Opinion
16-P-620
05-05-2017
Barry FINKEL v. HARMON LAW OFFICES, P.C., & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Barry Finkel, sued defendants Green Tree Servicing, LLC (Green Tree), the servicer of his residential mortgage loan, and its counsel, Harmon Law Offices, P.C. (Harmon), asserting unfair debt collection-based claims against each. Allegedly, Green Tree and Harmon, acting jointly, wrongfully added disputed and unverified "debt" onto Finkel's mortgage contract, over his protests, and unfairly continued collection efforts, under threat of foreclosure, without verifying the authenticity of the disputed debt. Finkel paid the debt and then commenced this suit, claiming that Harmon (and Green Tree) violated the Massachusetts debt collection regulations, see 940 Code Mass. Regs. §§ 7.00 (2012), and consumer protection statutes, G. L. c. 93A, §§ 2, 9. Harmon filed a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). Harmon subsequently filed a special motion to dismiss under G. L. c. 231, § 59H. The motion judge denied both motions. As to the special motion to dismiss (which is the only portion of the order on appeal), the judge ruled that Finkel's claims against the firm were based on conduct separate and apart from petitioning activity by Harmon. Harmon appeals. For the reasons that follow, we affirm.
Other parties sued by Finkel are not implicated in this appeal.
1. Background. Finkel owns a single residential unit in the Goldsmith Arboretum Condominium, a three-unit complex in the Jamaica Plain section of Boston. Since 1988, when the legal authority of the original sponsors expired, the unit owners have not lawfully established an association, or trust, to handle the affairs of the condominium. Rather, the unit owners, by mutual agreement, managed the concerns of the condominium and its common areas, until November of 2012, when Finkel's fellow unit owners, Nancy Marks and Margaret Lys Hunt, purported to unilaterally install themselves as trustees of the condominium. Finkel alleges that they did so without complying with the legal requirements of the master deed and the by-laws. Over Finkel's protests respecting their legal authority, Marks and Hunt made demand that he pay certain condominium costs. Finkel refused. Marks and Hunt engaged counsel and commenced two separate actions against Finkel in the District Court (see G. L. c. 183A, §§ 6 [a ][i] and 10[b][4] ); in both cases, the trustees added Green Tree as a nominal defendant. Both District Court cases were dismissed once Green Tree paid the disputed condominium charges. Those paid charges and Harmon's fees were added to Finkel's mortgage debt. Green Tree and Harmon sought to collect the disputed debt, threatening foreclosure of Finkel's unit if payment was not timely made.
Section 59H, inserted by St. 1994, c. 283, § 1, requires that "the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based."
Finkel asserts that Harmon is liable for "claiming and collecting debts" from him that do not lawfully exist, in violation of 940 Code Mass. Regs. § 7.07(2) (2012) ; failing to verify the debts after he disputed their legitimacy, 940 Code Mass. Regs. § 7.07(8) (2012), which, individually or as a whole, run afoul of G. L. c. 93A, §§ 2, 9 ; and interfering with his mortgage.
Compare Federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 -1692p (2012), prohibiting, among other things, the "false representation" of the "character, amount, or legal status" of any debt, 15 U.S.C. § 1692e(2), and the "collection of any amount ... unless such amount is expressly authorized by the agreement creating the debt or permitted by law," 15 U.S.C. § 1692f(1). See Heintz v. Jenkins, 514 U.S. 291, 299 (1995) (law applicable to lawyers who regularly engage in debt collection, even if conduct involves litigation).
2. Statutory framework. General Laws c. 231, § 59H, commonly known as the Massachusetts anti-SLAPP statute, creates a system of rights and remedies, notably a "special motion to dismiss," that parties may use for the dismissal of a SLAPP suit or specific claims. Attorneys may, in appropriate situations, be immune from suit under § 59H when sued for having voiced the position of petitioning clients. See Hanover v. New EnglandRegional Council of Carpenters, 467 Mass. 587, 592 (2014) ; Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479, 486 (2017).
Strategic Litigation Against Public Participation.
Petitioning under § 59H includes "any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding." G. L. c. 231, § 59H. A central issue is whether the contested conduct is within the ambit of § 59H's protection. Duracraft Corp. v. Holmes Prod. Corp., 427 Mass. 156, 167-168 (1998). That is, the movant, Harmon, must show that its adversary's, i.e., Finkel's, claims are "based on [its] petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." McLarnon v. Jokisch, 431 Mass. 343, 348 (2000). The judge denied Harmon's motion for failing to make that showing, a ruling we review for legal error or abuse of discretion. Marabello v. Boston Bark Corp., 463 Mass. 394, 397 (2012).
Harmon's argument as to the allowance of a § 59H motion dismissing another defendant is directed to an extraneous matter beyond the scope of our review and, therefore, we do not address it.
3. Analysis. Harmon argues that Finkel's claims are solely based on its representation of Green Tree in the District Court cases filed by the condominium trustees. In this role, Harmon adds, it made "written or oral statement[s]" related to its clients' defense and resolution of those cases, conduct that constitutes protected petitioning activity under § 59H, for which it is immune from suit. Harmon's summary view as to what "petitioning" means under § 59H is correct. See Plante v. Wylie, 63 Mass. App. Ct. 151, 157 (2005) (attorney sued for voicing positions of petitioning client may file § 59H motion). Little is gained by this line of argument, however, because Finkel is challenging Harmon's postlitigation conduct, i.e., "claiming and collecting debts from Finkel that do not exist," in violation of 940 Code Mass. Regs. § 7.07(2) (2012), and G. L. c. 93A, §§ 2, 9. In short, Harmon's § 59H special motion was a misfit for Finkel's claims; Harmon has failed to cite any petitioning activity related to Finkel's claims, or to show that the latter followed from the former.
Thus, the portion of the order entered February 5, 2016, that denied Harmon's special motion to dismiss is affirmed.
Finkel's postargument request for appellate attorney's fees is denied. We also deny Harmon's request for attorney's fees.
So ordered.
Affirmed in part.