Akinyele v. Picelli

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Akintayo Akinyele Plaintiff, v. Robert A. Picelli, Jr. Zeldes, Needle & Cooper, PC aka ZNC Law Defendants.

No. 3:21-CV-184 (OAW)

United States District Court, D. Connecticut

June 9, 2023

RULING AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

OMAR A. WILLIAMS UNITED STATES DISTRICT JUDGE

When someone purchases a condominium, they join an association responsible for the upkeep and maintenance of all common areas within the community. To maintain the development, the condominium association assesses and collects fees from each unit owner. Under Connecticut state law, when an owner fails to pay their condo fees, the association may foreclose on the unit. Plaintiff Akintayo Akinyele (“Plaintiff”) is the owner of a condominium unit governed by the Huntington Condominium Association (“Association”) in Bridgeport, Connecticut. In 2017, the Association retained the law firm of Zeldes, Needle & Cooper P.C (“ZNC”) to collect Plaintiff's unpaid condo fees. Plaintiff brings federal and state law claims against ZNC and its attorney, Robert A. Pacelli, Jr. (“Attorney Pacelli”) (with ZNC, “Defendants”) for their actions in attempting to collect the fees on behalf of the Association.^[1]The five-count complaint asserts violations of the Fair Debt Collection Practices Act (“FDCPA”) negligent infliction of emotional distress, and violation of the Connecticut Unfair Trade Practices Act (“CUTPA”).^[2]

Defendants have moved for summary judgment as to all counts of the complaint. Defs.' Mot. Summ. J. 1-2, ECF No. 10. Plaintiff concedes that summary judgment should be granted with respect to the complaint's federal claims under the FDCPA. Pl.'s Objection, ECF No. 23. Plaintiff objects however, to summary judgment as to the state law claims. Rather than filing any arguments in response to Defendants' motion for summary judgment, Plaintiff has filed a motion to dismiss the claims stating that he “intends to prosecute his claims in State Court.”^[3] Mot. to Dismiss 1, ECF No. 24. For the reasons stated herein, Defendants' motion for summary judgment hereby is GRANTED in part and DENIED in part. Plaintiff's motions to dismiss hereby are GRANTED. The Clerk of Court is directed to render judgment for Defendants on Counts One and Two and to terminate this action from the court's docket, please.

I. BACKGROUND

The following facts are taken from Defendants' Local Rule 56(a) Statement of Undisputed Facts. See Defs.' L.R. 56(a)1 Stmt., ECF No. 19-1 at 1-2 [hereinafter “Defs'. Stmt.”].^[4] Plaintiff has failed to submit his own statement of facts in opposition to the summary judgment motion, as required by the Local Rules.^[5] Thus, the court is permitted to deem admitted any facts presented by Defendants that are supported by the record. See D. Conn. L. Civ. R. 56(a)3. All ambiguities in the record are construed in Plaintiff's favor. All facts are undisputed, unless indicated otherwise:

In 2006, Plaintiff purchased a condominium unit located at 120 Huntington Turnpike, Unit 902, Bridgeport, Connecticut (the “Property”). Defs'. Stmt. ¶ 1, ECF No. 19-1 at 1-2. The Property is located within a condominium community governed by the Association. Id. Plaintiff has never resided at the Property. Id. ¶ 2. Plaintiff rents the Property to tenants for the purposes of earning rental income. Pl.'s Dep. 13:7-17, ECF No. 19-1 at 13. According to Plaintiff, the Property has “always been a rental property.” Id. at 13:2.

In his complaint, Plaintiff alleges that he pays his “condo fees religiously.” Compl. ¶ 5, ECF No. 1. On June 15, 2017, however, Plaintiff received a letter from Attorney Pacelli at ZNC informing Plaintiff that he had failed to pay the Association's fees between October 31, 2016, and June 10, 2017. Defs'. Stmt. ¶ 4, ECF No. 19-1 at 1. Attorney Pacelli's letter indicated that Plaintiff owed a balance of $3,672.82. Ex. 2, ECF No. 19-1 at 27. Plaintiff contested the allegation of nonpayment. See Ex. 3, ECF No. 19-1 at 30. In a letter dated July 9, 2017, Plaintiff informed the Association and ZNC that a review of his bank records showed that payments were, in fact, made to the Association during the period of time noted in Attorney Pacelli's letter. Id. Plaintiff attached to the letter his bank statement for the relevant time period. Id. at 31. Plaintiff also advised the Association to review their records and to determine the clerical or processing issue that erroneously would have reflected a balance on Plaintiff's account. Id. at 30.

More than eight months later, the seemingly trivial clerical issue had not been resolved. On March 26, 2018, Attorney Pacelli sent another letter to Plaintiff informing him that he now owes a balance of $8,190.42.^[6] Ex. 4, ECF No. 19-1 at 33. ZNC's March 26 letter also informed Plaintiff that the Association has no record of the payments set forth on the bank statement previously provided by Plaintiff. Id. at 34. At this point, Plaintiff called his bank. Pl.'s Dep. at 28:17-29:1, ECF No. 19-1 at 14-15. The bank informed Plaintiff that checks had been sent from Plaintiff's account, but they had not yet been cashed. Id. at 29:1-3. It was then that Plaintiff realized that the bank had an incorrect address for the Association. Id. at 29:3-7. Plaintiff remembered that the Association had changed management companies, and that the bank still must have had the address of the old management company. Id. Plaintiff contends that the Association had received, and likely cashed, at least some of his checks sent to the previous management company because the Association switched companies prior to 2014, but the nonpayment issue did not arise until November 2016. See id. at 30:6-16. Regardless, Plaintiff updated the address with his bank. Id. at 29:8.

After consulting with his bank, Plaintiff responded with his own letter on March 29, 2018. Ex. 5, ECF No. 19-1 at 37. In the March 29 letter, Plaintiff again contests the allegation of nonpayment. Id. Plaintiff states that he has been paying his monthly charges to the Association throughout the disputed period, and attaches to the letter a bank statement showing all the payments made to the Association via a check made out to “HUNTINGTON CONDOS BRIDGEPORT.”^[7]Id. Plaintiff notes, however, that the bank has informed him that while checks were issued from his account at the beginning of every month, these checks have yet to be cashed. Plaintiff then states that he has canceled the checks and requests an address to which he may send the payment. Id. at 38. Plaintiff followed up with the Association and ZNC in a letter dated May 11, 2018, because he had yet to receive the information requested in his March 29 letter, including the address to which payment may be made. Ex. 6, ECF No. 19-1 at 41. Plaintiff then enclosed a check for $427.35 for the common charges for May 2018. Id. That check, however, was returned to Plaintiff by ZNC. Ex. 8, ECF No. 19-1 at 47. Plaintiff's check was made payable to “Huntington Condominium Association,” but, as ZNC previously informed Plaintiff through its March 26 letter, “all payments are to be made payable to our firm as trustee and be by bank check or money order only.” Id.; see also Ex. 4, ECF No. 19-1 at 34.

On June 1, 2018, Plaintiff sent a letter to the Association and ZNC informing them that he had received a civil summons for the foreclosure of his unit. Ex. 7, ECF No. 19-1 at 44. Plaintiff again requested a ledger of his account. Id. On July 16, 2018, Attorney Pacelli sent a letter to Plaintiff providing a summary of the balance due to the Association “to settle this matter” Ex. 9, ECF No. 19-1 at 49. The Association now demanded $12,178.74, which includes the monthly fees owed to the Association as well as court fees for the foreclosure action. Id. Plaintiff responded in a letter dated July 30, 2018, reaffirming that he does not owe the Association any payments and has made payments for every month in the disputed period. Ex. 10, ECF No. 19-1 at 54-55. On August 20, 2018, Plaintiff sent the Association a check for $8,684.91. Ex. 11, ECF No. 19-1 at 57. That check, like the check sent with Plaintiff's March 29 letter, was returned to Plaintiff by ZNC because it was made payable to the wrong entity and because it was not a certified bank check or money order. Ex. 12, ECF No. 19-1 at 62.

On November 11, 2020, Plaintiff received another notice of delinquency from ZNC stating that Plaintiff now owed $23,265.12. Compl. ¶ 13, ECF No. 1. Plaintiff sent the full amount pursuant to the notice. Id. ¶ 14. ZNC, however, returned the check. Id. ¶ 16. Plaintiff alleges that ZNC's letters constitute “a false representation and deceptive means to collect or attempt to collect an unlawful debt which lawful part was paid in full.” Id. ¶ 17-18. Moreover, Plaintiff states that the collection attempts were not “expressly authorized by the agreement (bylaws et al between the plaintiff and the Condominium Association).” Id. ¶ 21. Plaintiff's complaint asserts a violation of the FDCPA, negligent infliction of emotional distress, and a violation of CUTPA.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the moving party can show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists.” Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010) (citations omitted). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id. The court must disregard all evidence favorable to the moving pa...