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Schendzielos v. Borenstein

United States District Court, D. Colorado

February 16, 2016

IRVIN BORENSTEIN; LESLI ANN FREIBERG; and BORENSTEIN & ASSOCIATES, LLC, a Colorado limited liability corporation, Defendants.



Judge R. Brooke Jackson

This matter is before the Court on plaintiff’s partial motion for summary judgment [ECF No. 35] and defendants’ motion for summary judgment [ECF No. 36]. For the reasons stated below, both motions are denied.


The following facts are undisputed except where otherwise noted. This case involves an alleged violation of the Fair Debt Collection Practices Act (FDCPA). ECF No. 35 at 6. The plaintiff, Charles Schendzielos, is a resident of Denver, CO. ECF No. 36 at ¶ 1. Borenstein & Associates, LLC (BAA) is a law firm in Centennial, CO. ECF No. 9 at ¶ 5. It was formerly known as Silverman & Borenstein, PLLC. Id. At the time of filing, defendant Irvin Borenstein was a managing member at BAA, and defendant Lesli Ann Freiberg was an associate attorney at BAA. Id. at ¶ 13.

This case began because Schendzielos owed $6, 854.68 to Barclays Bank Delaware for an unpaid credit card debt. ECF No. 35-2 at 1. The bank hired BAA (then operating as Silverman & Borenstein, PLLC) to collect the debt. ECF No. 35 at ¶ 2. BAA began legal proceedings against Schendzielos in Denver County Court. Id. Schendzielos answered the complaint, and the case was set for trial. Id. at ¶ 3. Before trial, the parties settled the case and entered into a stipulation (the Stipulation). Id. at ¶ 3. The Stipulation was filed on March 28, 2013. Id.

Under the terms of the Stipulation, Schendzielos agreed to pay the bank $4, 500 in installments and to dismiss his counterclaim with prejudice. ECF No. 35-2 at 1. If Schendzielos failed to make a timely payment, the bank could seek judgment for the full amount of the claim less any payments made plus interest. Id. at 2. The Stipulation also provided that the bank must provide in writing a notice of a right to cure ten days before seeking full judgment. Id.

After Schendzielos allegedly failed to make a timely payment, BAA filed “a Motion For Entry Of Default Judgment On Broken Stipulation” (the Motion) in Denver County Court on September 19, 2014. ECF Nos. 35 at ¶ 4; 35-3 at 1. The Motion claimed that defendants were entitled to default judgment. ECF No. 35 at ¶ 4. Schendzielos alleges that BAA’s motion misrepresented the legal status of his debt. Id. He lists four false representations contained in the Motion: (1) it indicated that 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 Schendzielos had made a timely cure payment for the alleged default; and (4) the Motion “falsely conveyed” that Schendzielos was in default with the Denver County Court. Id.

After the Motion was filed, Schendzielos’ counsel of record, [1] Daniel Schendzielos, contacted Freiberg at BAA. Daniel Schendzielos Affid. ECF No. 35-1 at ¶ 5. According to plaintiff, Freiberg acknowledged that the bank had failed to comply with the Stipulation by not sending notice to Schendzielos. Id. Plaintiff alleges that neither Freiberg nor anyone else at BAA took action to correct the false information in the Motion. ECF No. 35 at ¶ 6. Based on the representations in the Motion, and without awaiting a response from Schendzielos, the court entered judgment on September 23, 2014. Id.; ECF No. 35-4 at 1. Schendzielos brought a motion to vacate judgment on September 29, 2014. ECF Nos. 35-4; 35-8 at 1. The parties resolved their dispute without further court involvement. ECF No. 35-5. On January 26, 2015 BAA filed a motion to dismiss with prejudice that was granted by the state court judge a few days later. ECF No. 35-8 at 1. Schendzielos claims that he incurred $1, 269.50 in attorney’s fees and costs “directly related to setting aside the judgment[.]” ECF No. 35 at ¶ 7.

Plaintiff filed this action on March 19, 2015 alleging that the statements in the Motion violated the Fair Debt Collection Practices Act (FDCPA). ECF No. 1. Defendants filed a motion to dismiss on April 14, 2015 [ECF No. 11], which I denied on October 14, 2015.[2] ECF No. 33. Plaintiff and defendants subsequently filed their respective motions for summary judgment on October 30, 2015. ECF Nos. 35, 36.


I. Standard of Review

The Court may grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324. A fact is material “if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The Court will examine the factual record and make reasonable inferences therefrom in the light most favorable to the nonmoving party. Concrete Works of Colorado, Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). The moving party ...

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