Barbara Lowe v. FBCS Inc

• Court: Court of Appeals for the Third Circuit
• Decided: January 11, 2023
• Docket: 21-3307
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________

No. 21-3307 ________________

BARBARA LOWE, individually and on behalf of all others similarly situated, Appellant

v.

FBCS, INC; LVNV FUNDING, LLC _____________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 2-20-cv-02268) District Judge: Honorable Claire C. Cecchi ________________

Submitted Pursuant to Third Circuit L.A.R. 34.1 on November 10, 2022

Before: CHAGARES, Chief Judge, JORDAN, and SCIRICA, Circuit Judges.

(Filed: January 11, 2023)

OPINION* ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SCIRICA, Circuit Judge

This appeal arises from the District Court’s grant of summary judgment in favor of

Defendant-Appellants LVNV Funding, LLC and FBCS, Inc. (collectively, “Defendants”)

and denial of summary judgment for Plaintiff-Appellant Barbara Lowe. This dispute

began as a debt collection action in New Jersey Superior Court initiated by LVNV

against Lowe. In that case, the Superior Court entered contradictory orders: dismissing

the action for LVNV’s failure to attend trial but entering default judgment against Lowe.

After FBCS allegedly attempted to collect the debt, Lowe initiated this Fair Debt

Collection Practices Act (“FDCPA”) suit against Defendants in federal court. After filing

this action, Lowe obtained an order from the Superior Court vacating the default

judgment against her and declaring it void ab initio.

The issue here is whether Defendants—by seeking to collect on the default

judgment that was later vacated—used “false, deceptive, or misleading” representations

in connection with collecting the judgment. 15 U.S.C. § 1692e. The District Court held

they did not and granted summary judgment in their favor. We will affirm.

I.

In 2016, LVNV initiated a debt collection action against Lowe in New Jersey

Superior Court. Lowe timely filed an answer1 and was later notified the matter would be

set for trial on October 20, 2016.

On October 14, 2016, less than a week before trial, LVNV filed a Certification of

1 The parties dispute whether Lowe properly served her answer on LVNV.

2 Proof and Ownership of Account, including a credit card statement showing that Lowe

owed LVNV a balance of $1,079.60.2 That same day, however, the Clerk of the Superior

Court entered default judgment in favor of LVNV and against Lowe, but the notice was

not filed until November 7, 2016.

The morning of trial, LVNV submitted a letter to the Superior Court that the

matter should be marked as settled. Later that day, Lowe appeared for the trial as

scheduled, but LVNV did not. As a result, the Superior Court judge entered an order

dismissing the case due to LVNV’s non-appearance.

Two years later, on October 11, 2018, the Superior Court filed a Statement for

Docketing that confirmed default judgment was entered in favor of LVNV and against

Lowe on October 14, 2016.

Lowe alleges that FBCS began calling her to collect on the judgment in 2019, and

that in at least one of these calls she disputed the debt. In September 2019, FBCS sent a

letter to Lowe acknowledging Lowe’s dispute of the debt.

In March 2020, Lowe filed this action, alleging that Defendants attempted to

collect a debt they “knew or should have known . . . was unenforceable” and thus made a

false representation in violation of the FDCPA, 15 U.S.C. §§ 1692e(2)(A), (5), (10).

App. 22–23.

On August 17, 2020, Lowe filed a motion in the Superior Court seeking to vacate

2 Contrary to Lowe’s assertion that LVNV “filed a request for default judgment” against her, Appellant’s Br. 3, LVNV’s October 14 filing was not styled as a request for entry of a default, and the Superior Court accurately noted it on the docket as a “Certification of Proof,” App. 119.

3 the judgment entered against her and declare it “void ab initio.”3 App. 31. While the

motion was pending in Superior Court, Defendants filed this motion for summary

judgment before the District Court.

One year after Lowe’s motion to vacate the judgment, on August 23, 2021, the

Superior Court granted the motion, stating: “The Judgment entered against Defendant

Barbara Lowe . . . hereby is vacated and declared void ab initio; said Judgment having

been entered erroneously by the Clerk after the Court had already dismissed this case due

to Plaintiff’s failure to appear for trial . . . .” App. 130. Lowe then filed a cross-motion

for summary judgment in the District Court.

The District Court granted Defendants’ motion for summary judgment and denied

Lowe’s cross-motion for summary judgment. The District Court found “unpersuasive”

Lowe’s argument that “Defendants’ efforts to collect a debt that was the subject of

dismissal is improper per se.” App. 7. The District Court reasoned that Defendants’

alleged efforts to collect the debt were not false or misleading because “[e]ven though the

default judgment is now considered invalid, the judgment nevertheless existed in 2019

when the alleged communications were made.” App. 8. Because Lowe did not “allege[]

that any other aspect of the alleged debt collection communications were false,

misleading, or illegal” aside from arguing they were “per se false and misleading”

because of the eventual vacatur of default judgment, the District Court granted summary

judgment in favor of Defendants and denied Lowe’s motion for summary judgment.

3 “Void ab initio” means “[n]ull from the beginning.” Black’s Law Dictionary 1709 (9th ed. 2009).

4 App. 9–10. This timely appeal followed.4

II.5

Lowe first argues the District Court’s grant of summary judgment in favor of

Defendants violates the Rooker-Feldman doctrine because the District Court “could not

have reached the decision that it did without necessarily supplanting” the Superior

Court’s order vacating the judgment against her. Appellant’s Br. 15–16. The Rooker-

Feldman doctrine is inapplicable here.

“In certain circumstances, where a federal suit follows a state suit, the Rooker-

Feldman doctrine prohibits the district court from exercising jurisdiction.” Great W.

Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163–64 (3d Cir. 2010). The

doctrine “is confined to . . . cases brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the district court proceedings

commenced and inviting district court review and rejection of those judgments.” Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). To trigger the

Rooker-Feldman doctrine, the following four requirements must be met: “(1) the federal

plaintiff lost in state court; (2) the plaintiff ‘complains of injuries caused by the state-

4 The District Court had jurisdiction under 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d). We have appellate jurisdiction under 28 U.S.C. § 1291. 5 We exercise plenary review over a court’s summary judgment decision and review conclusions of law de novo. Sikora v. UPMC, 876 F.3d 110, 113 (3d Cir. 2017). Summary judgment is appropriate where “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 moving party is entitled to judgment as a matter of law when the non-moving party fails to make “a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

5 court judgments’; (3) those judgments were rendered before the federal suit was filed;

and (4) the plaintiff is inviting the district court to review and reject the state judgments.”

Vuyanich v. Smithton Borough, 5 F.4th 379, 385 (3d Cir. 2021) (quoting Great W. Mining

& Mineral Co., 615 F.3d at 166).

Lowe satisfies none of the four factors. First, as Lowe asserts and as shown by the

Superior Court’s order vacating default judgment, she did not lose in New Jersey

Superior Court. Second, Lowe’s claim does not complain of injuries caused by the

Superior Court’s order vacating the judgment against her. Third, the Superior Court

vacated the judgment after Lowe filed her federal suit. Finally, and most importantly,

Lowe’s suit does not invite the District Court to review and reject the Superior Court’s

order vacating default judgment—rather she asks the District Court to rely upon it. Reply

Br. 10 (“Plaintiff presented the August 23, 2021 Order (which declared the erroneously

entered judgment to be void ab initio) as proof that Defendants’ collection efforts were

improper. Plaintiff asked the [District] Court to adhere to that determination . . . .”).

Accordingly, the Rooker-Feldman doctrine does not prevent the exercise of federal

jurisdiction.6

6 It is perplexing that Lowe invokes the Rooker-Feldman doctrine because—if her argument were successful—the result would be a lack of federal jurisdiction to grant the relief her suit seeks. Lowe’s arguments may be best understood as based on preclusion, but because Lowe does not articulate any preclusion argument we do not consider it here. Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017) (“[W]e have consistently refused to consider ill-developed arguments or those not properly raised and discussed in the appellate briefing.”).

6 III.

Lowe next argues that the District Court erred in granting summary judgment in

favor of Defendants by finding the Superior Court judgment against Lowe was “in

effect . . . until such time as it was vacated,” Appellant’s Br. 18 (internal quotation marks

omitted), rather than “per se not valid” when Defendants engaged in any effort to collect

the debt, id. at 19.

“To prevail on an FDCPA claim, a plaintiff must prove that (1) she is a consumer,

(2) the defendant is a debt collector, (3) the defendant’s challenged practice involves an

attempt to collect a ‘debt’ as the Act defines it, and (4) the defendant has violated a

provision of the FDCPA in attempting to collect the debt.” Jensen v. Pressler &

Pressler, 791 F.3d 413, 417 (3d Cir. 2015) (quoting Douglass v. Convergent

Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014)). At issue here is the fourth element: The

District Court ruled that Lowe failed to establish a genuine dispute of material fact that

Defendants violated § 1692e of the FDCPA. App. 7; see 15 U.S.C. § 1692e.

Section 1692e prohibits a debt collector from using “any false, deceptive, or

misleading representation or means in connection with the collection of any debt.” 15

U.S.C. § 1692e. The statute provides a non-exhaustive list of prohibited conduct, such as

the “false representation of the character, amount, or legal status of any debt,” id.

§ 1692e(2)(A); the “threat to take any action that cannot legally be taken,” id. § 1692e(5);

the “use or distribution of any written communication which simulates or is falsely

represented to be a document authorized, issued, or approved by any court, official, or

agency of . . . any State,” id. § 1692e(9); and the “use of any false representation or

7 deceptive means to collect or attempt to collect any debt,” id. § 1692e(10).

Lowe argues that Defendants’ alleged attempts to collect on the default judgment

in 2019 are per se improper because the Superior Court, two years later, vacated the

default judgment and declared it void ab initio. Because “void ab initio” means “[n]ull

from the beginning,” Black’s Law Dictionary 1709 (9th ed. 2009), Lowe argues the

default judgment order should be treated as if it were never in effect and “per se not

valid” when the debt collection efforts occurred. Appellant’s Br. 19. Because the default

judgment was not in effect, Lowe argues, “it necessarily follows that Defendants

attempted to collect on a debt that was not authorized at law.” Id. at 20.

The District Court correctly determined that Lowe failed to show there was a

genuine issue for trial that Defendants violated § 1692e based on the Superior Court

vacating its default judgment order. Although the Superior Court eventually vacated and

declared void ab initio the default judgment order after Lowe filed this action, the default

judgment order was in effect when Defendants allegedly attempted to collect. If

Defendants attempted to collect on the default judgment prior to the Superior Court’s

vacatur order, such action would not misrepresent the “legal status” of the judgment, 15

U.S.C. § 1692e(2)(A), or constitute a “threat to take any action that cannot legally be

taken,” id. § 1692e(5), because judgment was entered against Lowe at the time of the

alleged communication. And if Defendants referred to a copy of the Superior Court’s

default judgment order in 2019, it would not have “falsely represented to be a document

authorized, issued, or approved” by the Superior Court because, at the time of the

communication, the default judgment order was an order issued by the Superior Court.

8 15 U.S.C. § 1692e(9). Lowe failed to present a triable issue that any communication

from Defendants to Lowe regarding the collection of the default judgment was made

unlawful retroactively upon the Superior Court vacating its default judgment order.

Aside from arguing any past communications regarding collection of the debt

were per se improper once the Superior Court vacated its default judgment order, Lowe

offers no other basis for finding a FDCPA violation. Accordingly, the District Court

correctly concluded that Lowe failed to show there was a genuine issue for trial on

Defendants’ violation of the FDCPA. We will affirm.7

IV.

For the forgoing reasons, we will affirm the District Court’s denial of Lowe’s

motion for summary judgment and grant of summary judgment in favor of Defendants.

7 Defendants separately argue that Lowe lacks standing and that Lowe failed to produce evidence of any actionable communication by Defendants within the statute of limitations. Because the District Court did not analyze these issues, it is not necessary for us to reach them, and we do not discuss them here. See O’Hanlon v. Uber Techs., Inc., 990 F.3d 757, 763 n.3 (3d Cir. 2021) (“[A]s a court of review, not of first view, we will analyze a legal issue without the district court’s having done so first only in extraordinary circumstances.” (internal quotation marks and citation omitted)).