Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fabec v. Debt Management Partners, LLC

United States District Court, N.D. Ohio

December 23, 2019

Christina Fabec, On behalf of herself and all Similarly-situated consumers, Plaintiff,
v.
Debt Management Partners, LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          PAMELA A. BARKER, U.S. DISTRICT JUDGE.

         Currently pending are the following motions: (1) Joint Motion to Dismiss (Doc. No. 59) filed by Defendants Capital Management Holdings, LLC (“CMH”) and Debt Management Partners, LLC. (“DMP”); (2) Motion for Sanctions (Doc. No. 60) filed by former counsel for Plaintiff Christina Fabec; and (3) Defendant CMH's Cross Motion to Strike and for Sanctions (Doc. No. 61.) Also pending are the following discovery-related motions and papers: (1) Plaintiff Christina Fabec's Motion for Discovery pursuant to Fed.R.Civ.P. 56(d) (Doc. No. 48); (2) Defendant Capital Management Holdings, LLC's Motion for Protective Order (Doc. No. 51); (3) the Motion to Compel Discovery for Sanctions Hearing filed by former counsel for Plaintiff Christina Fabec (Doc. No. 75); (4) Defendant Debt Management Partners, LLC's Motion to Strike Motion to Compel or for leave to file a Supplemental Position Paper Instanter (Doc. No. 76); and (5) the Position Papers filed by Defendants CMH and DMP (Doc. Nos. 73, 74.)

         For the following reasons, Defendants' Joint Motion to Dismiss (Doc. No. 59) is GRANTED. The Motion for Sanctions filed by former counsel for Plaintiff Christina Fabec (Doc. No. 60) and the Cross Motion to Strike and for Sanctions by Defendant CMH (Doc. No. 61) are DENIED. All remaining motions (Doc. Nos. 48, 51, 75, 76) are denied as moot.

         I. Relevant Background

         On June 5, 2018, Plaintiff Christina Fabec filed a class action complaint in the Cuyahoga County Court of Common Pleas against Defendants DMP and CMH, on behalf of herself and a purported nationwide class of similarly situated consumers, asserting claims for violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq, (the "FDCPA"); the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., ("TPCA"), Ohio's Consumer Sales Practices Act, O. R.C. § 1345, et seq. ("CSPA") and state law claims of Invasion of Privacy and Civil Conspiracy. (Doc. No. 1-1.) Defendant DMP removed the action to this Court on July 6, 2018.[1] (Doc. No. 1.)

         Plaintiff moved for class certification on March 5, 2019, which both Defendants opposed. (Doc. Nos. 30, 32, 33.) On May 29, 2019, then-assigned District Judge Donald Nugent denied the motion as follows:

The Court has thoroughly and exhaustively reviewed Ms. Fabec's Motion for Class Certification, along with related briefing and exhibits. Based on the limited discovery that has been exchanged by the Parties, it is unclear whether class certification is appropriate relative to any of Ms. Fabec's statutory claims and, at this time, there are factual disputes which speak to the merits of Ms. Fabec's individual claims and the class certification issue which may only be properly addressed with the benefit of additional discovery. Accordingly, the Motion for Class Certification filed by Plaintiff, Christina Fabec, is hereby DENIED. The question of whether or not class certification is appropriate may be revisited by the Parties at a later date if warranted.

(Doc. No. 42.) Judge Nugent conducted a status conference the next day, during which he (1) instructed Defendant DMP to file a motion for summary judgment by June 28, 2019 regarding the issue of agency, and (2) held discovery between Plaintiff and DMP in abeyance. (Doc. No. 43.) The Court determined, however, that discovery should commence as between Plaintiff and Defendant CMH and set a discovery deadline of August 30, 2019. (Id.)

         On June 28, 2019, Defendant DMP filed its Motion for Summary Judgment. (Doc. No. 45.) On July 9, 2019, Plaintiff filed a “Memorandum in Opposition to Motion for Summary Judgment and, Alternatively, Motion for Discovery Pursuant to Fed.R.Civ.P. 56(d).” (Doc. No. 48.) Therein, Plaintiff argued DMP is not entitled to judgment in its favor with respect to the issue of agency. Plaintiff also asserted that both Defendants had impeded discovery throughout the course of the instant action and requested the opportunity to “complete full discovery in this matter in accordance with the civil rules before judgment could be considered against her.” (Id. at p. 14.) In particular, Plaintiff requested that the Court “lift its stay of discovery with respect to DMP to allow her to conduct discovery to properly supplement her opposition to the MSJ.”[2] (Id.)

         On July 5, 2019, this matter was re-assigned to the undersigned pursuant to General Order 2019-13.

         Shortly thereafter, on July 19, 2019, Defendant CMH filed a Motion for Protective Order. (Doc. No. 51.) Therein, CMH sought to prevent Plaintiff from taking several depositions in New York, including the deposition of CMH President, Daniel D'Elia. (Id.) Plaintiff opposed the motion. (Doc. No. 52.)

         On July 29, 2019, the Court issued an Order as follows:

Upon careful review, the Court finds additional discovery is warranted. Accordingly, Defendant DMP's Motion for Summary Judgment (Doc. No. 45) and Plaintiff's Motion to Strike Affidavits (Doc. Nos. 47) are denied without prejudice subject to refiling after the close of discovery. The Court has further determined that mediation would be fruitful at this time and hereby refers this matter to Magistrate Judge Baughman to conduct a mediation conference within the next 30 days. All discovery is stayed pending mediation. If this matter does not settle, the Court will conduct a telephonic status conference with lead counsel shortly thereafter. Plaintiff's Motion for Discovery (Doc. No. 48) and Defendant Capital Management Holdings, LLC.'s Motion for Protective Order (Doc. No. 51) are held in abeyance at this time and will be revisited after mediation proceedings have concluded.

(Doc. No. 53.) A mediation conference was conducted on September 10, 2019. (Doc. Nos. 58.) The parties were not able to reach an agreement during the conference. (Id.)

         On September 16, 2019, Defendants CMH and DMP filed a Joint Motion to Dismiss the instant action with prejudice. (Doc. No. 59.) Therein, Defendants assert that “following the court-ordered mediation in this case . . ., the parties themselves conferred directly and settled this case without counsel.” (Doc. No. 59-1.)

         Shortly thereafter, on September 20, 2019, counsel for Plaintiff filed a Motion for Sanctions. (Doc. No. 60.) Therein, counsel argued that “CMH has gone behind the back of Plaintiff's counsel and, surreptitiously, contacted Ms. Fabec.” (Id.) Counsel maintained that CMH “induced Ms. Fabec to secretly accept a settlement offer without the advice of counsel” and has thereby “driven a wedge between Ms. Fabec and her counsel.” (Id.) Counsel stated that, on September 13, 2019, Ms. Fabec's husband “called Plaintiff's counsel to inform them that their services were no longer needed.” (Id. at p. 2.) Counsel asserted that CMH's “coercive conduct is an affront to the judicial process and warrants sanctions, ” including an Order (1) requiring CMH to pay Plaintiff's Counsel's attorneys' fees and costs; (2) compelling CMH to produce “overdue discovery” identifying class members; and (3) allowing amendment of the Complaint to substitute a new class representative. (Id. at pp. 9-10.)

         Defendant CMH responded by filing a Brief in Opposition and Cross-Motion to Strike and for Sanctions. (Doc. No. 61.) CMH argues as follows:

Ultimately, in frustration, one of CMH's principals, Mr. Dan D'Elia, contacted plaintiff's husband and offered to settle all plaintiff's claims against both defendants for the sum of $10, 000. Mr. Fabec asked why Mr. D'Elia would offer so much monev. Mr. D'Elia responded that Mrs. Fabec had rejected all defendants' previous offers, $6, 000 in August, 2018 and a higher number in August, 2019, so Mr. D'Elia thought he would offer a little more. Mr. Fabec then asked what previous offers Mr. D' Elia was talking about because neither he nor his wife, the plaintiff, had ever heard about any offers having been made.
Mr. D'Elia told Mr. Fabec the first offer to settle was made at the beginning of the lawsuit back in August 2018 and the amount was $6, 000. By text message, Mr. Fabec told Mr. D'Elia that the Fabecs had never been told about that offer. By text message, Mr. Fabec informed Mr. D'Elia that the Fabecs would ‘probably' have taken the $6, 000 offer and settled then had they known about the offer. At one point, Mr. Fabec informed Mr. D'Elia by text message that Mr. Fabec had called one or another of the Fabec attorneys and asked whether any offers to settle had been made by defendants because he and his wife wanted the matter concluded and the attorney said, ‘no.'
Mr. Fabec also told Mr. D'Elia that Mr. Fabec had both of the Fabec attorneys on the telephone at the same time and told those attorneys . . . [that] the Fabecs were going to take Mr. D'Elia's offer and the services of Messrs. Fine and Frederick were no longer required.

(Id. at pp. 2-4) (citations omitted).[3] At some point that day, Mr. D'Elia contacted CMH's attorney herein, Dean Hoover, and informed him that the parties had reached a settlement. (Id. at p. 4.) Mr. D'Elia asked Mr. Hoover for “a simple way to document the settlement.” (Id.) Mr. Hoover provided Mr. D'Elia with a “form of endorsement” that Mr. D'Elia could handwrite on the back of the check given to Ms. Fabec, which included a release of “all claims I made or could have made in this lawsuit.” (Id.) Subsequently, Mr. D'Elia forwarded to Mr. Hoover a copy of the check that had been negotiated by Ms. Fabec, “which was accepted and cashed in full satisfaction of all her claims against CMH and CMP.” (Id.)

         In its Opposition/Cross-Motion, CMH argues the Motion for Sanctions filed by former counsel for Ms. Fabec should be stricken because they were discharged by Ms. Fabec on September 13, 2019 and, therefore, had no authority to file the Motion on her behalf. (Id. at p. 5-7.) CMH further asserts that “the Motion is based on the false legal premise that CMH did something wrong when its principal decided to talk settlement with plaintiff's husband and/or that CMH's counsel did something wrong in providing ‘legalistic language' for his client's use.” (Id. at p. 8.) CMH maintains that it did nothing to undermine plaintiff's relationship with her former counsel, arguing “the attorneys did that to themselves when [they] . . . failed to inform the Fabecs of settlement offers made by defendants.” (Id. at p. 12.) Lastly, CMH asks the Court to impose sanctions on Plaintiff's former counsel. CMH asserts that Plaintiff's former counsel, Messrs. Frederick and Michael ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.