Billings v. Portnoff Law Associates, Ltd. (In re Billings)

544 B.R. 529
CourtUnited States Bankruptcy Court, E.D. Pennsylvania
DecidedFebruary 5, 2016
DocketBky. No. 14-12874 ELF; Adv. No. 15-470 ELF
StatusPublished
Cited by6 cases

This text of 544 B.R. 529 (Billings v. Portnoff Law Associates, Ltd. (In re Billings)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Billings v. Portnoff Law Associates, Ltd. (In re Billings), 544 B.R. 529 (Pa. 2016).

Opinion

MEMORANDUM

ERIC L. FRANK, CHIEF U.S. BANKRUPTCY JUDGE

I. INTRODUCTION

Portnoff Law Associates, Ltd. (“Portnoff’) is a law firm that represents various municipalities and municipal authorities in Pennsylvania. In the course of that representation, Portnoff regularly files written motions in state court “continuing” or “postponing” sheriffs sales of real property that have been stayed by the property owner’s bankruptcy filing under chapter 13 of the Bankruptcy Code.1 In some cases, Portnoff files multiple motions in the state court to “postpone” the sheriffs sale.

Debtors Michael Billings and Kathleen Billings (“the Debtors”) have filed a class action lawsuit against Portnoff asserting that Portnoffs practice of filing multiple motions to postpone sheriffs sales, without first obtaining relief from the automatic stay under 11 U.S.C. § 362(d), violates the automatic stay, 11 U.S.C. § 362(a).

Presently before the court is Portnoffs Motion to Dismiss the Complaint (“the Motion”), filed under Fed. R. Civ. P. 12(b)(6) (incorporated in this adversary proceeding by Fed. R. Bankr. P. 7012).

The Motion will be granted.

II. PROCEDURAL HISTORY

The Debtors filed a voluntary chapter 13 petition on April 11, 2014. On October 22, 2015, the Debtors instituted this adversary proceeding against Portnoff by filing a class action complaint (“the Complaint”). The Complaint consists of two (2) counts.

Count I is a claim for violation of the automatic stay, 11 U.S.C. § 362(a). 'The Debtors seek declaratory and injunctive relief, as well as monetary damages under 11 U.S.C. §§ 101, 362(a)(1), (k). More specifically, the Debtors request that the bankruptcy court: (1) declare that the filing of state court continuation motions is a violation of the automatic stay, (2) enjoin Portnoff from filing any further such motions, and (3) sanction Portnoff for a knowing violation of the stay.

In Count II, the Debtors request that this action be certified as a class action under Fed. R. Civ. P. 23(b)(2). They define the putative plaintiff class as chapter 13 debtors who:

(1) filed a chapter 13 case within the last three years in this judicial district, in which Portnoff entered its appearance, (including bankruptcy cases that have been dismissed); and
(2) are subject to governmental or municipal liens for which Portnoff filed at least one written motion in the Courts of Common Pleas, seeking to postpone a sheriffs sale during the pendency of the bankruptcy case, without first obtaining relief from [531]*531the automatic stay pursuant to 11 U.S.C. § 362(d).

Portnoff moved to dismiss the Complaint on November 18, 2015. (Doc. # 5). The Debtors filed a response to the Motion on December 7, 2014. (Doc. # 7).

II. APPLICABLE LEGAL STANDARD — RULE 12(b)(6)

Fed. R. Civ. P. 12(b)(6) allows a party to raise as a defense that the complaint “fails to state a claim upon which relief can be granted.” Last year, I described the legal standard under Rule 12(b)(6) as follows:

A motion under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the factual allegations of a complaint, see Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993), and determines “whether the plaintiff is entitled to offer evidence to support the claims,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n. 8, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
A defendant is entitled to dismissal of a complaint only if the plaintiff has not pled “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 547, 127 S.Ct. 1955. A claim is facially plausible where the facts set forth in the complaint allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
In evaluating the plausibility of the plaintiffs claim, the court conducts a context-specific evaluation of the complaint, drawing from its judicial experience and common sense. See, e.g., Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.2009); In re Universal Marketing, Inc., 460 B.R. 828, 834 (Bankr.E.D.Pa.2011) (citing authorities); In re Olick, 2011 WL 2565665, at *1-2 (Bankr.E.D.Pa. June 28, 2011). In doing so, the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, viewing them in the light most favorable to the plaintiff. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Taliaferro v. Darby Township Zoning Board, 458 F.3d 181, 188 (3d Cir.2006). But, the court is not “bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
The Third Circuit Court of Appeals has condensed these principles into a three (3) part test:
• First, the court must take note of the elements a plaintiff must plead to state a claim.
• Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth.
• Third, where there are well-pled factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir.2010) (quotations and citations omitted),
Finally, in assessing a Rule 12(b)(6) motion, the court may “consider the allegations in the complaint, exhibits attached to the complaint and matters of public record ...

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Cite This Page — Counsel Stack

Bluebook (online)
544 B.R. 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billings-v-portnoff-law-associates-ltd-in-re-billings-paeb-2016.