Michael Ogbin v. Fein, Such, Kahn and Shepard

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 09-2829
MICHAEL OGBIN; LYNN OGBIN, individually and as a class
representative On behalf of others similarly situated,
Appellant
v.
FEIN, SUCH, KAHN AND SHEPARD, P.C.;
JOHN DOE 1-100; JOHN DOE SERVICES 1-100
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-08-cv-04138)
District Judge: Honorable Dennis M. Cavanaugh
Argued June 29, 2010
Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges
(Filed: February 22, 2011)
Lewis G. Adler (Argued)
Woodbury, N.J. 08096
Attorney for Appellant
Gregory E. Peterson
Andrew C. Sayles (Argued)
Connell Foley
Roseland, N.J. 07068
Attorneys for Appellee
____
OPINION
SLOVITER, Circuit Judge.
This case presents the same two questions of law that we recently decided
in Allen v. LaSalle Bank, N.A., --- F.3d ----, No. 09-1466, 2011 WL 94420 (3d Cir.
Jan 12, 2011): (1) whether a communication from a debt collector to a
consumer=s attorney is actionable under ' 1692f(1) of the Fair Debt Collection
Practices Act (AFDCPA@); and (2) whether the New Jersey litigation privilege
absolves a debt collector of liability under the FDCPA. The District Court here
concluded that communications to attorneys are not actionable under the FDCPA
and that the New Jersey litigation privilege creates an exemption to liability
thereunder. In accordance with our decision in Allen, we will affirm in part,
vacate in part, and remand for further proceedings.1
Law firm Fein, Such, Khan and Shepard, P.C. (AFSKS@) filed a foreclosure
action on behalf of loan servicer, West Coast Realty, LLC (AWCRSI@), against
Michael and Lynn Ogbin after they defaulted on the second mortgage on their
home. At the request of the Ogbins= attorney, FSKS sent two letters (the APayoff
Letters@) to the attorney for the Ogbins during the pendency of the foreclosure
proceedings. The first letter set forth the outstanding principal and interest owed
1
The District Court had jurisdiction under 28 U.S.C. ' 1331 and this court has
jurisdiction under 28 U.S.C. ' 1291.
2
on the loans and FSKS=s attorney=s fees and costs. The second letter revised
the first and itemized FSKS=s attorney=s fees and costs associated with the
foreclosure action.
The Ogbins and WCRSI subsequently settled the foreclosure action.
Thereafter, the Ogbins filed a class action complaint against FSKS, alleging that
FSKS violated the FDCPA and asserting common law claims. Specifically, the
complaint alleged that the Payoff Letters violated ' 1692f(1) of the FDCPA
because they contained charges for which FSKS could not legally collect under
state law or the mortgage contract, and because they contained overcharges in
violation of various state statutory caps and/or were in excess of what was
actually owed. See 15 U.S.C. '' 1692f, 1692f(1) (AA debt collector may not use
unfair or unconscionable means to collect or attempt to collect any debt@ including
A[t]he collection of any amount . . . unless such amount is expressly authorized by
the agreement creating the debt or permitted by law.@). The complaint also
asserted claims of negligence and intentional misrepresentation based upon the
alleged misstatements in the Payoff Letters.
The District Court dismissed the complaint on FSKS=s motion to dismiss for
failure to state a claim upon which relief could be granted pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Ogbin v. Fein, Such, Kahn &
Shepard, PC, No.
08-cv-4138, 2009 WL 1587896 (D.N.J. June 1, 2009). In doing so, the Court
3
held that the Ogbins= common law claims of intentional misrepresentation and
negligence were barred by the New Jersey litigation privilege and similarly failed
because the complaint did not allege any cognizable damages stemming from the
alleged overcharges. Id. at *3. The Court also concluded that the Ogbins=
negligence claim was lacking on the basis that FSKS did not owe the Ogbins a
duty of care because the Ogbins were represented by counsel in an action in
which they were adverse to FSKS. Id. at *4. With respect to the Ogbins=
FDCPA claims, the Court held that they were barred by the New Jersey litigation
privilege, and alternatively that the Payoff Letters, which were sent to the Ogbins=
attorney, were not actionable under the FDCPA. Id. at *2, *4. The Ogbins
appeal.2
There was no error in the District Court=s conclusion that the Ogbins failed
to state common law claims of intentional misrepresentation and negligence.
The Payoff Letters, which were sent by FSKS during the pendency of the
foreclosure proceedings for the purpose of facilitating those proceedings, fall
squarely within the scope of the New Jersey litigation privilege. See Hawkins v.
Harris, 661 A.2d 284, 289 (N.J. 1995) (AThe absolute privilege applies to >any
2
We conduct a plenary review of the District Court=s order granting a motion to
dismiss for failure to state a claim. Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d
187, 190 (3d Cir. 2009). We accept all factual allegations in the complaint as true,
construe it in the light most favorable to the Ogbins, and determine whether, under any
reasonable reading of the complaint, the Ogbins may be entitled to relief. See id.4
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants
or other participants authorized by law; (3) to achieve the objects of the litigation;
and (4) that have some connection or logical relation to the action.=@) (quoting
Silberg v. Anderson, 786 P.2d 365, 369 (Cal. 1990)). Because the Ogbins=
common law claims are precluded by the litigation privilege, they cannot be the
subject of liability against FSKS. See Rickenbach v. Wells Fargo Bank, N.A.,
635
F. Supp. 2d 389, 401 (D.N.J. 2009) (A[T]he litigation privilege protects attorneys
not only from defamation actions, but also from a host of other tort-related
claims.@) (quotation omitted). Accordingly, we will affirm that part of the District
Court=s judgment dismissing the Ogbins= claims of intentional misrepresentation
and negligence.
On the other hand, this court=s decision in Allen requires remand of the
Ogbins= FDCPA claims. In Allen, we concluded on substantially similar facts as
alleged here, that letters to a debtor=s attorney are actionable under ' 1692f(1) of
the FDCPA if those letters attempt to collect any amount not expressly authorized
by the agreement creating the debt or permitted by law. --- F.3d at ----, 2011 WL
94420, at *4. We also concluded that the New Jersey litigation privilege does
not absolve a debt collector from FDCPA liability. Id. In light of Allen, we will
vacate and remand that part of the District Court=s judgment dismissing the
Ogbins= FDCPA claims. We leave to the District Court to determine whether the
amounts FSKS sought in the Payoff Letters are not permitted by the agreement
authorizing the Ogbins= debt or by state law, such that the Ogbins have stated
viable claims under ' 1692f(1) of the FDCPA.
Accordingly, we will affirm in part, vacate in part, and remand for further
proceedings.