Sandra Pletos v. Makower Abatte Guerra Wegner Vollmer

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 19, 2018
• Docket: 17-2188
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0205n.06

Case No. 17-2188

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED Apr 19, 2018 SANDRA PLETOS; MITCHELL PLETOS, ) DEBORAH S. HUNT, Clerk ) Plaintiffs-Appellants, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF MAKOWER ABATTE GUERRA WEGNER ) MICHIGAN VOLLMER, PLLC, et al., ) ) Defendants-Appellees. ) )

BEFORE: COLE, Chief Judge; GUY and DONALD, Circuit Judges.

BERNICE BOUIE DONALD, Circuit Judge. In 2005, Plaintiffs-Appellants Sandra

and Mitchell Pletos ceased paying their homeowners association fees. When the association

recorded liens on their property for the unpaid amounts, the Pletoses brought a fifteen-count

lawsuit against it in state court. After the association successfully counterclaimed, and the

Pletoses’ case was dismissed, the Pletoses still refused to pay the judgment or any continuing

fees. This action represents their latest attempt to evade payment, thirteen years after their first

missed installment and six after their initial suit. As such, the district court dismissed the case as

to certain defendants, and granted summary judgment to others. For the reasons that follow, we

AFFIRM the district court’s order in full. Case No. 17-2188, Pletos v. Makower Abatte Guerra Wegner Vollmer, PLLC, et al.

I.

The Pletoses own a portion of “Lake in the Woods,” a plotted subdivision in the

Township of Shelby, Macomb County, Michigan. By virtue of that ownership, the Pletoses are

members of the Lake in the Woods Association, Incorporated (“LWA”), a Michigan nonprofit

corporation homeowners association. From 2005 to 2012, the Pletoses failed to pay annual and

special assessments set forth in the LWA governing documents. In 2012, LWA recorded liens

against the Pletoses’ property for $1,295.53 and $6,271.74. See Pletos v. Lake in the Woods

Homeowners Ass’n, No. 319087, 2015 WL 1650803, *1 (Mich. Ct. App. Apr. 14, 2015). The

Pletoses then brought a fifteen-count suit in Macomb County Circuit Court alleging violation of

LWA bylaws, the Fair Debt Collection Practices Act, and for slander of title, among others. Id.

LWA responded by retaining John Finkelman and his law firm, Makower Abbate Guerra

Wegner Vollmer, PPLC (the “Makower Defendants”) to file a counterclaim seeking unpaid

assessments, interest, late charges, and fees. Id.

LWA is governed by: (1) its Articles of Incorporation, (2) the Declaration of Easements,

Covenants, Conditions and Restrictions for Lake in the Woods Subdivision (“DECCR”) and

(3) its Bylaws. Under Article III, Sections 1 and 3 of the Bylaws, lot owners must pay general

dues and special assessments on a yearly basis. (RE 8-3, PageID #399-401.) Section 8 also

provides that dues and assessments that are not paid within 30 days will be subject to interest and

late charges. (Id. at PageID #427-429.) Article IV of the DECCR obligates lot owners to pay

annual general assessments and special assessments for capital improvements. (Id. at PageID

#402.) Article IV also provides that “[a]ll annual and special assessments, whether general or

related to the Lake Lots, together with interest, costs, and reasonable attorneys’ fees, shall from

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date of assessment be a charge and a continuing lien upon the Lot against which each such

assessment is made.” (Id.)

Considering the governing documents, the Macomb County Circuit Court granted

summary disposition in LWA’s favor, both as to the Pletoses’ complaint and LWA’s

counterclaim. Pletos, 2015 WL 1650803 at *4. In sum, the court found that LWA followed the

DECCR and its Bylaws and did not breach its covenant with the Pletoses—who failed to prove

that any delinquent assessments were in error. Id. The court also found that LWA was not a

debt collector, eliminating any FDCPA claims. Id. at *5. After an evidentiary hearing, the court

awarded LWA $20,553.64, as well as any additional legal fees that LWA incurred in attempting

to collect the judgment. Id. at *6.

The Pletoses appealed and the court granted a stay conditioned on posting of a $25,000

bond. The Michigan Court of Appeals affirmed. Pletos, 2015 WL 1650803 at *1. The

Michigan Supreme Court denied leave to appeal. Pletos v. Lake in the Woods Homeowners

Ass’n, 499 Mich. 881, 876 N.W.2d 522 (Mich. 2016). Still, the Pletoses refused to pay either the

judgment entered against them or continuing fees.

Before and after the Michigan Supreme Court’s decision, various at-issue

communications occurred: Mrs. Pletos requested documents from LWA to review; Defendant

Finkelman corresponded with the Pletoses’ counsel regarding how to respond to Mrs. Pletos; the

Pletoses’ attorney chastised Defendant Finkelman for failing to instruct LWA to communicate

with Mrs. Pletos directly; Defendant Finkelman responded to Mrs. Pletos’s document request;

LWA sent the Pletoses an invoice for the fees due, as well as the judgment entered; the Pletoses

responded and objected to LWA’s internal procedures, reiterating many of the allegations in the

Pletoses’ original complaint; the Makower Defendants corresponded with the Pletoses’ counsel

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regarding payment of the judgment and the calculation of the same; Defendant Finkelman sent

the Pletoses’ counsel a letter indicating the outstanding amount; Defendant Finkelman contacted

CNA Surety—the Pletoses’ appeal bond provider; and CNA Surety declined to pay the appeal

bond directly to LWA. At that point, Defendant Finkelman moved for judgment against CNA

Surety for the bond, which the state court granted. The Pletoses moved for reconsideration,

which the court denied.

Before the state court’s judgment against CNA Surety, the Pletoses filed this action

against Roger Papa, Giovan Agazzi, Danny Landa, Kati Azia, and Mike Desjardines—LWA

Board members (the “LWA Defendants”)—and the Makower Defendants alleging FDCPA,

Racketeer Influenced Corrupt Practices Act, Michigan Regulation of Collection Practices Act

violations, as well as seeking an accounting and injunctive relief preventing further collection

activity. The district court partially granted the Makower Defendants’ Motion to Dismiss and

the LWA Defendants’ Motion for Summary Judgment finding: (1) the Rooker-Feldman doctrine

barred all the Pletoses’ claims; (2) the FDCPA claims were either barred by the statute of

limitations or failed to state a claim; (3) the RICO claims were not sufficiently pleaded; and

(4) the majority of the Pletoses’ claims were barred by res judicata or collateral estoppel. After

dismissing or granting summary judgment on all federal claims, the district court declined to

exercise supplemental jurisdiction of the remaining state law claims. It also summarily denied

the Pletoses’ motion to supplement their complaint to add communications allegedly violative of

the FDCPA.

II.

We first review de novo the district court’s application of the Rooker-Feldman doctrine.

See Hall v. Callahan, 727 F.3d 450, 453 (6th Cir. 2013). We also review de novo a district

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court’s decision to grant a motion to dismiss or for summary judgment. See Sutherland v.

Michigan Dep’t of Treasury, 344 F.3d 603, 611 (6th Cir. 2003) (citations omitted). We then

review the district court’s denial of the Pletoses’ motion to supplement for abuse of discretion.

Spies v. Voinovich, 48 F. App’x 520, 527 (6th Cir. 2002).

III.

The Pletoses’ first argument—that the district court improperly applied the Rooker-

Feldman doctrine—is largely dispositive to their appeal. Rooker-Feldman is a combination of

abstention and res judicata. See, e.g., Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

280, 283-84 (2005) (citing Dist. Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 476 (1983),

and Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923)). Under the doctrine, the

Supreme Court’s appellate jurisdiction precludes lower federal courts from engaging in appellate

review of state court proceedings. Id. “The Rooker-Feldman 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., 544 U.S. at 284. Thus, Rooker-Feldman deprives a

lower court of jurisdiction only when the cause of the plaintiff’s complaints is the state judgment

itself. McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006). To determine whether

Rooker-Feldman applies, we must look to the “source of the injury the plaintiff alleges in the

federal complaint” and determine if the injury is the state court itself, or another source—such as

a third party’s actions. Id. at 393. However, if the third party’s actions “are the product of a

state court judgment, then a plaintiff’s challenge to those actions are in fact a challenge to the

judgment itself.” Id. at 394.

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The district court found that all the actions complained of were the product of the state

court judgment and that the Pletoses’ arguments otherwise were attempts to relitigate issues

already decided by the state courts. The Pletoses, however, argue that the injuries they allege

were caused not by the state court judgment, but by the actions of various LWA members

seeking to collect on that judgment and continue to collect LWA-related fees. An examination

of their claims proves otherwise.

First, the Pletoses argue that their FDCPA claims are against new parties and in response

to new alleged debts. But the “new parties” are simply LWA members for their conduct in that

capacity and relate to the assessments of LWA debts. The alleged debts include amounts

incurred prior to this suit—and which the state court already determined were valid—as well as

fees sustained in the attempt to assess and collect those amounts. While some amounts alleged

fall outside of those addressed in state court, they flow from the very same conduct and, as

addressed below, the Pletoses’ attacks are identical to those lodged in state court. While FDCPA

claims often involve allegations of misconduct in underlying state-court litigation, and prior

litigation does not itself trigger Rooker-Feldman, the Pletoses’ claim seeks to invalidate both the

right to assess, and the manner in which LWA assessed and collected, fees. And the state court

has already ruled on each. Even claims against “third parties”—the Makower Defendants—are a

direct result of the state court judgment.

Next, in their RICO claim, the Pletoses again argue that the homeowners association dues

were unsubstantiated, that the liens were not valid, and that the LWA members were improperly

elected or appointed, thereby eliminating their ability to assess the fees and obtain the liens. All

of these arguments were disposed of at the state level. Likewise, the Pletoses’ fraud claims

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allege that the debt is unsubstantiated and that the LWA Defendants have no legal right to collect

the debt. The state court squarely denied this very argument.

Similarly, the Pletoses’ abuse of process claims allege, essentially, that the previous

litigation was fraudulent and vexatious. This very claim belies the Pletoses’ contention that the

defendants here are different and that the difference negates application of the Rooker-Feldman

doctrine. The Pletoses could not sue LWA members for abusing the litigation process when

those members were not personally party to that suit. Any claims would thus be necessarily

brought against LWA. Instead, this claim illustrates that the parties are largely the same and the

Pletoses seek to circumvent or obviate the result of their litigation against LWA. While this

Circuit has found that Rooker-Feldman did not preclude such abuse of process claims when the

injury flowed from independent abuse rather than the state court judgment itself, here, the claims

are related to the state litigation. See Todd v. Weltman, Weinberg & Reis Co., 434 F.3d 432,

436-37 (6th Cir. 2006). And if LWA’s counterclaim was vexatious, frivolous, or otherwise

abusive, the Pletoses could have moved to dismiss the counterclaim throughout that litigation.

The Pletoses’ claim for an accounting seeks only to determine the “rights and

responsibilities of the parties based on facts surrounding the alleged account statement and

unsubstantiated billing notices from 2013 through 2016.” (RE. 1, PageID #27.) Again, the state

court has determined what the rights and responsibilities of the parties are, finding that the

Pletoses owed LWA $20,553.64 for the previously unpaid dues. The state court found the fees

properly assessed and reaffirmed LWA’s right to do so. We cannot disturb that finding. Though

the Pletoses purportedly seek to challenge later-years’ missed payments, their reasoning is nearly

identical.

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Finally, the Pletoses’ claim for injunctive relief is equally foreclosed. It not only asks

that we order LWA not to enforce its judgment against the Pletos, but that we re-determine what

LWA is owed. This is nothing more than an attempt to avoid paying the homeowners

association fees that the state court already determined they must—this time for a longer period

of delinquency, as well as on a prospective basis.

The nature of each of the Pletoses’ claims shows that they stem from the state court

litigation. “A court cannot determine the source of the injury ‘without reference to the plaintiff’s

request for relief.’” Berry v. Schmitt, 688 F.3d 290, 299 (6th Cir. 2012) (citation omitted). Here,

virtually all of the Pletoses’ requested relief seeks to negate LWA’s ability to assess or collect

homeowners association fees, either by attacking LWA’s right to do so or their collection

methods. Thus, with slight nuances, the Pletoses effectively seek to appeal the state court order

finding that homeowners association fees were properly assessed. Under Rooker-Feldman, the

district court properly found that it lacked jurisdiction to review that decision. As do we.

IV.

The only conceivable claims that might not be barred by Rooker-Feldman are the

FDCPA claims in which the Pletoses allege that various defendants attempted to collect debt

from them, whether related to the judgment entered or otherwise. We have previously declined

to apply Rooker-Feldman over arguably similar claims. See Brown v. First Nationwide Mortg.

Corp., 206 F. App’x 436, 439–40 (6th Cir. 2006) (finding jurisdiction because the injury resulted

from the actions of various people involved in the mortgage foreclosure proceedings before the

state judgement was entered). But this is a different case. The Pletoses’ FDCPA claims are

nonetheless caused by state court judgment. See Durham v. Haslam, 528 F. App’x 559, 563 (6th

Cir. 2013); (RE. 1, PageID #7.)

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Even if we were to assess those claims on the merits, the district court’s opinion

adequately addressed them, providing numerous grounds for dismissal. First, the majority of the

alleged violations fall outside the one-year statute of limitations. See 15 U.S.C. § 1692k(d).

Second, the communications with CNA Surety are barred by collateral estoppel, as the state

court already ruled on the contention that the Makower Defendants were not permitted to contact

the company. Third, the remaining communications that are not barred by the statute of

limitations do not, as alleged, violate the FDCPA. The district court fully explained why each

innocuous communication was not violative of the FDCPA. (RE 42, PageID #1504-07.)

V.

The Pletoses lastly claim that the district court abused its discretion when it denied their

Motion for Leave to File a Supplemental Complaint, instanter. Generally, the district court “has

discretion to deny a motion to amend a complaint after an answer has been filed . . .” Rose v.

Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). That said, “when a district

court is presented with a motion to supplement under Fed. R. Civ. P. 15(d) it must at the very

least issue a ruling on that motion.” Spies, 48 F. App’x at 527. Though the district court entered

a ruling, it did not specifically state a basis for its decision. See Rose, 48 F. App’x at 527.

Still, we will not find that the district court abused its discretion. The Pletoses’ motion

was filed almost a year after their initial pleading, eight months after their first amended

complaint, and one day before oral argument was scheduled on Defendants’ Motion for

Summary Judgment and Motion to Dismiss. See Wade v. Knoxville Utilities Bd., 259 F.3d 452,

459 (6th Cir. 2001) (affirming denial of leave to amend, in part, because it was sought a year-

and-a-half after filing of complaint). While not filed post-judgment here, the district court

found—and we agree—that that the state court had entered judgment on the issues of this case

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years before. Given the prospect of future unnecessary delay, the district court was within its

discretion when it denied the motion. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc.,

401 U.S. 321, 330 (1971) (explaining that it was not an abuse of discretion to deny reopening a

case because the motion to reopen to submit additional proof was untimely) (citations omitted);

Patrick v. CitiMortgage, Inc., 676 F. App’x 573, 575 (6th Cir. 2017); In re Wade, 969 F.2d 241,

250 (7th Cir. 1992) (“The district judge here exercised his discretion to exclude an extraneous

matter to be included in already omnifarious litigation. This was not an abuse of discretion.”).

Moreover, abuse of discretion by denying a motion to supplement amounts only to

harmless error when the proposed amendment would not survive a 12(b)(6) motion to dismiss.

See Rose, 203 F.3d at 421. Although not explicitly stated by the district court, the Pletoses’

proposed additions would not save it from dismissal. The allegations the Pletoses wished to

supplement simply built on the claims being dismissed under Rooker-Feldman, and for failure to

state a claim and collateral estoppel. Allowing the Pletoses to so supplement would have been

futile.

VI.

The district court correctly found that Rooker-Feldman applied to the entirety of the

Pletoses’ claims. While purportedly brought under partially different statutes, against arguably

different parties, in a different forum, the gravamen of the Pletoses’ claims is the same: an

attempt to avoid paying homeowners association fees. The state court already determined that

they must, and we cannot and do not revisit that ruling.

Though the claims are barred by Rooker-Feldman, the district court provided additional

reasoning as to why each claim fails—including failure to state a claim, the statute of limitations,

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res judicata, and collateral estoppel. Even were we to find jurisdiction, we would adopt the

reasoning of the district court and its conclusions and deny the Pletoses’ appeal. We AFFIRM.

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RALPH B. GUY, JR., Circuit Judge, concurring. I respectfully disagree with the

majority’s application of the Rooker-Feldman doctrine to allegations of defendants’ conduct

occurring after the issuance of the state-court judgment against plaintiffs. Although richly

interspersed with insinuations that the state-court judgment was unjust, the amended complaint

alleges that the methods defendants used to collect the state-court judgment violated the FDCPA.

Allegations of unlawful post-judgment conduct included attempts to collect a debt in excess of

the judgment, refusal to verify that debt, and violation of statutes governing whom a debt

collector may contact and how.

The majority acknowledges this, but concludes that plaintiffs’ alleged injuries are

“nonetheless caused by the state court judgment.” In fact, plaintiffs’ injury stems not from the

state-court judgment, but from the attempts to collect on it. A jury could, in theory, find for such

a plaintiff without undermining the state-court judgment. The availability of statutory damages

under the FDCPA is proof of this. I am concerned that the majority’s analysis could be used to

insulate any judgment-collection activity—however brazenly unlawful—from the FDCPA or

other laws, whenever Rooker-Feldman prevents us from reviewing the underlying state-court

judgment and injuries caused by that judgment.

I concur in the result, however, because the majority adequately sets forth alternative

grounds for disposing of plaintiffs’ FDCPA claims. I would rely on those grounds exclusively in

affirming the district court on this issue.

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