Camille Haddad v. Alexander, Zelmanski, Danner & Fioritto , 758 F.3d 777 ( 2014 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0153p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CAMILLE HADDAD, ┐
Plaintiff-Appellant, │
│
│ No. 13-2026
v. │
>
│
ALEXANDER, ZELMANSKI, DANNER & FIORITTO, │
PLLC, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit
No. 2:10-cv-11996—Bernard A. Friedman, District Judge.
Decided and Filed: July 16, 2014
Before: SUHRHEINRICH, MOORE, and WHITE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Daniel P. Feinberg, THE MEISNER LAW GROUP, P.C., Bingham Farms,
Michigan, for Appellant. Mark B. Davis, ZELMANKSKI, DANNER & FIORITTO PLLC,
Plymouth, Michigan, for Appellee.
_________________
OPINION
_________________
PER CURIAM. Plaintiff Camille Haddad (“Haddad”) appeals the order of the district
court granting summary judgment to Defendant law firm Alexander, Zelmanski, Danner &
Fioretti, PLLC, (“Firm”) in this action brought under the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et seq., and the Michigan Collection Practices Act (“MCPA”),
Mich. Comp. Laws § 445.251, et seq. We reverse.
1
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I. Background
Haddad bought a unit in Cumberland Condominiums on May 15, 1991. He lived in the
condominium until 2005, and then began renting it out. The Firm represents Cumberland
Condominium Association (the “Association”). Kramer-Triad Management Group LLC
(“Kramer-Triad”) was the Association’s property manager. In October 2008, the Firm, on behalf
of the Association, sent Haddad a notice of delinquency in his condominium assessments. The
letter stated that Haddad owed the association $898, which was composed of $803 in unpaid
assessments, $40 in late charges, and $55 in legal fees and costs. ID# 239. The letter informed
Haddad that if the amount demanded was not paid within thirty days, the association would
begin proceedings to file a lien against the condominium. Lastly, the letter indicated that the
Firm was “attempting to collect a debt from you.” ID# 240.
On November 13, 2008, Haddad notified the Firm that he disputed the amount demanded.
He also stated that he had lived in the condominium for over 15 years and had never missed a
monthly dues payment, but that “[r]ecently,” he had been “singled out and charged with various
violations of the By Laws by K/T [Kramer/Triad] supposedly representing the Board, non [sic]
of which applied to the violation, or had any relevance to it.” ID# 241.
On December 3, 2008, the Firm responded. It sent Haddad a second notice, indicating
that full payment of the outstanding debt should be sent within ten days, or the association would
file a lien against the property pursuant to Mich. Comp. Laws § 559.208(3). The Firm provided
Haddad with a recent copy of his account ledger, beginning January 11, 2008, which had been
prepared by Kramer-Triad. The letter stated in pertinent part:
As you can see from reviewing your account ledger, the balance owed
stems from several late charges that were assessed to your account throughout the
course of this year. Also, there is $55.00 in legal fees due for the October 29,
2008 letter that our office sent to you. You should be aware that, under the
Bylaws, the Association imposes a late charge on all delinquent accounts each
month for as long as any balance remains owing on the account, regardless of
whether or not the monthly assessment payment on the delinquent account was in
fact late in each new month.
The total remaining amount owed on your account at this time is $938.00.
This amount is comprised on the remaining balance as stated on the enclosed
No. 13-2026 Haddad v. AZDF Page 3
account ledger, plus the December monthly assessment of $313.00 and $55.00 in
legal fees and costs.
ID# 297.
Haddad sent another letter to the Firm on December 9, 2008, stating that the December 3
letter failed to explain the beginning balance of $75. He noted that he had spoken with Diane
McEvoy, who said the $75 consisted of $25 for “having a hot water heater in my patio,” but that
“[s]he had no information or proof of the $50.00 balance, nor any details of the subsequent fines
that were assessed.” ID# 301. Haddad indicated that he was withholding payment until the Firm
provided him with “the date, bylaw citation and detailed description of every charge, as well as a
copy of the relevant bylaw.” Id.
On January 20, 2009, the Firm responded by letter and included another ledger. This
ledger began approximately as of August 1, 2006, which showed an initial account balance of
$50. The January 20 letter demanded $1,063 in charges, which consisted of $363 in
condominium assessments, $200 in fines, $400 in late charges, and $100 in legal fees. The letter
stated that the “$363.00 in unpaid assessments on your account is comprised of $313.00 for
January 2009 and the $50.00 remaining balance that existed on your account when Kramer-Triad
took over management of the Association in August 2006.” This letter also pointed out that
“there were several months’ worth of late charges imposed on your account as a result of the
continuing [$50.00] unpaid balance.” ID# 246. The letter provided several pages of the relevant
sections of the condominium bylaws:
Per your request, I have also enclosed copies of several pages containing the
relevant sections of the Condominium Bylaws that authorize the Association to
collect these amounts from you. Specifically, I have enclosed Article II
(regarding the Association’s authority to impose and collect assessments), Article
VI, Sec. 1-2 (regarding leasing of units by co-owners) and Sec. 14 (regarding the
Association’s power to impose all costs of enforcing the Bylaws, including legal
fees and costs, on the defaulting co-owner), and Article XVII, Sec. 1 (regarding
the Association’s power to impose fines and take legal action against co-owners
for Bylaw violations).
ID# 302.
No. 13-2026 Haddad v. AZDF Page 4
On February 23, 2009, Haddad sent another letter, stating that “[t]he $50.00 balance from
the previous management company is unsubstantiated and I believe not valid unless you can
show me why and when it was assessed.” ID# 307. Haddad acknowledged the $25 hot water
violation. Haddad indicated that he was willing to pay the $25 fine for the hot water heater and
the $50 “hold over” from the prior management “if it can be substantiated.” ID# 308.
On May 18, 2009, the Firm sent Haddad a letter itemizing outstanding charges of $1,704,
which consisted of $1,416 in outstanding assessments, $80 in late fees, and $208 in legal fees.
Defendant enclosed a copy of a Notice of Lien it planned to file on behalf of Cumberland
Condominium Association. The $1,416 figure represented the outstanding assessments as
determined by the by-laws of the condominium agreement and the Michigan Condominium Act,
(MCA), Mich. Comp. Laws § 559.208(3)(iii). The Notice of Lien stated that the $1,416 was
“exclusive of any costs, late charges, interest, fines, attorney fees and future assessments.” The
Firm filed the lien, which was recorded with the Oakland County Register of Deeds on May 19,
2009.
On February 19, 2010, the condominium association informed the Firm that “the
Association was going to release the lien on this unit,” and directed to the Firm “to do that.” ID
309. The Firm processed the lien discharge that same day. The discharge was recorded with the
Oakland County Register of Deeds on February 22, 2010.
Haddad sued, pursuant to the FDCPA and MCPA, alleging that the Firm had violated
15 U.S.C. §§ 1692e, which prohibits the use of any false, deceptive or misleading representation
in the collection of any debt, and § 1692g(b), which prohibits continuing the collection of any
disputed debt until the debtor collector obtains verification of the debt. The parties filed cross-
motions for summary judgment. In May 2011, the district court granted summary judgment to
the Firm on the ground that the debt at issue was commercial because Haddad was renting his
property when the Firm began its collection efforts and thus the underlying debt could not be
considered “primarily for personal, family, or household purposes” as defined by the FDCPA.
This court reversed, holding that an obligation to pay assessments arose from the original
No. 13-2026 Haddad v. AZDF Page 5
purchase, not when the collection efforts began, and thus constituted a “debt” under the FDCPA.
See Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 698 F.3d 290 (6th Cir. 2012),
cert. denied, 133 S. Ct. 1726 (2013).
On remand, the parties filed new cross-motions for motions for summary judgment. The
“central issues” before the court were “whether Defendant properly ‘verified’ the debt and
whether Defendant’s actions in collecting the debt were misleading, in violation of the FDCPA
and MCPA.” ID# 386. On June 5, 2013, the district court granted summary judgment to the
Firm finding that the Firm had “properly verified the debt as requested by [Haddad] and as
required by the FDCPA.” ID# 388. The court further concluded that its collection efforts were
not deceptive or misleading, in violation of the FDCPA or MCPA. This appeal follows.
II. Standard of Review
We review the district court’s grant of summary judgment de novo. Bowling Green v.
Martin Land Dev. Co., 561 F.3d 556, 558 (6th Cir. 2009). Summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact
exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a
verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
III. Analysis
A. Law of the Case
In the previous appeal, we stated that “the Firm did not verify the debts and recorded a
Notice of Lien in May 2009.” Haddad, 698 F.3d at 292. Haddad claims that the district court
erred in characterizing this statement as dicta and granting summary judgment to the Firm on this
issue.
The law of the case prevents the relitigation of an issue once it has been decided. Bowles
v. Russell, 432 F.3d 668, 676 (6th Cir. 2005), aff’d, 551 U.S. 205 (2007). But the doctrine
No. 13-2026 Haddad v. AZDF Page 6
applies only if the appellate court “either expressly or by necessary implication decides an
issue.” Id. (internal quotation marks and citation omitted). If the statement is not necessary to
the outcome, it is dicta and nonbinding. United States v. McMurray, 653 F.3d 367, 375-76 (6th
Cir. 2011).
The district court correctly concluded that the foregoing statement was not necessary to
the outcome of the earlier appeal and therefore not binding. The sole issue in our earlier appeal,
as articulated at the outset of the opinion, was “whether an assessment owed to a condominium
association qualifies as a ‘debt’ under the . . . [FDCPA], . . . where the condominium owner
bought the property for his personal use, resided there for fifteen years, and now leases the
condominium.” Haddad, 698 F.3d at 291.
Haddad argues that this court addressed this question only after it had concluded that the
Firm had failed to verify the debt, and that “if this court had not already concluded that [the
Firm’s] conduct was violative [sic] of the FDCPA, the question of whether or not the debt was a
consumer debt would have been moot.” Appellant’s Br. at 17. The opposite is true. If there was
no “debt” as defined by the FDCPA, then the Firm’s conduct, no matter how egregious, could
not have violated the FDCPA. The prior panel made no findings of fact regarding verification of
the debt or lack thereof. Thus, the district court properly took up the issue on remand. See
Kavorkian v. CSX Transp., Inc., 117 F.3d 953, 958-59 (6th Cir. 1997) (“The trial court is free to
consider any issues not decided ‘expressly or impliedly by the appellate court.’” (citation
omitted)).
This brings us to Haddad’s second contention.
B. Failure to Verify the Debt
Haddad argues that the Firm did not adequately verify the debt as required in 15 U.S.C.
§ 1692g(b). As there are no material factual disputes about the course of events, he asks this
court to reverse the grant of summary judgment for the Firm and instead grant summary
judgment in his favor, a motion denied by the district court.
Under 15 U.S.C. § 1692g(b), “[i]f the consumer notifies the debt collector in writing”
within thirty days of receiving “communication . . . in connection with the collection of any
No. 13-2026 Haddad v. AZDF Page 7
debt,” that he disputes any portion of the debt, “the debt collector shall cease collection of the
debt, or any disputed portion thereof, until the debt collector obtains verification of the debt . . .”
15 U.S.C. § 1692g. The statute, however, does not specify what the process of “verification”
requires. “When a term is undefined, we give it its ordinary meaning.” United States v. Santos,
553 U.S. 507, 511 (2008)). “‘As in all cases of statutory construction, our task is to interpret the
words of [the statute] in light of the purposes Congress sought to serve.’” Dickerson v. New
Banner Inst., Inc., 460 U.S. 103, 118 (1983) (quoting Chapman v. Houston Welfare Rights Org.,
441 U.S. 600, 608 (1979)).
The legislative history provides limited guidance, stating simply that:
Another significant feature of this legislation is its provision requiring the
validation of debts. After initially contacting a consumer, a debt collector must
sent [sic] him or her written notice stating the name of the creditor and the amount
owed. If the consumer disputes the validity of the debt within 30 days, the debt
collector must cease collection until he sends the consumer verification.
This provision will eliminate the recurring problem of debt collectors dunning the
wrong person or attempting to collect debts which the consumer has already paid.
Since the current practice of most debt collectors is to send similar information to
consumers, this provision will not result in additional expense or paperwork.
S. Rep. No. 95-382, at 4 (1977), reprinted in 1977 U.S.S.C.A.N. 1695, 1699.
While there are several dictionary definitions of verification, they too provide only
limited insight. See Summit Petroleum Corp. v. U.S. EPA, 690 F.3d 733, 741-42 (6th Cir. 2012)
(“This Court, and others as well, have often consulted dictionaries to ascertain the meaning of
words.”). For example, two definitions of verification, “evidence that establishes or confirms the
accuracy or truth of something” and “the process of research, examination, etc., required to prove
or establish authenticity or validity,” Random House Unabridged Dictionary 2113 (2d ed. 1993),
strongly suggest that to verify a debt, the debt collector must seek out and provide evidence that
the actual debt amount is what is owed. On the other hand, two other definitions, “a formal
assertion of the truth of something, as by oath or affidavit” and “a short confirmatory affidavit at
the end of a pleading or petition,” id., suggest that verification is simply a matter of formalism—
providing an official statement of what is being asserted. Thus, a dictionary provides only
No. 13-2026 Haddad v. AZDF Page 8
limited direction in determining the extent of what verification under 15 U.S.C. § 1692g(b)
requires.
Our circuit has not dealt with the issue of what verification under 15 U.S.C. § 1692g(b)
requires. The leading opinion—and one of very few in the courts of appeal—appears to be the
Fourth Circuit’s Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999). The Fourth Circuit
stated:
[V]erification of a debt involves nothing more than the debt collector confirming
in writing that the amount being demanded is what the creditor is claiming is
owed; the debt collector is not required to keep detailed files of the alleged debt.
See Azar v. Hayter, 874 F. Supp. 1314, 1317 (N.D. Fla.), aff'd, 66 F.3d 342 (11th
Cir. 1995), cert. denied, 516 U.S. 1048 (1996). Consistent with the legislative
history, verification is only intended to “eliminate the . . . problem of debt
collectors dunning the wrong person or attempting to collect debts which the
consumer has already paid.” S. Rep. No. 95–382, at 4 (1977), reprinted in
1977 U.S.C.C.A.N. 1695, 1699. There is no concomitant obligation to forward
copies of bills or other detailed evidence of the debt.
Id. at 406.1 However, in Chaudhry, the debt collector there actually provided far more to the
debtor as part of the verification than this bare minimum that the Fourth Circuit panel said was
required. As the panel recited:
In the present case, [the debt collector], after receiving assurances from
[the creditor] that the sums were owed, verified the debt amounts in his January
18th letter to Plaintiffs’ counsel and forwarded a copy of the [creditor]’s
computerized summary of the Chaudhrys’ loan transactions. The summary
included a running account of the debt amount, a description of every transaction,
and the date on which the transaction occurred. See Graziano v. Harrison,
950 F.2d 107, 113 (3d Cir. 1991) (holding that computer printouts which
confirmed amounts of debts, the services provided, and the dates on which the
debts were incurred constituted sufficient verification).
Chaudhry, 174 F.3d at 406. Thus, the court held that the verification requirements under
15 U.S.C. § 1692g(b) were met where the debt collector “forwarded a copy of the [creditor]’s
1
In Smith v. Transworld Sys., Inc., 953 F.2d 1025 (6th Cir. 1992), we stated that no “independent
investigation” is required under the FDCPA. Id. at 1032. This statement, however, referred to determining whether
the amount demanded by the collector was accurate in order to avoid liability under 15 U.S.C. § 1692e(2)(A) by
falsely representing the amount of the debt. With regard to verification under 15 U.S.C. § 1692g(b), the Smith court
simply restated the statutory purpose as articulated by the district court in that case: “requir[ing] debt collecting
agencies to cease collection activities if the amount has been disputed until the debt collector verifies the accuracy of
the amount claimed.” Id. at 1031.
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computerized summary of the Chaudhrys’ loan transactions. . . . includ[ing] a running account of
the debt amount, a description of every transaction, and the date on which the transaction
occurred.” Id.
In Mahon v. Credit Bureau of Placer County Inc., 171 F.3d 1197 (9th Cir. 1999), a Ninth
Circuit panel acknowledged in dicta that a creditor had “properly verified the debt” where, in
response to a debtor’s request for verification, the debt collector contacted the creditor, “verified
the nature and balance of the outstanding bill, learned that monthly statements had been sent . . .
to the [debtor] for over two years, and established that the balance was still unpaid. The [debt
collector] then promptly conveyed this information to the [debtor], along with an itemized
statement of the account.” Id. at 1203. In a subsequent Ninth Circuit case, a different panel was
asked “to hold that Mahon sets a standard below which a debt collector’s verification efforts
must not fall.” Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1173 (9th Cir. 2006).
The Clark court characterized the Mahon dicta as “one way to provide verification,” but
“decline[d] to impose such a high threshold.” Id. Instead, it explicitly “adopt[ed] as a baseline
the more reasonable standard articulated by the Fourth Circuit in Chaudhry.” Id. Yet, even in
Clark, the debt collector did far more than verify in writing that the amount the debt collector is
seeking is the amount the creditor claims is owed. Instead, the debt collector, when asked for
verification, “obtained information from [the creditor] about the nature and balance of the
outstanding bill and provided the [debtor] with documentary evidence in the form of the itemized
statement.” Id. at 1174.
The Third Circuit similarly approved of the practice of providing an itemized accounting
as verification of the debt. In Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991), the debt
collector sent a notice stating the name of the creditor and the amount of the unpaid debt ($80).
Id. at 109. The debtor requested verification of the debt. The verification listed a different date
and described the services provided as “E.R. Extended Service.” Id. Enclosed with the
verification was a bill and computer printout for an additional debt of $35 for services provided
on another date. Id. A Third Circuit panel held that the debt collector satisfied the verification
requirement, because “[t]he computer printouts provided to [debtor] were sufficient to inform
No. 13-2026 Haddad v. AZDF Page 10
him of the amounts of his debts, the services provided, and the dates on which the debts were
incurred.” Id. at 113.
A decision from the Eighth Circuit confirms that the verification requirement is satisfied
where the debtor “could sufficiently dispute the payment obligation.” Dunham v. Portfolio
Recovery Assocs., LLC, 663 F.3d 997, 1004 (8th Cir. 2011). There, the debt collector, a debt
collection agency that purchased debt portfolios, responded to a verification request with a letter
containing “the debtor’s name, address, and the last four digits of the debtor’s social security
number; the date of the payment obligation; the date [the debt collector] purchased the payment
obligation [from the original creditor]; and the current outstanding balance on the payment
obligation.” Id. at 999. However, the debt collector did not contact the original creditor and did
not send “the original amount of the debt, the date upon which the debt was incurred, or the
goods or services for which it was incurred.” Id. at 1000 (internal quotation marks omitted).
However, upon receipt of the verification letter, the debtor “immediately recognized that the last
four digits of the debtor’s social security number did not match his own,” id., and thus “[a]t that
point” did not fear that he owed any debt. Id. The debtor argued on appeal that “verification”
meant that the debt collector “must acquire additional information about the debtor from the
original creditor and send that additional information to [the debtor].” Id. at 1003. The Eighth
Circuit held that the verification was sufficient because, “[c]onsistent with the legislative
history,” the debt collector “sent [the debtor] enough information to put him on notice that it
dunned the wrong person.” Id. at 1003. Significantly, the court noted that “[u]nder different
facts, perhaps a debt collector must do more than what [the debt collector] did here.” Id. at 1003.
The Eighth Circuit remarked that its conclusion was supported by “[s]everal of our sister
circuits,” declining to set a high threshold, citing Chaudhry’s baseline standard and Clark’s
adoption of that standard. Id.
These cases suggest that the “baseline” for verification is to enable the consumer to
“sufficiently dispute the payment obligation.” Although the answer to that question depends on
the facts of a particular situation, the cases reflect that an itemized accounting detailing the
transactions in an account that have led to the debt is often the best means of accomplishing that
objective. Intuitively, such a practice makes good sense. In fact, it would likely lead to faster
No. 13-2026 Haddad v. AZDF Page 11
resolutions of disputes with those consumers who act in good faith, because it will either show a
valid debt that a consumer acting in good faith will actually pay, uncover an error in the record
of the debt leading to the cancellation of the debt, or reveal the underlying dispute between the
parties that can then be resolved. Finally, such an approach is consonant with the congressional
purpose of the verification provision.
In the present case, the Firm actually attempted to send an itemized accounting. When
presented with a collection attempt in October 2008, Haddad disputed the debt. The Firm
responded by sending the first accounting ledger on December 3, 2008. After he received this
accounting, Haddad disputed a portion of the debt—the carryover balance of $75.2 The Firm
sent a further accounting on January 20, 2009, but it once again included a carryover balance of
$50 with no explanation as to the nature of the debt other than it was “the $50 remaining balance
that existed on your account when Kramer-Triad took over management of the Association in
August 2006.” Haddad once again disputed this now-$50 carryover portion of the debt.
The Firm did not respond with any explanation such as a date or description of the nature
of the charge. Instead, it filed a lien against Haddad’s condominium; the lien encumbered
Haddad’s property rights for nine months. Because Haddad never received an accounting from
the debt collector that showed why he was alleged to owe the original $50 charge, from which all
subsequent late fees, fines, and attorney’s fees flowed, he was unable to “sufficiently dispute the
payment obligation.” Dunham, 663 F.3d at 1004. Therefore, he was put to a choice. As he
could not dispute the debt owed based on the information the Firm provided, he could either pay
an amount he did not believe he owed or face the encumbrance of his property rights.
Such verification cannot be enough under the FDCPA, a statute intended to protect
consumers. The verification provision must be interpreted to provide the consumer with notice
of how and when the debt was originally incurred or other sufficient notice from which the
consumer could sufficiently dispute the payment obligation. This information does not have to
2
The statutory language provides that a consumer can dispute not only the whole debt, but also “any
portion thereof.” 15 U.S.C. § 1692g(b). This language suggests that a debt collector cannot simply assert an
unqualified amount that a consumer owes a creditor. After all, the words “or any portion thereof” would be
superfluous if a consumer, like Haddad, disputes a portion of the debt and asks for verification of that portion, and
the creditor simply replies that he has verified that the entire amount (not the portion disputed) is the correct total
amount owed according to the creditor.
No. 13-2026 Haddad v. AZDF Page 12
be extensive. It should provide the date and nature of the transaction that led to the debt, such as
a purchase on a particular date, a missed rental payment for a specific month, a fee for a
particular service provided at a specified time, or a fine for a particular offense assessed on a
certain date.
Such a notice requirement has the advantage of providing a clear standard that courts are
accustomed to enforcing and can apply easily. Moreover, in today’s world of computerized
records management, it would not be a significant burden to debt collectors or creditors to
provide such a record.3 After all, that is precisely what the debt collector did in Clark in 2006, in
Mahon and Chaudhry, both cases from 1999, and even in Graziano, a case from 1991.
Here too, the Firm attempted to do just that by sending two different statements of
account. Haddad, however, disputed a portion of the debt—the carryover portion that was
unexplained on these statements and which actually led to the rest of the charges. The Firm
failed to verify this portion of the debt yet continued its efforts to collect this portion as well as
the entirety by sending a letter demanding payment and placing a lien on Haddad’s
condominium. In doing so, the firm violated 15 U.S.C. § 1692g(b). On the question whether the
Firm properly verified the debt, we reverse the grant of summary judgment for the Firm and
grant summary judgment for Haddad.
C. Misleading Statements
Lastly, Haddad alleges that the Firm misrepresented the character and amount of the lien,
by including late charges and attorney fees in unpaid assessments because the Michigan
Condominium Act, Mich. Comp. Laws § 559.208(3)(iii) (“MCA”), says that the Notice of Lien
shall set forth the amounts due, “exclusive of interest, costs, attorney fees, and future
assessments.” Section § 1592e prohibits a debt collector from using “any false, deceptive, or
misleading representation or means in connection with the collection of any debt.”
This issue was adequately answered by the district court:
3
As previously mentioned, we believe that providing the date and nature of the transaction that led to the
debt will lead to faster resolutions of disputes. The practice of debt collectors providing such an accounting suggests
that they likely expect such a benefit as well.
No. 13-2026 Haddad v. AZDF Page 13
However, Defendant indicated in the letter accompanying the lien notice that the
outstanding debt was characterized in this way in order to comply with the MCA,
which requires that the lien amount only include outstanding assessments but no
fines or legal fees. See Mich. Comp. Laws § 559.208(3)(iii). The condominium
by-laws provide that payments be applied first to late fees, fines, and legal fees
and only thereafter to outstanding assessments. See Pl Br. Ex. I. Therefore, [the
Firm’s] lien filing in the amount of $1,416 arising from outstanding association
fees reflects the by-laws of the association agreement and the MCA’s
requirements. This information was included in the communication to [Haddad]
clarifying the reason for the change in formulation in contrast to the verification
letters which showed the specific charges that gave rise to the outstanding
balance.
ID# 394.
Haddad argues that application of the payments in the manner prescribed by the bylaws
violates the MCA, but provides no authority for that assertion. This argument is without merit in
any event. The FDCPA expressly authorizes such conduct. Section 1692f(1) prohibits debt
collectors from using “unfair or unconscionable means to collect any debt,” including “the
collection of any amount (including any interest, fee, charge, or expense incidental to the
principal obligation) unless such amount is expressly authorized by the agreement creating the
debt or permitted by law.” Id. (emphasis added). Cf. Rizzo v. Pierce & Assocs., 351 F.3d 791,
793-94 (7th Cir. 2004) (holding that collection of late fees under the mortgage and note did not
violate the FDCPA because the terms of the note and mortgage explicitly required payment of all
sums which would be due had no acceleration occurred).
Haddad also contends that “the vacillating amounts set forth in [the Firm’s] various
letters” were false and misleading. As the district court held, the Firm’s December and January
2009 verification letters accurately delineated exactly which late fees, fines, attorney fees, and
association fees went into the outstanding balance in accordance with the bylaws: first to fines
and late fees and the remainder to association fees. As the court noted, the statements showed
how the outstanding balances were calculated by showing the charges arising from each new
entry and how subsequent payments were applied to the updated outstanding balance, and that
“these entries track the balance and itemizations that [the Firm] communicated in its collection
letters.” ID# 393. Thus, as the district court indicated, “a careful reading” of the Firm’s
communications, “even by an unsophisticated consumer, would have led to the conclusion that
No. 13-2026 Haddad v. AZDF Page 14
the amounts were accurate as reflected in the accompanying statements[.]” ID #393.4 We
AFFIRM the court’s grant of summary judgment to the Firm on this issue.
IV. Conclusion
For the foregoing reasons, the grant of summary judgment to the Firm is REVERSED
and summary judgment to Haddad is GRANTED. The matter is REMANDED to the district
court for further proceedings consistent with this opinion.
4
Haddad does not present an argument regarding the application of the MCPA, so any claim under that
statute is forfeited.