United States District Court, D. Colorado
Charles Schendzielos, Plaintiff: Nancy Clarice Johnson, Nancy
C. Johnson, Attorney at Law, Lakewood, CO.
David Silverman, Defendant: David Silverman, David Silverman
Attorney & Counselor At Law, LLC, Englewood, CO.
Irvin Borenstein, Leslie Ann Freiberg, Borenstein &
Associates, LLC, a Colorado Limited Liability Corporation,
Defendants: Irvin Allen Borenstein, Borenstein & Associates
LLC, Centennial, CO.
Brooke Jackson, United States District Judge.
matter is before the Court on the motion to dismiss [ECF No.
11] from defendants, Irvin Borenstein, Leslie Ann Freiberg,
and Borenstein & Associates, LLC (collectively BAA), and on
defendant David Silverman's motion to dismiss [ECF No.
12]. For the reasons stated below, BAA's motion to
dismiss is denied, and Mr. Silverman's motion to dismiss
case involves an alleged violation of the Fair Debt
Collection Practices Act (FDCPA). ECF No. 11 at 1. The
plaintiff, Mr. Charles Schendzielos, is a resident of Denver,
CO. ECF No. 9 at ¶ 1. BAA is a law firm in Centennial,
CO with a debt collection practice. Id. at ¶ 5.
It was formerly known as Silverman & Borenstein, PLLC.
Id. at ¶ 5. At the time of filing, Mr.
Borenstein was a managing member at BAA. Id. at
¶ 13. Ms. Freiberg was an associate attorney at BAA.
Id. Mr. Silverman practices law as David Silverman
Attorney & Counselor at Law, LLC in Englewood, CO.
Id. at ¶ 2.
case began because Mr. Schendzielos owed $6,854.68 to
Barclays Bank Delaware for an unpaid credit card debt. ECF
No. 11 at 2. The bank hired BAA (then operating as Silverman
& Borenstein, PLLC) to collect the debt. ECF No. 9 at ¶
7. BAA began legal proceedings against Mr. Schendzielos in
Denver County Court. ECF No. 11 at 2. Mr. Schendzielos
answered the civil complaint, and the matter was set for
trial. ECF No. 9 at ¶ 7. Before trial, the parties
settled the case and entered into a stipulation. ECF No. 11
at 2. The stipulation was filed on March 28, 2013. ECF No. 9
at ¶ 7.
the terms of the stipulation, Mr. Schendzielos agreed to pay
the bank $4,500 in installments and to dismiss his
counterclaim with prejudice. ECF No. 11 at 2. If Mr.
Schendzielos failed to make a payment on time, the bank could
seek judgment for the " entire amount claimed in the
complaint less any payments received." ECF No. 11 at
2-3. The stipulation also provided that the bank must notify
Mr. Schendzielos in writing ten days before seeking full
judgment. Id. at 3.
Mr. Schendzielos allegedly failed to make a timely payment,
BAA filed " a Motion For Entry Of Default Judgment On
Broken Stipulation" in Denver County Court on September
19, 2014. ECF No. 9 at ¶ 8. The motion claimed that the
defendants were entitled to judgment. Id. Mr.
Schendzielos alleges that BAA's motion misrepresented the
legal status of his debt. Id. at ¶ 8. He
describes four false representations contained in the motion:
(1) it indicated that Mr. Schendzielos had not made a timely
answer to the complaint; (2) the motion did not mention that
the bank had failed to give notice of the alleged default as
required by the stipulation; (3) the motion did not
acknowledge that Mr. Schendzielos had given the bank a timely
cure payment for the alleged default; and (4) the motion
" falsely conveyed" to the Denver County Court that
Mr. Schendzielos " was in default with the court."
the motion was filed, Mr. Schendzielos' counsel of
record, Mr. Daniel Schendzielos, contacted Ms. Freiberg at
BAA. Id. at ¶ 9. Ms. Freiberg acknowledged that
the bank had failed to comply with the stipulation by not
sending notice to Mr. Schendzielos. Id. According to
Mr. Schendzielos, neither Ms. Freiberg nor anyone else at BAA
took action to correct the " fraud they had committed
upon the Denver County Court."  Id. Based
on the representations in the motion, and without awaiting a
response from Mr. Schendzielos, the court entered judgment on
September 23, 2014. Id.
Schendzielos brought a motion to vacate judgment on September
29, 2014. Id. at ¶ 11. The parties resolved
their dispute without further court involvement. ECF No. 11
at 3. On January 26, 2015, BAA filed a motion to dismiss with
prejudice that was granted by the state court judge.
Id. Mr. Schendzielos claims that he is entitled to
attorney fees and costs in connection with this case. ECF No.
9 at ¶ 16; 15 U.S.C. § 1692k(a)(1). He also argues
that the defendants are liable for his damages for his
emotional distress associated with their unlawful conduct.
I. Standard of Review
reviewing a motion to dismiss, the Court must accept the
well-pleaded allegations of the complaint as true and
construe them in the plaintiff's favor. However, the
facts alleged must be enough to state a claim for relief that
is plausible, not merely speculative. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). A plausible claim is a claim that "
allows 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). Allegations that are purely
conclusory are not entitled to an assumption of truth.
Id. at 681. However, so long as the plaintiff offers
sufficient factual allegations such that the right to relief
is raised above the speculative level, he has met the
threshold pleading standard. See e.g.,
Twombly, 550 U.S. at 556; Bryson v.
Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
Borenstein & Associates' Motion to Dismiss
contends that Mr. Schendzielos has failed to state a claim
upon which relief can be granted. ECF No. 11 at 5.
Accordingly, BAA has moved to dismiss on the theory that a
false statement violates the FDCPA only if it is made to the
consumer or to a third party with a special relationship to
the consumer. Id. at 2. BAA alleges that a false
statement made to a state court judge is not actionable.
Id. at 5.
enacted the FDCPA in 1977 " to eliminate abusive debt
collection practices by debt collectors." 15 U.S.C.
§ 1692. The FDCPA regulates interactions between
consumer debtors and " debt collectors."
Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir.
2002). Therefore, a defendant can be held liable only if she
is a debt collector within the meaning of the
FDCPA. James v. Wadas, 724 F.3d
1312, 1315-16 (10th Cir. 2013).
FDCPA contains a number of broad prohibitions: for example,
the act proscribes harassment or abuse; false or misleading
representations; and numerous delineated " unfair
practices" during the collection of debts.
Johnson, 305 F.3d at 1117; § 1692d-f. Under the
section covering civil liability, the FDCPA allows a
plaintiff to recover actual and statutory damages. §
1692k. The plaintiff need not show any actual damage to be
entitled to damages up to $1,000 and costs and attorney's
fees." Id. See Miranda v. Praxis Fin.
Solutions, Inc., No. 13-CV-0931-WJM-MWJ, 2014 WL
5504745, at *2 (D. Colo. Oct. 31, 2014).
issue in this case is § 1692e, which prohibits a debt
collector from using " any false, deceptive, or
misleading representation or means in connection with the
collection of any debt." § 1692e. In addition to
this general ban, § 1692e lists a number of actions that
are per se violations. In interpreting this section, courts
have disagreed about whether § 1692e covers a debt
collector's representations to a state court judge.
SeeHemmingsen v. Messerli & Kramer, PA,
674 F.3d 814, 818 (8th Cir. 2012) (" [T]he circuit
courts have struggled to define the extent to which a debt