Bell v. LVNV Funding LLC

1

MELISSA BELL, Plaintiff, v. LVNV FUNDING LLC, Defendant.

CIVIL No. 21-14152

United States District Court, D. New Jersey

November 7, 2023

OPINION

Hon Joseph H. Rodriguez, U.S.D.J.

Presently before the Court is the motion by Defendant LVNV Funding LLC (“Defendant”) for an order awarding attorneys' fees pursuant to 15 U.S.C. §1692k(a)(3) as against both Plaintiff Melissa Bell (“Plaintiff”) and Plaintiff's former counsels, Zemel Law, LLC (“Zemel Law”) and Credit Repair Lawyers of America (“CRLA”), or allowing Defendant to take discovery to confirm Plaintiff's initial involvement in the action and the basis for the claims (the “Motion”). See Defendant's Notice of Motion [Dkt. 59]; Br. in Supp. at *1-2 [59-7]. Zemel Law has opposed the Motion [Dkt. 64] while Plaintiff herself and CRLA did not file opposition.^[1] The Court has considered the written submissions of the parties [Dkt. 59, 64, 65] and issues this opinion without oral argument pursuant to Fed.R.Civ.P. 78 (b) and L. Civ. R. 78.1 (b). For the reasons set forth herein the Motion will be denied with prejudice as to Plaintiff's former counsels and denied in part and granted in part as to Plaintiff.

I. Background

Plaintiff initiated this action through Zemel Law, acting as local counsel for CRLA, by filing a complaint on July 26, 2021 alleging a violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) against Defendant. See generally, Complaint [Dkt. 1] (“Compl.”). Plaintiff specifically alleged that Defendant violated 15 U.S.C. § 1692e(2)(A) by falsely representing the character, amount, or legal status of her debt and 15 U.S.C. § 1692e(8) by reporting credit information known to be false when Defendant erroneously reported a collection item as disputed even after Plaintiff allegedly no longer disputed the item. Id. Defendant filed an Answer to Complaint with Affirmative Defenses [Dkt. 9] on November 24, 2021 and the parties thereafter engaged in discovery.

On December 29, 2021, the parties filed a Joint Proposed Discovery Plan. [Dkt. 15]. The Court issued a Scheduling Order on January 5, 2022 confirming the directives given to counsel during the telephonic scheduling conference convened pursuant to Fed.R.Civ.P. 16. [Dkt. 18]. On April 28, 2022, Defendant filed a letter requesting sixty (60) days to complete discovery. [Dkt. 21]. Defendant indicated in the letter that “Plaintiff's counsel served responses to Discovery Demands as late as April 19, 2022 and Defendant then sought her deposition, and Plaintiff's counsel refused to produce Plaintiff for a deposition on the purported basis that discovery was to be completed by April 29, 2022.”

Br. in Supp. at *3 [59-7] (citing Dkt. 21). On May 6, 2022, Plaintiff opposed Defendant's motion for an extension of time to complete discovery including an extension of time to conduct Plaintiff's deposition; however, the opposition apparently failed to provide proposed dates for the deposition. Id. (citing Dkt. 24). On May 12, 2022 the Magistrate Judge held a telephonic conference at which time Defendant's letter application for an extension was granted and new litigation deadlines were set. [Dkt. 25, 26, 27].

Defendant then filed a letter-motion on June 27, 2022 requesting a forty-five (45) day extension of time to complete discovery because Plaintiff had not yet been deposed. [Dkt. 28]. Defendant noted in the letter-motion that Plaintiff provided only one date for her deposition. Id. On June 28, 2022 the Court granted the letter-motion and issued a third scheduling order setting an August 15, 2022 deadline for the completion of pretrial discovery. [Dkt. 29, 30].

On July 7, 2022, Defendant's counsel informed the Court via letter that, despite requesting dates for Plaintiff's deposition, no dates were given and Zemel Law instead informed Defendant that they intended to withdraw as counsel. Br. in Supp. at *4. Defendant indicated that it objected to Zemel Law's withdrawal insofar as they had engaged in delay tactics. [Dkt. 31]. Zemel Law then filed a motion to withdraw as counsel asserting, inter alia, that “there has been a complete breakdown in the relationship between Plaintiff and her counsel.” [Dkt. 32]. The motion to withdraw was denied on July 11, 2022. [Dkt. 33]. In denying the motion to withdraw, the Magistrate Judge concluded that Zemel Law failed to demonstrate a sufficient basis to withdraw as counsel had not presented any specific information describing the “complete breakdown” or addressing the factors set forth in Rusinow v. Kamara, 920 F.Supp. 69, 71 (D.N.J. 1996). Id. at *4.

On August 4, 2022, Defendant's counsel filed a letter addressing issues pertaining to the completion of discovery and stating that Defendant again sought dates for Plaintiff's deposition, but no dates were suggested by Zemel Law on behalf of Plaintiff and Zemel Law had not filed a subsequent motion to withdraw. [Dkt. 40]. Zemel Law then filed a renewed motion to withdraw as counsel on August 8, 2022. [Dkt. 42]. On September 9, 2022, the Court issued an Order scheduling a telephonic hearing on the pending motion to withdraw for October 6, 2022 and directed Zemel Law to inform Plaintiff of the date and time of the hearing. [Dkt. 44]. The Court issued an Amended Order on September 12, 2022 scheduling an in-person hearing on the pending motion to withdraw for October 6, 2022, and directing Zemel Law to inform Plaintiff of the date and time of the hearing. [Dkt. 45]. On September 23, 2022, Zemel Law filed a Proof of Service of Amended Order, indicating that the Amended Order was mailed to Plaintiff on September 14, 2022 via certified mail and first-class mail and further that the certified mailing was actually delivered to Plaintiff on September 17, 2022. [Dkt. 47]. On October 4, 2022, the Court issued a Second Amended Order rescheduling the October 6, 2022 conference to October 27, 2022 and again directing Zemel Law to provide notice to Plaintiff. [Dkt. 50]. On October 26, 2022, Zemel Law filed a Proof of Service of Second Amended Order, indicating that the Second Amended Order was mailed, via certified mail and first-class mail, and emailed to Plaintiff on October 4, 2022. [Dkt. 52]. However, Zemel Law did not state that the mailing was actually delivered to Plaintiff. Id.

On October 27, 2022, the Court granted Zemel Law's motion to withdraw as counsel and noted that Plaintiff failed to appear pursuant to the Court's Order dated October 4, 2022. [Dkt. 53]. Plaintiff thereafter failed to make an appearance pro se or otherwise retain new counsel. Defendant then filed a letter with this Court on November 14, 2022 addressing the purported failures of Zemel Law and Plaintiff in complying with the Court's Order granting the motion to withdraw and requesting that the action be dismissed as a result. [Dkt. 55]. In light of the dispositive nature of the request, the Magistrate Judge addressed the motion by issuing a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). The Magistrate Judge recommended that Plaintiff's complaint be dismissed with prejudice for lack of prosecution due to Plaintiff's noncompliance with Court Orders, including Plaintiff's failure to appear for a hearing on October 27, 2022, her failure to enter an appearance pro se or through new counsel within the ten-day time period provided in the Court's Order of October 27, 2022 granting Zemel Law's motion to withdraw, her failure to make herself available for deposition, and her failure to proffer any explanation for her lack of participation. See Report and Recommendation at *5 [Dkt. 57]. The Court adopted the Report and Recommendation and dismissed Plaintiff's complaint. [Dkt. 58].

Defendant now moves for an order granting attorneys' fees pursuant to 15 U.S.C. §1692k(a)(3) as against both Plaintiff and Plaintiff's former counsels, Zemel Law and CRLA, or allowing Defendant “to take discovery to confirm Plaintiff's initial involvement in the action and the basis for the claims.” See Defendant's Notice of Motion [Dkt. 59]; Br. in Supp. at *1-2 [59-7]. In support of the Motion, Defendant argues that CRLA and Zemel Law brought this action without Plaintiff's involvement and with the purpose of extracting money from Defendant, forcing Defendant to “expend over thirty-five thousand dollars ($35,000.00) to defend against Plaintiff's frivolous claims.” Br. in Supp. at *2. Defendant contends that Plaintiff's lack of involvement is demonstrated by circumstances including that (1) the Complaint is not verified by Plaintiff or otherwise verified by counsel; (2) there is no evidence that Plaintiff ever participated in the drafting of the complaint, discovery, or that she ever communicated with her counsel; (3) as soon as litigation proceeded past a quick settlement, counsel conspicuously could not reach its client; (4) Zemel Law's two motions to withdraw as counsel are short on facts and do not detail any attorney-client relationship, evidencing Plaintiff's lack of involvement in bringing this action; and, (5) not once did Plaintiff appear at a conference or otherwise file signed documents with the Court. Id. at *8. Defendant further represents that, through its prior experiences with CRLA, Defendant observed a pattern and practice of claims bring brought under the FDCPA without CRLA's investigation of the claims or involvement the of plaintiffs in investigating and bringing the claims. Id. at *10-11 (citing Erik Morgan v. LVNV Funding, LLC, 2:21-cv-12967-LJM-JJCG (E.D. Mich. September 06, 2022); Yasmeen Bahar v. I.C. Systems, 2:21-cv-12967-LJMJJCG (N.D. Ohio 2022); Akiba Canady v. LVNV, 4:21-cv-1129-ACA (N.D. Ala 2022); Nicol Allen v. First Federal Credit Control, Inc., 2:22-cv-11901 (E.D. Mich. Jan. 28, 2023)).

Defendant further...