United States District Court, D. Vermont
KARENA LAPAN, individually and on behalf of all other similarly situated, Plaintiff,
GREENSPOON MARDER P.A., Defendant.
DECISION ON DEFENDANT'S MOTION TO DISMISS (DOC.
Geoffrey W. Crawford, Chief Judge.
Karena Lapan ("Lapan") alleges that Defendant
Greenspoon Marder PA. ("Greenspoon"), a law firm
incorporated in Florida, violated the Fair Debt Collection
Practices Act ("FDCPA") in the course of pursuing a
non-judicial foreclosure on a Las Vegas timeshare by
disclosing the details of a claimed debt to third parties.
Lapan also alleges that Greenspoon's conduct violated the
Vermont Consumer Fraud Act.
matter came before the court on Thursday, January 11, 2018
for hearing on Greenspoon's Motion to Dismiss (Doc. 8).
Attorneys Andrew Delaney of Martin & Associates, PC and
Peter Holland of the Holland Law Firm, P.C. appeared for
Lapan, and Attorney Justin Barnard of Dinse, Knapp &
McAndrew P.C. appeared for Greenspoon. For the reasons set
forth herein, the court denies the motion to dismiss.
following facts are set forth in the Complaint, and the court
accepts them as true and draws all reasonable inferences from
them in favor of Lapan for the purposes of this motion to
and another individual named Francis Brooks jointly purchased
a timeshare in Las Vegas, and financed that purchase with a
loan from Eldorado Resorts Corp., a Florida corporation. On
July 20, 2016, Greenspoon, a law firm representing Eldorado,
sent Lapan a notice of default and election to sell under
deed of trust. Greenspoon claimed that Lapan and Brooks had
defaulted on the loan on May 19, 2014 and owed $41, 805. This
notice was issued pursuant to Nevada's non-judicial
foreclosure law, which permits a sale of a security property
by a trustee in satisfaction of a deficiency. The notice
included the following language:
Please be advised that in the event that your obligation is
not brought current.. .within 35 days.. .ELT shall accelerate
all sums due under the Note and shall proceed with the sale
of the Property [.]
notice was accompanied by a Fair Debt Collection Practices
Act Disclosure, which stated "[t]his is a communication
from a debt collector" and "THIS COMMUNICATION IS
AN ATTEMPT TO COLLECT A DEBT." The notice was also
accompanied by a list of individuals with accounts in default
relating to the same timeshare development. The list included
names of borrowers, default dates, and amounts due.
responded to this communication on August 2, 2016 with a
request for validation of me claimed debt. Greenspoon
responded to this request on August 13, 2016 with a statement
of Lapan's account, which showed a balance of $7, 849.
Greenspoon now admits that the amount in the original notice
was an error.
October 2016, Greenspoon sent Lapan a notice of trustee's
sale indicating that the trustee's sale of the timeshare
property would occur on November 9, 2016. This notice was
accompanied by the same list of individual debtors that
accompanied the notice of default, though Lapan's amount
due had been corrected to $7, 849.
the notice of default and the notice of trustee's sale
were sent to other individuals with interests in the
timeshare property who were also in default.
claims that Greenspoon's mailing of the unredacted list
of individuals in default to all of the timeshare owners on
the list violated the FDCPA in two ways. First, it amounted
to communication with a third party in connection with the
collection of a debt, in violation of 15 U.S.C. §
l692c(b). Second, it amounted to publication of a list of
consumers who allegedly refused to pay, in violation of 15
U.S.C. § l692d(3). Lapan also claims that the same
conduct violated the Vermont Consumer Fraud Act, 9 V.S.A.
§ 2451 et seq., and CVR-06-031-004, a regulation
thereunder prohibiting disclosure of information relating to
debts. Lapan seeks certification of a class action, asserting
that Greenspoon has a practice of mailing unredacted lists of
individual debtors and that each individual whose identifying
information was mailed to other debtors in this manner is
situated similarly to her.
has moved to dismiss, arguing that this court lacks personal
jurisdiction and that the Complaint fails to state a claim
upon which relief can be granted. Greenspoon raises three