Witz v. Fishman Group, P.C. et al

Filing 20

MEMORANDUM AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS [DOC. 13]. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL WITZ,
Plaintiff,
vs.

Case No. 17-10916

FISHMAN GROUP, P.C., MARC A.
FISHMAN,

HON. AVERN COHN

Defendants.
______________________________________________/
MEMORANDUM AND ORDER
DENYING DEFENDANTS’ MOTION TO DISMISS (Doc. 13)1
I. Introduction
This is a debt collection case. Plaintiff Michael Witz (Witz) is suing Marc A.
Fishman (Fishman), an attorney, and Fishman Group, PC (Fishman Group), a law firm,
(collectively the Fishman Defendants). Witz says that the Fishman Defendants
improperly collected on a debt which had been discharged in bankruptcy.
Before the Court is the Fishman Defendants’ motion to dismiss. For the reasons
that follow, the motion is DENIED.
II. Background
In 2011, Camelot Villa Macomb Township Park, LLC (Camelot Villa) through
Fishman Group and Fishman, sued Witz to collect on a debt owed to it in the amount of
$11,657.62. Camelot Villa later obtained a judgment against Witz on the debt. After all
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Although originally scheduled for hearing, upon review of the parties’ papers the
Court deems these matters appropriate for decision without oral argument. See Fed. R.
Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).

of this happened, on November 25, 2015, Witz filed for Chapter 7 Bankruptcy and
included the debt to Camelot Villa in his bankruptcy filing. On March 1, 2016, Witz
received a discharge.
Later in 2016, Witz's State of Michigan income tax return was garnished in the
amount of $300.00 for the debt. The garnishment was signed by Fishman. On
February 28, 2017, Witz received a notice from the Michigan Department of Treasury
which stated that his income tax refund was being withheld in the amount of $781.00
based on Camelot Villa's garnishment. This lawsuit followed.2
The Amended Complaint asserts the following claims against Fishman and the
Fishman Group:
Count III - Violations of the Fair Debt Collection Practices Act
Count IV - Violation of the Michigan Occupational Code
Count V -Violation of the Michigan Collection Practices Act
Before this court is the Fishman Defendants' motion to dismiss on the grounds
that (1) Witz's bankruptcy was not properly discharged because Witz did not give notice
of his bankruptcy to Camelot Villa and (2) Fishman cannot be held personally liable for
the acts of the corporate entity, the Fishman Group.3
III. Legal Standard
A Rule 12(b)(6) motion tests the sufficiency of a plaintiff's pleading. The Rule

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Witz originally sued Camelot Villa but later stipulated to dismiss it. (Doc. 16).

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The Fishman Defendants also mention that service was not “effective” and
elaborate on the manner and method of service. Because the Fishman Defendants
have not moved to dismiss on the grounds of improper service, no further discussion is
necessary.
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requires that a complaint "contain something more . . . than . . . a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) (internal citation omitted). A "plaintiff's obligation to
provide the 'grounds' of his 'entitlement to relief' requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do."
Id. "[T]hat a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of all the elements of a cause of
action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556
U.S. 662; 129 S. Ct. 1937, 1949 (2009). The court is "not bound to accept as true a
legal conclusion couched as a factual allegation."
"In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), th[e] Court
may only consider 'the facts alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the pleadings, and matters of which the [Court] may take
judicial notice.'" Murray v. Geithner, 624 F. Supp. 2d 667, 671 (E.D. Mich. 2009) (citing
2 James Wm. Moore et al., Moore's Federal Practice 12.342 (3d ed. 2000)); see also
Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997) (holding that a document
incorporated by reference in a complaint can be introduced by a defendant if it is not
attached by plaintiff).
IV. Analysis
As an initial matter, Witz has agreed to dismiss Count IV, claiming a violation of
the Michigan Occupational Code.
The Fishman Defendants first argue that the complaint must be dismissed
because it fails to plead facts to show that Witz's debt to Camelot Villa was properly
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discharged by the bankruptcy. An effective discharge of a debt in bankruptcy requires
the debtor to provide a known creditor with "actual written notice of the debtor's
bankruptcy filing." City of New York v. New York, N.H. & H.R. Co., 344 U.S. 293, 296
(1953).
Here, the Fishman Defendants contend that the complaint does not plead actual
written notice to Camelot Villa. As such, Witz cannot establish that the debt to Camelot
Villa was discharged. If it the debt was not properly discharged, the Fishman
Defendants say that the garnishment could not plausibly be in violation of the law.
The Fishman Defendants’ argument is not well-taken. Witz has alleged that the
Fishman Defendants, on behalf of Camelot Villa, were given actual written notice of
Witz's bankruptcy filing. The complaint alleges that Witz's bankruptcy attorney, the
Sikorski Law Firm, “called Defendant Fishman Group and spoke with Marc Fishman”
and informed him that Witz has filed for bankruptcy. (Doc. 8 at ¶ 11). The complaint
further alleges that on February 18, 2016, Witz’s bankruptcy attorney "faxed Mr. Witz's
Notice of Chapter 7 Bankruptcy Case and Meeting of Creditors to Fishman Group."
(Doc. 8, at ¶ 12.).
The Fishman Defendants contend that the notice was inadequate because a
notice was sent to the wrong address for Camelot Villa. The Fishman Defendants also
dispute that Witz’s bankruptcy attorney called and spoke with Fishman directly as
alleged in the complaint.
Regardless of whether the notice was sent to the correct address for Camelot
Villa, the complaint alleges that notice was given to Camelot Villa through the Fishman
Group and Fishman directly. Whether the notice to the Fishman Group is adequate
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requires further factual development beyond the complaint. At this point, the complaint
alleges notice to Camelot Villa via the Fishman Defendants sufficient to survive a
motion to dismiss.
B. Fishman's Individual Liability
The Fishman Defendants next argue that Witz has not pled sufficient facts to
present a plausible claim that Fishman may be individually liable for collecting a debt on
behalf of Camelot Villa. The Fishman Defendants argue that Fishman is protected by
the corporate entity and the complaint does not establish that piercing the corporate veil
under the alter ego doctrine is appropriate. In support, the Fishman Defendants cite
Ditty v. CheckRite, 973 F. Supp. 1320 (D. Utah 1997) for the proposition that "a lawyer
cannot be held individually liable for the actions of his firm unless Plaintiff can
successfully pierce the corporate veil." (Doc. 13 at 7).
The Fishman Defendants’ reliance on Ditty is misplaced. The court in Ditty went
on to say that an attorney "may be held personally liable under the FDCPA as a 'debt
collector.'" Ditty, 973 F. Supp. at 1338. More significantly, the Sixth Circuit has held
that an individual attorney at may be subject to individual liability for violations of the
FDCPA if there is proof that the individual is a “debt collector” and “does not require
piercing of the corporate veil." Kistner v. Law Offices of Micheal P. Margelefsky, LLC,
518 F.3d 433, 437-38 (6th Cir. 2008). The Sixth Circuit said that a debt collector is one
who is "regularly engaged, directly and indirectly, in the collection of debts" which could
include an attorney if the attorney is engaged in the practices of a debt collector. Id. at
438.
As such, Witz is not required to plead facts to support of piercing the corporate
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veil. Instead, Witz must allege facts to show that Fishman has regularly engaged,
directly and indirectly, in the collection of debts such that he may be subject to individual
liability. Witz has done so. The complaint alleges that "Fishman signed the
garnishment request after being notified that Mr. Witz filed for Chapter 7 Bankruptcy."
(Doc. 8 at ¶ 12). Additionally, the complaint alleges that Fishman "is the owner and
president of Fishman Group," that "Fishman created the practices, policies and
procedures of Fishman Group," and that Fishman Group "regularly engaged in the
practice of collecting debts." Id. at ¶ 17, 18, 34. These allegations are enough to state
a plausible claim for relief against Fishman individually as an alleged debt collector.
Whether Witz will prevail on his claim against Fishman must await further factual
development.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: August 7, 2017
Detroit, Michigan

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