may bring some
clarity this term when it hears the Obduskey
case. The Court is expected to address in Obduskey
whether the FDCPA applies to communications made in connection with
non-judicial foreclosure proceedings. The decision in Obduskey may also clarify whether communications that do not
include a request for payment from the debtor are subject to the FDCPA.
Are
You A “Debt Collector” Under The FDCPA?
Even
if you are engaged in “debt collection” relating to a “debt” that is subject to
the FDCPA, there may be an open issue on whether you or your firm qualify as a
“debt collector” under the statute. Once
again, there is no clear test for making this determination. In the even a suit is filed, this analysis
should be done with respect to each named defendant.
The FDCPA applies to any “debt
collector” which the Act defines as “any
person who uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any debts, or who regularly collects or
attempts to collect, directly or indirectly, debts owed or due or asserted to
be owed or due another.” 15 U.S.C. § 1692a(6)
(emphasis added). There is no question
that law firms and attorneys may in certain cases qualify as “debt collectors”
under the Act. See
Heintz v. Jenkins, 514
U.S. 291, 294 (1995).
As
with many things in FDCPA jurisprudence, the courts have not developed any bright
line test for determining what term “principal purpose” or “regularly” means
under the Act. Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1513 n. 5 (9th
Cir. 1994) (“principal purposes” of firm was debt collection when made up 80
percent of firm’s practice); See James v.
Wadas, 724 F.3d 1312, 1317-18 (10th Cir. 2013) (discussing factors used to determine
whether attorney or law firm “regularly” engages in debt collection such as to
qualify as a “debt collector”). Generally
speaking, however, if collection work is a small portion of your own practice, or
your firm’s overall practice, then it makes sense to closely analyze whether
you qualify as a “debt collector” under the statute. See
Reyes v. Julia Place Condominium HOA, 2017 WL 466359 (E.D. La. 2017) (law
firm did not “regularly” collect debts where collection was a small fraction of
firm’s work).
FDCPA Risks Relating To The Balance You Are Collecting
HOA attorneys
face significant FDCPA risks relating to the
balances they seek to collect on behalf of their clients. These risks relate to the way that the
balances are described by attorneys, particularly if the balances may change in
ways that are difficult for attorneys to predict. The risks also relate to errors in the data
that have been supplied to attorneys by their clients.
You would
think that it is safe to accurately list the exact balance due as of the date
of a collection letter. If a balance is going to increase, however, do
you need to explain this to the debtor, and if so, how can you do so safely? Debt collection attorneys have been sued for
implying that an increasing balance was static. See Avila v. Riexinger & Associates, LLC, 817 F.3d 72 (2d Cir.
2016) (letter stating the “current balance” as of the date it was mailed falsely
implied the balance was static). The Avila Court held that stating the “current balance”
in a letter may be misleading under the FDCPA unless the collector also makes clear
to the debtor that the balance will increase. Id.
at 77.
Collectors have also
been sued under the FDCPA, however, for failing to disclose that a static balance
is not increasing. See Taylor v. Financial Recovery Services,
Inc., 886 F.3d 212 (2d Cir. 2018) (collection letter stating “balance due”
need not state the balance was static). Although
the Taylor court soundly and persuasively
rejected the notion that collector is obligated to disclose when a balance is
not going up, other circuits have not yet addressed the issue.
The
problem with accurately describing the balance is not new. The Seventh Circuit in Miller v. McCalla,
Raymer, Padrick, Cobb, Nichols,
& Clark, L.L.C., 214 F.3d 872 (7th Cir.2000),
tried to address the problem when it fashioned
“safe harbor” language that can be used
in that circuit to describe the “amount
of the debt” in circumstances where the account balance
varies from day to day.
The Miller safe harbor language states: “As
of the date of this letter, you owe $ ___ [the exact amount due]. Because of
interest, late charges, and other charges that may vary from day to day, the
amount due on the day you pay may be greater. Hence, if you pay the amount
shown above, an adjustment may be necessary after we receive your check, in
which event we will inform you before depositing the check for collection. For
further information, write the undersigned or call 1-800- [phone number].” Id. at 876.
The
safety of this “safe harbor” language, however, is now an open question,
because collectors have also been sued for using the Miller “safe harbor” language.
See Boucher v. Finance System of
Green Bay, Inc., 880 F.3d 362 (7th Cir. 2018) (“debt collectors cannot
immunize themselves from FDCPA liability by blindly copying and pasting the
Miller safe harbor language without regard for whether that language is
accurate under the circumstances.”). Thus,
collection attorneys should not use the Miller
language in situations where it would make a letter inaccurate.
You
cannot accurately describe the balance if your client has provided you with
inaccurate data to collect. Bad balance
data puts you and your firm at risk under the FDCPA. See,
e.g., Calleja v. Cannon, 2017 WL 362695 (D. Ariz. 2017) (law firm violated
FDCPA where HOA applied payments improperly).
Common FDCPA claims filed against attorneys who have sought to collect
an inaccurate balance arise under section 1692e of the FDCPA, which prohibits
collectors from using false, deceptive or misleading communications, and
section 1692f of the FDCPA, which prohibits any false representation regarding
the character, amount or legal status of any debt.
If the balance information provided by
your client is wrong and you get sued, you may be able to invoke the “bona fide
error” defense under section 1692k(c) of the FDCPA. This defense allows you to avoid liability if
your firm has procedures in place that are reasonably adapted to avoid errors. If your client has consistently sent data
that you know to be inaccurate, however, this increases your FDCPA risks and casts
doubt on any bona fide error defense. See Reichert v. National Credit Servs., Inc.,
531 F.3d 1002 (9th Cir. 2008); see also
Reed v. ASAP Collection Services,
2018 WL 3392101 (N.D. Cal. 2018) (“highly unlikely” that BFE defense will
prevail in light of number of times balances were misstated).
When you seek to collect attorney’s fees for your HOA
clients, this can also present FDCPA risks, as this is a frequent target for
consumer and their attorneys. Courts
have come to different conclusions on whether specific requests for attorney’s fees
violate the FDCPA. See, e.g., Allison v. McCabe Trotter, 2018 WL 3826674 (D.S.C. 2018)
(OK to file notice of lien seeking fees that had not been approved by court); McNair v. Maxwell & Morgan, PC, 893
F.3d 680 (9th Cir. 2018) (application for judicial foreclosure writ stating
attorney’s fees “are now” due violated FDCPA); Carpenter v. Alessi & Koenig, LLC, 2013 WL 5234253 (D. Nev.
2013) (plaintiff failed to prove attorney’s fees sought by defendant’s notices
were unreasonable); Lott v. Vial
Fotheringham, LLP, 2017 WL 4558050 (D. Or. 2017) (FDCPA violated where CCRs
did not allow interest on attorney’s fees).
Filing
Suit In The Correct Venue
Are you suing in the right courthouse? HOA attorneys also face risk relating to
their choice of venue in which to initiate legal actions against
consumers.
The “venue” provisions of the FDCPA says that any collector
“who brings any legal action on a debt against any consumer shall – (1) in the
case of an action to enforce an interest in real property securing the
consumer’s obligation, bring such action only in a judicial district or similar
legal entity in which such real property is located; or (2) in the case of an
action not described in paragraph (1), bring such action only in the judicial
district or similar legal entity – (A) in which such consumer signed the
contract sued upon; or (B) in which such consumer resides at the commencement
of the action.” 15 U.S.C. §
1692i(a).
The appropriate “judicial district”
to bring a “legal action” is the smallest district recognized by the state
court system in which the firm initiates the action. See
Olivia v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 864 F.3d 492 (7th
Cir. 2017). This may differ with the
requirements of state venue law, so HOA attorneys must be careful to ensure
that their suits also satisfy the FDCPA’s venue statute.
If you are facing a wrong venue claim, consider whether
your legal action is “against” the consumer.
Courts have generally held that garnishment actions are “against” the
garnishee, not the consumer. See, e.g., Ray v. McCullough Payne & Haan, LLC,
838 F.3d 1107,
1111 (11th Cir. 2016) (affirming order dismissing claim under
section 1692i against law firm; garnishment proceedings not “against” consumer
under Georgia law); Jackson v. Blitt & Gaines,
P.C., 833 F.3d 860, 864 (7th Cir. 2016) (same result under Illinois law); Hageman v. Barton, 817 F.3d 611, 617-18
(8th Cir. 2016) (same); Smith v. Solomon & Solomon, P.C., 714 F.3d 73, 74-76 (1st Cir. 2013) (same result under Massachusetts
law); Randall v. Maxwell
& Morgan, P.C., 321 F. Supp.
3d 978, 981-984
(D. Ariz. 2018) (same result under Arizona law); Muhammad v. Reese Law Group, 2017 WL 4557194,
at *7 (S.D. Cal. Oct. 12, 2017) (same result under California
law). You should look to your state’s
garnishment laws for guidance.
Overshadowing
Risks
The concept of “overshadowing” can be particularly
frustrating for HOA practitioners, because it is a judicially-created doctrine
that can vary from circuit to circuit.
What exactly is “overshadowing” under the FDCPA? Broadly speaking, it starts with
understanding the notice requirements of section 1692g of the FDCPA, which must
be provided by collectors with their initial written communication with consumers. It is not sufficient for collectors to simply
provide the section 1692g notice.
Collectors must also avoid “overshadowing” the notice by stating or doing
anything during the 30-day validation period that would tend to contradict the
notice or that would confuse a consumer regarding their section 1692g rights.
Overshadowing can be a huge challenge for HOA attorneys who
must also comply with notice obligations required by state law. Once again, court have reached different
results when evaluating overshadowing claims in this context. Compare
Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984 (9th Cir. 2017)
(notice stating “Failure to pay your assessment account in full within
thirty-five (35) days from the date of this letter will result in a lien being
recorded against your property” overshadowed section 1692g notice) with Mahmoud v. De Moss Owners Association, Inc.,
865 F.3d 322 (5th Cir. 2017) (no overshadowing; letter stated nonjudicial
foreclosure would occur unless payment made “on or before the expiration of
thirty (30) days from and after the date hereof”).
The “overshadowing” case law is unpredictable,
and can vary widely from situation to situation and from circuit to
circuit. For example, the Ninth Circuit found
no overshadowing when an attorney made an implied threat of litigation during
the validation period. See Terran v. Kaplan, 109 F.3d 1428, 1430
(9th Cir. 1997) (attorney letter stating “we may find it necessary to recommend
to our client that they proceed with litigation” did not overshadow). By contrast, the Third Circuit in Caprio v. Healthcare Revenue Recovery Grp.,
709 F.3d 142 (3d Cir. 2013), held that a request for a consumer to “please call”
the collector overshadowed the section 1692g notice. Given the wide variety of potential risks, HOA
attorneys should closely review the communications they make and collection practices
they employ during the 30-day validation period.
Risks
Presented By Violation Of State Laws And Compliance With State Laws
HOA
attorneys are obligated to be vigorous advocates for their clients, and they
must ensure that they perfect their client’s rights under the laws and
procedures of the states where they practice.
It would be reasonable for HOA attorneys to believe that they can avoid
liability under the FDCPA if they are simply sending notices that are required
by state law, but unfortunately this has not always been true. See,
e.g., Salewske v. Trott & Trott P.C., 2017 WL 2888998 (E.D. Mich.
Jul. 7, 2017) (FDCPA claims based on notice of foreclosure sale that was
required by state law); McDermott v. Marcus, Errico, Emmer & Brooks,
P.C., 911 F. Supp. 2d 1, 71 (D. Mass. Nov. 20, 2012) (FDCPA claims based on
sending notice to mortgagee required by state law).
Consumer
attorneys will not hesitate to seize on real or imagined violations of state
procedural law and try to “make a federal case out of it” under the FDCPA. See, e.g.,
Lowe v. Maxwell & Morgan, PC, 2018
WL 4693532 (D. Ariz. Sept. 27, 2018) (rejecting argument that law firm was
required to follow state law procedures for posting a bond before proceeding
with garnishment). Even where state law
has been violated, however, the mere failure to comply with state law does not
by itself always establish an FDCPA violation.
See Wade
v. Regional Credit Ass’n, 87 F.3d 1098 (9th Cir. 1996)
(sending collection notice without maintaining license required by state law
did not violate FDCPA).