Lott et al v. Vial Fotheringham LLP

Filing 43

OPINION & ORDER: The Court grants summary judgment that Defendant lawfully charged Plaintiffs for pre-suit attorneys' fees for collection work. The Court denies the parties' motions regarding whether Defendant lawfully charged Plain tiffs for other management fees. Regarding contractual interest rates on attorneys' fees, the Court grants summary judgment in Plaintiffs' favor as to both Lott and Chea. Defendants unopposed motion that it may lawfully collect unpaid asses sments and impose late charges at a rate of 30% per unpaid assessment against Plaintiffs is granted. Lastly, the Court denies Defendant's motion based on Chea's Covenant and Release. Signed on 10/12/2017 by Judge Marco A. Hernandez. . See 15-page opinion & order attached. (sss) Modified to correct text on 10/12/2017 (sss).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JANICE LOTT, on behalf of herself and
all others similarly situated;
KANIKA CHEA, on behalf of herself and
all others similarly situated,
Plaintiffs,
v.
VIAL FOTHERINGHAM, LLP,
Defendant.

Bret Knewston
Bret Knewston, Esq.
3000 NW Stucki Pl., Ste. 230-M
Hillsboro, OR 97214
Mark. G. Passannante
Boer & Passannante, P.S.
1001 SW Fifth Ave., Ste. 1220
Portland, OR 97204
Attorneys for Plaintiff

1 – OPINION & ORDER

No. 3:16-cv-00419-HZ
OPINION & ORDER

Jonathan M. Radmacher
McGowen Grisvold, LLP
1100 S.W. Sixth Ave., Suit 1600
Portland, OR 97204
Attorney for Defendant

HERNÁNDEZ, District Judge:
Plaintiffs Janice Lott and Kanika Chea (collectively “Plaintiffs”) bring claims under the
Fair Debt Collection Practices Act (“FDCPA”) against Defendant Vial Fotheringham, LLP.
Plaintiffs allege that Defendant engaged in abusive, deceptive, and unfair debt collection efforts
when attempting to collect overdue homeowners’ association (“HOA”) assessments.
Before the Court are the parties’ cross-motions for partial summary judgment regarding
Defendant’s right, or lack thereof, to impose or collect certain charges and interest. If the
disputed charges and interest were not authorized by contract or by statute, then Defendant’s
collection of them qualifies as an unfair debt collection practice under the FDCPA. Plaintiffs
argue that Defendant was not authorized to: (1) charge pre-suit attorneys’ fees for collection
work and for other management fees; and (2) impose contractual interest rates on prevailingparty attorneys’ fees in excess of 9%. Defendant moves for summary judgment that both the
charges and interest identified above are lawful. Defendant also generally moves for summary
judgment that the following may be collected: unpaid assessments, late charges at a rate of 30%
per unpaid assessment, costs, attorney fees, and interest on those items at rates set in the relevant
HOA documents. Lastly, Defendant argues that summary judgment should be granted in its favor
on all of Chea’s claims against it because she signed a covenant to release any claims arising
from the parties’ disputes. The Court grants in part both parties’ motions.
//

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BACKGROUND
A description of Lott and Chea’s allegations against Defendant can be found in the
Court’s prior Opinion & Order regarding Defendant’s motion to dismiss. See Op. & Order, Aug.
23, 2016, ECF 10. In sum, Plaintiffs fell behind on paying assessments to their HOAs for the
maintenance of common areas. Plaintiffs’ HOAs employed Defendant as their debt collector.
Defendant initiated collection lawsuits against Plaintiffs and prevailed. Defendant charged
Plaintiffs for attorneys’ fees associated with its collection work conducted prior to filing suit and
it collected other management fees arising from Plaintiffs’ communications with Defendant
regarding their delinquencies. Additionally, Defendant imposed interest on attorneys’ fees it was
awarded as the prevailing-party in its collection lawsuits at rates of 18% against Lott and 12%
against Chea respectively, which were higher than the standard statutory 9% rate. Plaintiffs
contend that the charges and interest rates described above were not authorized by Plaintiffs’
agreements with their HOAs or by statute.
For purposes of the motions currently before the Court, the relevant facts include the
texts of the HOAs’: declarations of covenants, conditions & restrictions; bylaws; and collection
resolutions.
I.

Lott
Lott’s property is subject to the rules of the Autumn Meadows Owner’s Association

(“AM HOA”). Zimmerman Decl. Ex. 1, ECF 31. AM HOA’s declaration (“AM Declaration”)
provides that the AM HOA’s Board of Directors (“AM Board”) “may adopt, modify or revoke
Rules and Regulations governing the conduct of persons and the operation or use of Lots and
Common Areas” and it may levy special assessments for the maintenance of common areas. Id.
at §§ 4.22, 5.4, 10.5. Further, the AM Board may also levy special assessments against an owner

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“[t]o collect amounts due to the Association from an Owner for breach of the Owner’s obligation
under the Declaration, the Bylaws, or the Rules and Regulations by vote of a majority of the
Board.” Id. at § 10.6. When an owner becomes delinquent on payment of its assessments, the
AM HOA, through the AM Board “or any management agent,” may file a lien on the owner’s
deed. Id. at § 10.8(b). “Once filed, such lien shall accumulate all future assessments or
installments, interest, late fees, penalties, fines, attorneys’ fees (whether or not suitor action is
instituted) and other appropriate costs properly chargeable to an Owner by the Association, until
such amounts are fully paid.” Id.
Regarding interest, fines, late fees, and penalties, the AM Board has discretion to “adopt
resolutions to set the rate of interest, and to impose late fees, fines and penalties on delinquent
assessments or for violations of the provisions of this Declaration, the Bylaws, any Rules and
Regulation . . . .” Id. at § 10.8(c). The AM HOA is required to communicate any such imposition
to all owners in writing at least thirty days before the effective date and “[s]uch impositions shall
be considered assessments which are lienable and collectible in the same manner as any other
assessment.” Id.
The AM HOA’s bylaws (“AM Bylaws”) give the AM Board the authority to adopt “rules
and regulations governing the use and maintenance” of common areas and to “establish fines and
penalties for the violation thereof.” Zimmerman Decl. Ex. 2, at § 7.1. The AM Bylaws state that
owners are obligated to pay 18% interest on late assessments per annum, as well as a “one-time
per assessment late charge not to exceed 30% of the delinquent amount.” Id. at § 10.
The AM Board passed a collection resolution (“AM Resolution”), stating that under the
AM Declaration and AM Bylaws, owners “shall be obligated to pay reasonable fees and costs
including, but not limited to, attorney fees incurred in connection with efforts to collect

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delinquent and unpaid assessments, regardless of whether suit or action is commences, and/or to
enforce the provision of the Declaration, Bylaws, rules and regulations of the Act.” Zimmerman
Decl. Ex. 3, at 1–2. The AM Resolution also provides that the “lien amount shall include all
collection costs to date, including attorney’s fees and the cost of preparing and/or recording the
lien.” Id. at 2–3.
II.

Chea
Chea’s property is subject to the rules of the Waterford Park Homeowners’ Association

(“WP HOA”). The WP HOA’s declaration (“WP Declaration”) states that upon a majority vote
of the owners, the board of directors (“WP Board”) may levy additional special assessments.
Zimmerman Decl. Ex. 4, at Art. IV(3). The WP Declaration gives the WP Board discretion to
charge fees for the maintenance of common areas including “the right to levy liens on any
Townhomes and charge interest for any fees not paid by the Owner(s) in accordance with the
provisions hereof.” Zimmerman Decl. Ex. 4, at Art. II(B). Such liens include annual and special
assessments “together with such interest thereon and costs of collection thereof.” Id. at Art.
IV(B)(2). If an owner becomes delinquent on their assessments, then the assessment will bear
interest at 1% per month until paid. Id. at Art. IV(B)(3)(A). Additionally, a delinquent owner
must pay a late charge of 30% of the portion of the delinquent assessment. Id. If the WP HOA
obtains a lien judgment or decree in its favor, the WP Declaration provides that the owner shall
be liable for “the Association’s court costs and disbursements and reasonable attorneys’ fees to
be fixed by the court, such costs, disbursements and attorneys’’ fees to be further secured by
such lien.” Id. at Art. IV(B)(3)(C).
The WP HOA’s bylaws (“WP Bylaws”) provides that the WP Declaration “shall establish
a basis to assess and collect a prorate share of the annual budget from each Lot and Member and

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to enforce collection thereof, including lien rights against a Lot and Member.” Zimmerman Decl.
Ex. 5, at Art. IX(B).
The WP HOA passed a collection resolution (“WP Resolution”) stating that the “lien
amount shall include all collection costs to date, including attorney’s fees and the cost of
preparing and/or recording the lien, any notice of lien required by law.” Zimmerman Decl. Ex. 6,
at 2–3. The WP Resolution also provided “that all legal fees and costs incurred in the collection
of a delinquent account shall be assessed against the delinquent Owner and shall be collected as
an assessment provided in the Bylaws, the Declaration.” Zimmerman Decl. Ex. 5, at 3.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion and
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting former Fed. R. Civ. P. 56(c)). Once the moving party meets its initial burden of
demonstrating the absence of a genuine issue of material fact, the burden then shifts to the
nonmoving party to present “specific facts” showing a “genuine issue for trial.” Fed. Trade
Comm’n v. Stefanchik, 559 F.3d 924, 927–28 (9th Cir. 2009) (quoting Horphag Research Ltd. v.
Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007)). The nonmoving party must go beyond the
pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218
(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
//

6 – OPINION & ORDER

DISCUSSION
The FDCPA is designed to eliminate abusive debt collection practices by debt collectors
and to protect consumers against debt collection abuses. 15 U.S.C. § 1692. The Act states, in
relevant part, that “a debt collector may not engage in any conduct the natural consequences of
which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15
U.S.C. § 1692d. The FDCPA prohibits debt collection of any interest, fee, charge, or expense
“unless such amount is expressly authorized by the agreement creating the debt or permitted by
law.” 15 U.S.C § 1692f(1).
Plaintiffs’ position is twofold. First, that neither Plaintiffs’ HOAs’ governing documents
nor Oregon law authorized Defendant to charge Plaintiffs for pre-suit attorneys’ fees for
collection work or for other management fees. Plaintiffs do not contest that Defendant is entitled
to those attorneys’ fees awarded to it as the prevailing-party in its collection lawsuits. Second,
Plaintiffs argue that, regarding prevailing-party attorneys’ fees, Defendant is limited to imposing
interest at a 9% rate under Oregon law and may not use higher contractual rates of interest.
I.

Pre-Suit Attorneys’ Fees and Other Management Fees

The parties move for the Court to determine whether Defendant was authorized by
Oregon law or the HOAs’ governing documents to collect the challenged charges. Plaintiffs
challenge Defendant’s imposition of pre-suit attorneys’ fees and other management fees “related
to collection of assessments from non-attorneys,” such as “ledger update fees,” “delinquency
fees,” and “final notice fees.” Pl.’s Mot. Summ. J. 5–6, 13, ECF 20.
Oregon Law provides that a homeowners association may:
(n) Impose charges for late payment of assessments and attorney fees
related to the collection of assessments and, after giving written notice and
an opportunity to be heard, levy reasonable fines for violations of the

7 – OPINION & ORDER

declaration, bylaws, rules and regulations of the association, provided that
the charge imposed or the fine levied by the association is based:
(A) On a schedule contained in the declaration or bylaws, or an
amendment to either that is delivered to each lot, mailed to the mailing
address of each lot or mailed to the mailing addresses designated in
writing by the owners; or
(B) On a resolution of the association or its board of directors that is
delivered to each lot, mailed to the mailing address of each lot or mailed to
the mailing addresses designated in writing by the owners[.]
Or. Rev. Stat. (“O.R.S.”) § 94.630(1)(n) (emphasis added). As emphasized above, HOA boards
may collect attorney fees and charges related to collection of assessments based on either a
schedule contained in the declarations or bylaws or a board resolution. Furthermore, “[u]nless
the declaration or bylaws provide otherwise, fees late charges, fines and interest imposed
pursuant to ORS 94.630 (1)(L), (n) and (o) are enforceable as assessments under this section.”
O.R.S. § 94.709(5) (emphasis added).
The Court must also interpret the HOAs’ governing documents to determine whether they
authorize the disputed charges. Oregon courts follow three steps for interpreting a contractual
provision, including restrictive covenants such as those contained in the HOAs’ declarations and
bylaws. The first step is to look at the text of the contract:
When considering a written contractual provision, the court’s first
inquiry is what the words of the contract say. To determine that,
the court looks at the four corners of a written contract, and
considers the contract as a whole with emphasis on the provision
or provisions in question. The meaning of disputed text in that
context is then determined. In making that determination, the court
inquires whether the provision at issue is ambiguous. Whether
terms of a contract are ambiguous is a question of law. In the
absence of an ambiguity, the court construes the words of a
contract as a matter of law.
Yogman v. Parrott, 325 Or. 358, 361, 937 P.2d 1019, 1021 (1997) (quotation marks and citations
omitted); see also O.R.S. § 42.230 (stating that when constructing an instrument, the court
8 – OPINION & ORDER

should simply “ascertain and declare what it is, in terms or in substance, contained therein, not to
insert what has been omitted, or to omit what has been inserted” and when possible to give effect
to all provisions).
Plaintiffs’ argument that HOA boards can base certain charges and attorneys’ fees for
collection work only on the declarations or bylaws and not by resolution is unpersuasive. As
noted above, O.R.S. § 94.630(n)(1) provides that HOAs may impose charges for collection work,
including attorneys’ fees, based on either the governing documents or a board resolution. In this
case, both HOA boards passed collection resolutions authorizing Defendant to charge Plaintiffs
for the disputed collection costs and attorneys’ fees. Zimmerman Decl. Ex. 3, at 2–3; Ex. 6, at 3.
The plain language of O.R.S. § 94.630(1)(n)(B) authorizes HOA boards to take such action. Both
resolutions and O.R.S. § 94.709(5) state that these collection charges shall be collectable as
assessments. Id.; see also Goodsell v. Eagle-Air Estates Homeowners Ass’n, 280 Or. App. 593,
604, 383 P.3d 365, 372–73 (2016), review denied, 360 Or. 752, 388 P.3d 728 (2017)
(recognizing that an HOA which prevailed in its lawsuit had a right to attorneys’ fees in
connection with the action, even if the work was performed before the action was commenced).
Accordingly, Plaintiffs have not shown that, as a matter of Oregon law, Defendant was
prohibited from imposing charges for collection work. Plaintiffs’ motion is therefore denied.1
The Court grants Defendant’s motion for summary judgment that pre-suit attorneys’ fees
for collection work may be collected. Defendant is authorized by statute to charge Plaintiffs for
those costs. However, to the extent that Defendant moves that it may also charge Plaintiffs for
other management costs such as “ledger update fees,” the motion is denied. Plaintiffs allege, for
1

Plaintiffs’ additional argument that charges cannot be imposed by non-attorney third-party management companies
such as Defendant is without merit. As discussed above, both sets of relevant declarations and bylaws permit the
HOA boards to hire third-parties to carry out the HOAs’ obligations under the contracts. Further, the collection
resolutions authorize Defendant to charge Plaintiffs for any costs associated with collecting on their delinquent
assessments.

9 – OPINION & ORDER

example, that Defendant imposed charges for simply informing them of how much they owed.
The parties have not clearly identified all of the challenged charges and Plaintiffs admitted that
discovery is needed to establish those charges. Further, Defendant has not shown that it incurred
particular losses or costs related to those charges that are attributable to Plaintiffs. The Court
cannot determine whether Defendant was or was not authorized to collect on certain charges
when the parties have not sufficiently described those charges. Accordingly, the parties’ motions
regarding other management charges are denied.
II.

Interest Rate on Prevailing-Party Attorneys’ Fees
The parties dispute whether Defendant was limited to imposing interest on prevailing-

party attorneys’ fees using the standard statutory rate of 9% or whether it could use higher
interest rates provided in the HOAs’ governing documents. Once more, the FDCPA provides that
it is an unfair debt collection practice to impose interest unless that interest is “expressly
authorized” by the agreement creating the debt or by law. 15 U.S.C § 1692f(1). Under Oregon
law, “[i]nterest cannot be recovered in the absence of an agreement to pay interest unless
authorized by statute.” Mayer v. Bassett, 263 Or. 334, 348, 501 P.2d 782, 789 (1972). O.R.S.
§ 82.010(2)(d) provides that the rate of interest on “attorney fees and costs entered as part of [a]
judgment” is 9% per annum. “A judgment on a contract bearing more than nine percent interest
shall bear interest at the same rate provided in the contract as of the date of the entry of the
judgment.” O.R.S.§ 82.010(2)(e).
Defendant charged interest on prevailing-party attorneys’ fees at rates of 18% against
Lott and 12% against Chea based on their HOAs’ governing documents. Plaintiffs contend that
the interest rates on attorneys’ fees awarded to Defendant as the prevailing-party in its collection
actions cannot exceed 9% per year under O.R.S. § 82.010. Plaintiffs further argue that the higher

10 – OPINION & ORDER

interest rates contained in the HOAs’ governing documents did not apply to attorneys’ fees and
that the HOAs could not unilaterally pass resolutions setting interest rates higher than 9%.
A.

Lott
With respect to Lott, the AM Bylaws state that assessments “shall bear interest from the

due date at the rate of eighteen (18%) percent per annum, or at such rate as the Board may
establish from time to time, but not more than the lawful rate of interest under the laws of the
State of Oregon.” Zimmerman Decl. Ex. 2, at Art. X. The AM Declaration gives the AM Board
the discretion to adopt resolutions setting the rate of interest. Zimmerman Decl. Ex. 1, at
§ 10.8(c). The AM Resolution defines “assessment” as including attorney fees and interest.
Zimmerman Decl. Ex. 3, at 1.
Plaintiffs argue that the collection resolution cannot amend bylaws or declarations which
require a vote of the members; nor can a resolution “create new consequences for failing to pay
assessments where that consequence is already provided in the declaration or by laws.” Pl.’s
Reply 3, ECF 37. Plaintiffs, however, have not identified any Oregon statute or case prohibiting
a HOA from collecting interest on prevailing-party attorneys’ fees. Plaintiff’s reliance on P & C
Constr. Co. v. Am. Diversified/Wells Park II, is misplaced. 101 Or. App. 51, 789 P.2d 688
(1990). In that case, the Oregon Court of Appeals held that the defendant could not apply its
contractual interest rate to post-judgment costs and attorneys’ fees under O.R.S. § 82.010(d). Id.
at 60, 789 P.2d at 694. P & C Constr. is distinguishable on several grounds. First, the contract at
issue in that case involved a construction lien and its post-judgment interest rate of 12% matches
the statutory rate for construction contracts. Id. at 58, 789 P.2d at 682–93. Second, whether the
higher interest rate applied turned on issues of contractual privity not present in this case. Third,
the court in that case considered attorneys’ fees to be distinct from the principle amount at issue,

11 – OPINION & ORDER

and therefore not susceptible to the contractual post-judgment interest rate. Id. at 60, 789 P.2d at
694.
In this case, however, the AM HOA was not expressly permitted by its governing
documents to impose the higher contractual interest rate on prevailing-party attorneys’ fees. The
AM Declaration and AM Bylaws do not state that prevailing-party attorneys’ fees are treated as
part of the assessment and subject to the 18% interest rate. Rather, Article X of the AM Bylaws
state that each member is obligated to pay the AM HOA annual and special assessments and that
any assessments that are not paid within thirty days after the due day shall bear interest at a rate
of 18% per year. Zimmerman Decl. Ex. 2, at Art. X. The AM Bylaws continue by stating that the
AM HOA “may bring an action at law against the property for the collection of all interest, costs
and reasonable attorney’s fees for any such action and any appeal thereof, all of which shall be
added to the amount of such assessment.” Id. (emphasis added). The AM Bylaws permit the AM
HOA to impose 18% interest on annual and special assessments. Any costs and attorneys’ fees
may be added to the amount of the assessment. Those costs and attorneys’ fees do not become
part of the assessment subject to the contractual interest rate. Accordingly, the AM HOA did not
have the authority to use the AM Resolution to redefined assessments as including prevailingparty attorneys’ fees subject to the contractual interest rate. Therefore, the contract between Lott
and the AM HOA creating the debt did not expressly authorize the imposition of a higher
contractual interest rate on prevailing-party attorneys’ fees. The imposition of such a rate
qualifies as an unfair debt collection practice under the FDCPA. 15 U.S.C § 1692f(1).
The Court grants Plaintiffs’ motion for summary judgment that Defendant was
unauthorized to impose its contractual interest rate of 18% on prevailing-party attorneys’ fees as
against Lott. Defendant’s motion on this issue is denied.

12 – OPINION & ORDER

B.

Chea

With respect to Chea, the WP Declaration states that interest on assessments shall accrue
at 1% per month (12% per year). Zimmerman Decl. Ex. 4, at Art. VII(3)(A). The WP
Declaration also provides that “the Owner shall be liable for the HOA’s reasonable attorneys’
fees.” Id. at Art. VII 3(C). Neither the WP Declaration nor WP Bylaws explicitly state that
attorneys’ fees are included in the assessments subject to the contractual 12% interest rate. Only
the WP Resolution recasts attorneys’ fees as assessments subject to the contractual interest rate.
Zimmerman Decl. Ex. 6, at 3 (“[A]ll legal fees and costs incurred in the collection of a
delinquent account shall be assessed against the delinquent Owner and shall be collected as an
assessment as provided in the Bylaws, the Declaration.”).
The Court agrees with Plaintiffs that Chea and the WP HOA’s agreement does not
authorize imposing interest at the contractual rate on prevailing-party attorneys’ fees. Such an
authorization is not within the four corners of the WP Declaration or WP Bylaws. In the WP
Declaration, the 12% interest rate is associated only with assessments; attorneys’ fees are
discussed in a separate sub-provision of the document. Zimmerman Decl. Ex. 3, at Art.
VII(3)(A), (C).The WP Declaration does not define assessments as including attorneys’ fees. Id.
The WP Bylaws do not mention attorneys’ fees and only state that the WP Declaration shall
establish the basis for collecting assessments. Zimmerman Decl. Ex. 5, at Art. IX. The WP
Resolution cannot amend the terms of the WP Declaration and Bylaws by re-defining
“assessments” to include attorneys’ fees. Once more, under Oregon law, interest rates must be
authorized by the parties’ agreement. Mayer, 263 Or. at 348, 501 P.2d at 789. Accordingly,
Defendant is not entitled to impose a 12% interest rate on prevailing-party attorneys’ fees against
Chea.

13 – OPINION & ORDER

Furthermore, Defendant’s 12% interest rate is not authorized by statute. O.R.S.
§ 94.630(1)(n) only provides for the imposition of “charges for late payments of assessments and
attorney fees related to the collection of assessments.” That statute does not authorize Defendant
to pass a resolution setting a rate of interest on attorneys’ fees. The only interest rate that is
applicable here and authorized by statute is the standard 9% rate under O.R.S. § 82.010(2)(d).
Therefore, Plaintiffs’ motion for summary judgment that Defendant cannot charge an interest
rate on attorneys’ fees in excess of 9% with respect to Chea is granted. Defendant’s motion on
the issue is denied.
III.

Defendant’s Remaining Motions

As mentioned above, Defendant also moves for summary judgment regarding other
charges. Plaintiffs do not dispute that Defendant may collect unpaid assessments and late charges
at a rate of 30% per unpaid assessment. Defendant’s motion regarding those issues is granted.
Defendant also argues that Chea signed a Covenant and Release, releasing all of her
claims against Defendant.
[Chea] releases [WP HOA], its board of directors, employees,
agents, attorneys, and assigns from any and all claims [Chea] may
have, whether known or unknown , that have arisen or may arise
relating in any way to the disputes between [WP HOA] and [Chea]
involving (a) unpaid dues or assessments, including regular and
special assessments, financial penalties, late charges, and interest;
(b) the lawsuit and the judgment in the above captioned matter; or
(c) any matter arising from or related in any way to the
aforementioned matters or any claims which arose prior to the date
of execution of this Covenant and Release by Defendant.
Zimmerman Decl. Ex. 7, at 3–4. Other than providing the text of the Covenant and Release,
Defendant provides no other legal authority or independent analysis supporting this argument.
The text of the document alone is insufficient to show that Defendant is entitled to judgment as a
matter of law. Defendant has not demonstrated that the Covenant and Release requires that
14 – OPINION & ORDER

Chea’s FDCPA claims against it in this case be dismissed. Further, Defendant gives this
potentially dispositive issue short shrift and Plaintiffs ignores it entirely. The Court will not
attempt to flesh out legal arguments that Defendant failed to make. Defendant’s motion for
summary judgment on Chea’s claims based on the Covenant and Release is denied.
CONCLUSION
The Court grants summary judgment that Defendant lawfully charged Plaintiffs for presuit attorneys’ fees for collection work. The Court denies the parties’ motions regarding whether
Defendant lawfully charged Plaintiffs for other management fees. Regarding contractual interest
rates on attorneys’ fees, the Court grants summary judgment in Plaintiffs’ favor as to both Lott
and Chea. Defendant’s unopposed motion that it may lawfully collect unpaid assessments and
impose late charges at a rate of 30% per unpaid assessment against Plaintiffs is granted. Lastly,
the Court denies Defendant’s motion based on Chea’s Covenant and Release.
IT IS SO ORDERED.

Dated this

day of

, 2017.

MARCO A. HERNÁNDEZ
United States District Judge

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