Fontell brought suit against her Homeowner’s Association (“HOA”)alleging violation of the FDCPA, the Maryland Consumer Debt Collection Act (“MCDCA”) and the Maryland Consumer Protection Act (“MCPA”). When the district court did not grant her summary judgment on these claims, she appealled.
The Court of Appeals held that her assertion that the HOA violated the MCDCA by untimely bringing suit against her was not supported by evidence sufficient as a matter of law to grant summary judgment under Rule 56(a). The property management company, as it was always responsible for collecting the homeowner’s dues and not just after there was a default, did not constitute a “debt collector” under the FDCPA, as a default “does not occur immediately upon a debt becoming due, unless the terms of the parties’ relevant agreement dictate otherwise.” See Alibrandi v. Fin. Outsourcing Servs., Inc., 333 F.3d 82, 86-87 & n.5 (2d Cir. 2003). Lastly, because Fontell failed, prior to the entry of a final judgment, to properly allege her claims that the filing of a lien against her condo constituted the unauthorized practice of law, the district court did not abuse its discretion in considering such allegations.
Although, Fontell failed to timely raise the assertion that filing for a HOA lien constituted the practice of law, this does not mean that such a practice should not be prohibited. In North Carolina, claims of lien are filed with the Clerk of Superior Court, wherein non-individuals, such as a HOA, must be represented by an attorney. Compare this with small claims court, where that requirement is waived.
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