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Lapan v. Greenspoon Marder P.A.

United States District Court, D. Vermont

February 22, 2018

KARENA LAPAN, individually and on behalf of all other similarly situated, Plaintiff,
v.
GREENSPOON MARDER P.A., Defendant.

          DECISION ON DEFENDANT'S MOTION TO DISMISS (DOC. 8)

          Geoffrey W. Crawford, Chief Judge.

         Plaintiff 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.

         This 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.

         FACTS

         The 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 dismiss.

         Lapan 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 [.]

         The 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.

         Lapan 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.

         In 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.

         Both 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.

         ANALYSIS

         Lapan 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.

         Greenspoon 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 principal ...


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