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Owoh v. Sena

United States District Court, D. New Jersey

March 6, 2018

ROTIMI OWOH, et al., Plaintiffs,
v.
JASON S. SENA and CUTOLO MANDELL LLC, Defendants.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         Presently before the Court are three motions: Plaintiff Rotimi Owoh's motion for leave to appeal the Court's July 5, 2017 order (ECF No. 43); Defendants Jason S. Sena and Cutolo Mandell LLC's motion for summary judgment (ECF No. 46); and Plaintiffs cross-motion for summary judgment (ECF No. 57). For the reasons discussed herein, Defendants' motion for summary judgment is granted and Plaintiffs motions are denied as moot.

         Background

         This matter arises from Defendants' alleged violation of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692, et seq. (FDCPA), and the United States Bankruptcy Code. Plaintiff contends that Defendants, both of whom are engaged in debt collection, sought to collect debt that was previously discharged in a bankruptcy proceeding and have since filed a lien on his property, in an effort to collect this debt.

         Plaintiff owns a condominium in Ravens Crest East at Princeton Meadows Condominium Association, Inc. (the "Association"), in Plainsboro, New Jersey. (Defendant's Statement of Material Facts [DSOMF] at ¶ 1). Article 7 of the Master Deed for the Association sets forth each unit owner's obligation to pay designated fees or special assessments:

Section 7.1 Creation of the Lien. Every Unit Owner by acceptance of a deed or other conveyance for a Unit, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree to pay Association Fees, by way of annual or special assessments or charges as hereinafter more particularly described. All Association Fees, together with such interest thereon, late charges, and cost of collection thereof (including reasonable attorneys' fees) shall be a continuing lien upon the Unit against which each such assessment is made and shall also be the personal obligation of the Owner of such Unit at the time when the assessment falls due.

(ECF No. 46-2 at 12).

         In June 2009, the Association obtained a $5.5 million unsecured loan from Capital One Bank to finance the costs of an ongoing renovation process of the Association's buildings and grounds. (DSOMF at ¶ 2). Plaintiff was not a party to this loan. (Id. at ¶ 3). However, to repay the loan, the Association charged a special assessment to each unit owner of the Association, and provided owners with a "Frequently Asked Questions" pamphlet, which explained the conditions of the Association's loan, and the options that unit owners had in paying their respective shares. (Id. at ¶ 6; ECF No. 46-2 at 36). The Association also explained that because the loan was made between it and Capital One Bank, the loan would not affect any unit owner's credit report; however, failure to pay the special assessment might. (ECF No. 46-2 at 38). Unit owners, including Plaintiff, were presented with the option of: (1) paying the Special Assessment in full ($10, 102.00) by September 1, 2009; (2) remitting monthly payments of $123 for a period of "10 years ... at a fixed interest rate of 6.80%"; or (3) paying 25% down and a reduced monthly payment for a period of ten years. (DSOMF at ¶ 7). On July 2, 2009, Plaintiff elected to remit payments of the Special Assessment over a period often years at the rate of $123 per month, or a total amount owing of $14, 760. (Id. at ¶ 8).

         Beginning in early 2013, Plaintiff was unable to timely pay the monthly special assessments, and he stopped paying altogether in April 2013. (ECF. No. 46-2 at ¶ 17). On September 30, 2014, Plaintiff filed for Chapter 7 bankruptcy. Within his bankruptcy filing, Plaintiff listed his outstanding debts, including a $25, 000 claim owed to "Community Association Bank - Mutual of Omaha" with a description of "Revens [sic] Crest Renovation Project Loan (not sure of balance)." (Id. at 56). This filing also reflected another claim of $8, 250.48 owed to Executive Property Management, which described the debt as "Ravens Crest Condo Association fees." (Id. at 57).

         According to Plaintiff, his debts were discharged on January 9, 2015, by Order of the Bankruptcy Court; this discharge apparently included the debt identified as "Community Association Bank, " which represents the amount owed to Capital One Bank by the Association. However, this is questionable since the Association executed the loan with Capital One Bank, and the Association agreed to have Plaintiff pay a special assessment for ten years. As such, this loan was not an outstanding debt of Plaintiff s. Secondly, identifying the alleged debt as "Community Association Bank, " rather than as Capital One Bank, may have been insufficient to give creditors appropriate notice of the bankruptcy proceeding.

         On October 7, 2015, Plaintiff received a collection letter from the law firm of Cutolo Mandel LLC, signed by an associate, Jason S. Sena. (ECF No. 48-1 at 56). In this letter, Defendants explained that, as of October 1, 2015, Plaintiff owed the Association $4, 944.00 and additional attorney's fees and costs of $116.64, for a total debt of $5, 060.64 from the day of his bankruptcy filing. (Id.). Plaintiff responded to this letter two days letter, disputing any owed debt given his bankruptcy discharge and requesting verification of his debt. (DSOMF at ¶ 18). One week later, on October 16, 2015, Defendants provided Plaintiff with a copy of his occupant ledger with the Association, which outlined his current balance. (ECF No. 48-1 at 31). Plaintiff continued to contend that he was no longer responsible for paying the special assessment, since these debts were discharged as part of the bankruptcy proceeding, and objected to payment of any late fees, since the Association failed to provide him with an accounting of amounts due. (DSMOF at ¶ 21). In a letter dated November 6, 2015, Defendants explained to Plaintiff that, under the United States Bankruptcy Code, he remained liable for payment of the special assessments that were due and payable after his bankruptcy filing. (ECF No. 48-2 at 4). Additionally, it was explained that Plaintiff remained responsible for any late fees imposed under to the New Jersey Condominium Act and the Association's Master Deed. (Id.).

         On April 8, 2016, Defendants wrote to Plaintiff, notifying him that "[t]he Association directed [the firm] to prepare and record a lien against your property reflecting outstanding maintenance fees, late charges, special assessments, accelerated maintenance through 2016 and attorney fees and costs." (ECF No. 48-1 at 18). Plaintiff continued to dispute his payment obligations, contending the Chapter 7 bankruptcy discharged him of his payment duties, and requested accounting that corresponded to his purportedly owed debts. (DSOMF at ¶ 29).

         On May 21, 2016, Plaintiff received a copy of the recorded lien against his property, which was recorded in Middlesex County on May 11, 2016. (ECF No. 48-1 at 27). In a cover letter, Defendants explained to Plaintiff that, "[u]ntil such time as you pay the Association all amounts due, you will be unable to convey clear title to your unit." (Id.). The lien included only the amounts that became due after the filing of the September 30, 2014 bankruptcy petition:

Maintenance Fees (10/2014 - 4/2016) $4, 708.00
Renovation Project / Special Assessment (10/2014 - 4/2016) $2, 318.00
Late Fees $ 270.00
Accelerated Maintenance (4/2016-12/2016) $2.072.00
TOTAL ASSESSMENT FEES & LATE FEES DUE $9, ...

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