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McNair v. Maxwell & Morgan PC

United States Court of Appeals, Ninth Circuit

June 25, 2018

Martha A. McNair, an individual, Plaintiff-Appellant,
v.
Maxwell & Morgan PC, an Arizona professional corporation; Charles E. Maxwell, husband; W. William Nikolaus, husband; Lisa Maxwell, wife; Leslie Nikolaus, wife, Defendants-Appellees.

          Argued and Submitted September 14, 2017 San Francisco, California

          Appeal from the United States District Court for the District of Arizona, No. 2:14-cv-00869-DGC David G. Campbell, District Judge, Presiding

          Douglas C. Wigley (argued) and Jonathan A. Dessaules, Dessaules Law Group, Phoenix, Arizona, for Plaintiff-Appellant.

          Robert Travis Campbell (argued), Jeffrey A. Topor, and Tomio B. Narita, Simmonds & Narita LLP, San Francisco, California, for Defendants-Appellees.

          Before: Jay S. Bybee [*] and Michelle T. Friedland, Circuit Judges, and Janet Bond Arterton, District Judge. [**]

         SUMMARY [***]

         Fair Debt Collection Practices Act

         The panel affirmed in part and reversed in part the district court's grant of summary judgment in favor of the defendants on plaintiff's claims that the defendants, including a law firm, violated the Fair Debt Collection Practices Act in their efforts to collect unpaid homeowner association assessments and other charges that she allegedly owed their client.

         The panel reversed the district court's grant of summary judgment on plaintiff's claim that in judicial proceedings, defendants misrepresented the amount of her debt and sought attorneys' fees to which they were not entitled. Distinguishing Ho v. ReconTrust Co., NA, 858 F.3d 568 (9th Cir. 2017), the panel held that the defendants' effort to collect homeowner association fees through judicial foreclosure constituted "debt collection" under the FDCPA. The panel held that defendants' filing of a writ of special execution violated 15 U.S.C. § 1692e because defendants falsely represented the legal status of their request for attorneys' fees. The panel remanded to the district court for a determination on damages.

         In a concurrently-filed memorandum disposition, the panel affirmed the district court's summary judgment in part.

          OPINION

          ARTERTON, District Judge:

         Plaintiff Martha McNair appeals the district court's grant of Defendant's summary judgment motion in her action under the Fair Debt Collection Practices Act ("FDCPA" or the "Act") and its denial of McNair's motion for partial summary judgment. McNair's complaint alleged that Defendants, including the law firm Maxwell & Morgan P.C., violated the FDCPA in their efforts to collect unpaid homeowner association assessments and other charges that she allegedly owed their client, the Neely Commons Community Association ("Association"). In the Memorandum Disposition filed together with this Opinion, we affirm the district court's conclusion that all but two of Plaintiff's FDCPA claims were untimely and the grant of summary judgment to Defendants on Plaintiff's timely claim that Defendant violated the FDCPA by not responding expeditiously to Plaintiff's requests for a statement of the amount she owed.

         The district court also granted summary judgment to Defendants on Plaintiff's sole other timely claim, which alleged that in judicial proceedings in 2013 and 2014, Defendants misrepresented the amount of Plaintiff's debt and sought attorneys' fees to which they were not entitled. With respect to this claim, we reverse the district court's grant of summary judgment against Plaintiff and denial of Plaintiff's motion for partial summary judgment, as explained herein.

         Because most of the facts in this decade-long saga bear little or no relevance to the basis for this Opinion, we do not recite the entire history of the case, which was ably summarized in the district court's decision. As relevant here, Plaintiff bought a home in Gilbert, Arizona in 2004 that was part of the Neely Commons Community Association. Plaintiff was required, under a declaration of covenants, conditions, and restrictions, to pay an annual assessment to the Association in monthly installments. When an owner fails to pay an installment, after the Association makes a written demand, the Association can record a notice of lien on the owner's ...


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