2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-22-2011

Michael Ogbin v. Fein, Such, Kahn and Shepard

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2829

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Recommended Citation

"Michael Ogbin v. Fein, Such, Kahn and Shepard" (2011). 2011 Decisions. Paper 1763.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 09-2829

MICHAEL OGBIN; LYNN OGBIN, individually and as a class 

representative On behalf of others similarly situated, 

 Appellant

v.

FEIN, SUCH, KAHN AND SHEPARD, P.C.; 

JOHN DOE 1-100; JOHN DOE SERVICES 1-100

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-08-cv-04138)

District Judge: Honorable Dennis M. Cavanaugh

 

Argued June 29, 2010

Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges

(Filed: February 22, 2011)

 

Lewis G. Adler (Argued)

Woodbury, N.J. 08096

Attorney for Appellant

Gregory E. Peterson

Andrew C. Sayles (Argued)

Connell Foley

Roseland, N.J. 07068

Attorneys for Appellee 
2

____

 

OPINION

 

SLOVITER, Circuit Judge.

This case presents the same two questions of law that we recently decided 

in Allen v. LaSalle Bank, N.A., --- F.3d ----, No. 09-1466, 2011 WL 94420 (3d Cir. 

Jan 12, 2011): (1) whether a communication from a debt collector to a 

consumer=s attorney is actionable under ' 1692f(1) of the Fair Debt Collection 

Practices Act (AFDCPA@); and (2) whether the New Jersey litigation privilege 

absolves a debt collector of liability under the FDCPA. The District Court here

concluded that communications to attorneys are not actionable under the FDCPA 

and that the New Jersey litigation privilege creates an exemption to liability 

thereunder. In accordance with our decision in Allen, we will affirm in part, 

vacate in part, and remand for further proceedings.1

 

1

 The District Court had jurisdiction under 28 U.S.C. ' 1331 and this court has 

jurisdiction under 28 U.S.C. ' 1291. 

Law firm Fein, Such, Khan and Shepard, P.C. (AFSKS@) filed a foreclosure 

action on behalf of loan servicer, West Coast Realty, LLC (AWCRSI@), against 

Michael and Lynn Ogbin after they defaulted on the second mortgage on their 

home. At the request of the Ogbins= attorney, FSKS sent two letters (the APayoff 

Letters@) to the attorney for the Ogbins during the pendency of the foreclosure 

proceedings. The first letter set forth the outstanding principal and interest owed 
3

on the loans and FSKS=s attorney=s fees and costs. The second letter revised 

the first and itemized FSKS=s attorney=s fees and costs associated with the 

foreclosure action.

The Ogbins and WCRSI subsequently settled the foreclosure action. 

Thereafter, the Ogbins filed a class action complaint against FSKS, alleging that 

FSKS violated the FDCPA and asserting common law claims. Specifically, the 

complaint alleged that the Payoff Letters violated ' 1692f(1) of the FDCPA 

because they contained charges for which FSKS could not legally collect under 

state law or the mortgage contract, and because they contained overcharges in 

violation of various state statutory caps and/or were in excess of what was 

actually owed. See 15 U.S.C. '' 1692f, 1692f(1) (AA debt collector may not use 

unfair or unconscionable means to collect or attempt to collect any debt@ including 

A[t]he collection of any amount . . . unless such amount is expressly authorized by 

the agreement creating the debt or permitted by law.@). The complaint also 

asserted claims of negligence and intentional misrepresentation based upon the 

alleged misstatements in the Payoff Letters. 

The District Court dismissed the complaint on FSKS=s motion to dismiss for 

failure to state a claim upon which relief could be granted pursuant to Rule 

12(b)(6) of the Federal Rules of Civil Procedure. Ogbin v. Fein, Such, Kahn & 

Shepard, PC, No. 

08-cv-4138, 2009 WL 1587896 (D.N.J. June 1, 2009). In doing so, the Court 
4

held that the Ogbins= common law claims of intentional misrepresentation and 

negligence were barred by the New Jersey litigation privilege and similarly failed 

because the complaint did not allege any cognizable damages stemming from the 

alleged overcharges. Id. at *3. The Court also concluded that the Ogbins=

negligence claim was lacking on the basis that FSKS did not owe the Ogbins a 

duty of care because the Ogbins were represented by counsel in an action in 

which they were adverse to FSKS. Id. at *4. With respect to the Ogbins=

FDCPA claims, the Court held that they were barred by the New Jersey litigation 

privilege, and alternatively that the Payoff Letters, which were sent to the Ogbins=

attorney, were not actionable under the FDCPA. Id. at *2, *4. The Ogbins 

appeal.2

 

2

 We conduct a plenary review of the District Court=s order granting a motion to 

dismiss for failure to state a claim. Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 

187, 190 (3d Cir. 2009). We accept all factual allegations in the complaint as true, 

construe it in the light most favorable to the Ogbins, and determine whether, under any 

reasonable reading of the complaint, the Ogbins may be entitled to relief. See id.

There was no error in the District Court=s conclusion that the Ogbins failed 

to state common law claims of intentional misrepresentation and negligence. 

The Payoff Letters, which were sent by FSKS during the pendency of the 

foreclosure proceedings for the purpose of facilitating those proceedings, fall 

squarely within the scope of the New Jersey litigation privilege. See Hawkins v. 

Harris, 661 A.2d 284, 289 (N.J. 1995) (AThe absolute privilege applies to >any 
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants 

or other participants authorized by law; (3) to achieve the objects of the litigation; 

and (4) that have some connection or logical relation to the action.=@) (quoting 

Silberg v. Anderson, 786 P.2d 365, 369 (Cal. 1990)). Because the Ogbins=

common law claims are precluded by the litigation privilege, they cannot be the 

subject of liability against FSKS. See Rickenbach v. Wells Fargo Bank, N.A., 

635 

F. Supp. 2d 389, 401 (D.N.J. 2009) (A[T]he litigation privilege protects attorneys 

not only from defamation actions, but also from a host of other tort-related 

claims.@) (quotation omitted). Accordingly, we will affirm that part of the District 

Court=s judgment dismissing the Ogbins= claims of intentional misrepresentation 

and negligence.

On the other hand, this court=s decision in Allen requires remand of the 

Ogbins= FDCPA claims. In Allen, we concluded on substantially similar facts as 

alleged here, that letters to a debtor=s attorney are actionable under ' 1692f(1) of 

the FDCPA if those letters attempt to collect any amount not expressly authorized 

by the agreement creating the debt or permitted by law. --- F.3d at ----, 2011 WL 

94420, at *4. We also concluded that the New Jersey litigation privilege does 

not absolve a debt collector from FDCPA liability. Id. In light of Allen, we will 

vacate and remand that part of the District Court=s judgment dismissing the 

Ogbins= FDCPA claims. We leave to the District Court to determine whether the 
amounts FSKS sought in the Payoff Letters are not permitted by the agreement 

authorizing the Ogbins= debt or by state law, such that the Ogbins have stated 

viable claims under ' 1692f(1) of the FDCPA. 

Accordingly, we will affirm in part, vacate in part, and remand for further 

proceedings.