Trivedi v. BD 112A LLC et al

Filing 83

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that Bruck's Motion for SummaryJudgment (Docket # 44 ) is GRANTED. Counts One, Two, and Three of Trivedi's Complaint are dismissed. Count Six (mislabeled Count Five ) against Bruck is dismissed without prejudice. IT IS FURTHER ORDERED that BD 112A LLC, BD112B LLC, Show4 LLC, and Northern Management, LLC's Motion for Summary Judgment (Docket # 47 ) is MOOT. Counts Four (mislabeled Three), Five (mislabeled Four), and Six (mislabeled Five) against these defendants are dismissed without prejudice for lack of subject-matter jurisdiction. IT IS FURTHER ORDERED that Bruck's Motion Requesting In Camera Review (Docket # 41 ) is DENIED AS MOOT. IT IS FURTHER ORDERED that Trivedi's Motions for Leave to File Sur-Reply Briefs (Docket # 72 and Docket # 77 ) are GRANTED. IT IS FURTHER ORDERED that Bruck's Motion for Sanctions (Docket # 46 ) is DENIED. (cc: all counsel) (asc) (Main Document 83 replaced on 2/13/2020) (asc).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SALINA TRIVEDI,
Plaintiff,
v.
Case No. 18-CV-313
BD 112A LLC, et al.,
Defendants.
DECISION AND ORDER ON DEFENDANTS’ MOTIONS
FOR SUMMARY JUDGMENT
Salina Trivedi sues her former landlord BD 112A LLC, BD112B LLC, and Show4
LLC (collectively her “landlord” or the “landlord defendants”) and its management
company, Northern Management, LLC (“Northern”) for violations of the Wisconsin
Consumer Act, Wis. Stat. § 100.20, and for breach of contract. (Docket # 1.) Trivedi also
sues Northern’s legal counsel, Bruck Law Offices, S.C. (“Bruck”), for violations of the Fair
Debt Collection Practices Act (“FDCPA”) and the Wisconsin Consumer Act. (Id.) The
landlord, Northern, and Bruck have all filed motions for summary judgment in their favor.
For the reasons further explained below, Bruck’s motion for summary judgment is granted
and the landlord defendants and Northern are dismissed for lack of subject-matter
jurisdiction.
UNDISPUTED FACTS
On August 16, 2017, Trivedi signed a lease to rent 114 South University, No. 11, at
an apartment complex called “The Preserves.” (Bruck’s Proposed Findings of Fact
(“PFOF”) ¶ 6, Docket # 43 and Trivedi’s Resp. to Bruck’s PFOF ¶ 6, Docket # 59.)

Northern is the landlord’s agent for collection of rent. (Id.) Upon signing the lease, Trivedi
agreed to pay to the landlord a security deposit of $1,635.00 plus $562.00 to cover the first
sixteen days of rent for August 2017. (Id. ¶ 8.) The checks Trivedi wrote to cover those
amounts were rejected by Trivedi’s bank for nonsufficient funds (“NSF”). (Id.) On
September 6, 2017, Northern’s Property Manager, Patricia Borchardt, advised Trivedi via
email as follows: “None of your checks have cleared and your September rent is due. Please
contact me ASAP regarding this. Full payment of $3,411.00 is due and must be paid with
either a cashier’s check or money order.” (Id. ¶ 10; Landlord and Northern’s PFOF ¶ 6,
Docket # 49 and Trivedi’s Resp. to Landlord and Northern’s PFOF ¶ 6, Docket # 57.) The
same day, Trivedi responded via email: “Sorry –it took a long time for them to go through
and in the chaos of moving and all the expenses of it, I thought they had already cleared
weeks prior–do you have a drop box? I can get the checks filled right away but I need till
[sic] Monday to get the rent caught up when I can get my next check.” (Bruck’s PFOF ¶ 10
and Trivedi’s Resp. to Bruck’s PFOF ¶10.) The same day, Borchardt responded via email:
“Thanks for getting back to me so quickly. Our drop box is the black box on the wall at the
back of the mail room. Please do what you can today and I’ll notify corporate that the rent
will be here Monday. Thank you!” (Id.)
On October 9, 2017, Borchardt advised Trivedi via email that her October rent had
not been paid, and that a five-day notice to quit or pay rent would be issued on October 10,
2017, if rent was not received by then. (Id. ¶ 12.) On October 10, 2017, Borchardt emailed
Trivedi to advise Trivedi that a five-day notice was being sent to Trivedi on that date. (Id. ¶
13.) On October 17, 2017, Trivedi emailed Borchardt that “I did drop the payment off, I
think I was off on the change though. I didn’t do it online this time because it’s really
2

expensive with the fees that are added for online payments.” (Id. ¶ 14.) The payment Trivedi
dropped off was a personal check for $1,218.00. (Id.) On October 27, 2017, the check was
rejected for NSF when Northern attempted to deposit it. Because the check did not clear the
bank, the bank did not pass the amount to the landlord. (Landlord and Northern’s PFOF ¶
13 and Trivedi’s Resp. to Landlord and Northern’s PFOF ¶ 13.)
Northern and Bruck entered into an agreement under which Bruck agreed to
represent the landlord and Northern’s interests in connection with eviction matters for
properties managed by Northern. (Id. ¶ 16.) On November 1, 2017, Bruck commenced an
eviction action entitled BD 112A LLC, BD 112B LLC & Show4 LLC v. Salina Trivedi, Dodge
County, Wisconsin, Case No. 17-SC-1682 (the “eviction”). (Id. ¶ 18.) Trivedi retained
Attorney Michael Lueder to represent her in the eviction action from November 2017 until
at least early January 2018. (Id. ¶ 19.) On November 28, 2017 an eviction hearing was held
in front of Judge Steven G. Bauer in Dodge County Circuit Court. (Id. ¶ 20.) At the hearing,
Attorney Lueder represented to the Court that Plaintiff could pay $3,089.32 to the landlord
and an agreement was reached whereby Trivedi was allowed to remain in her apartment
until December 18, 2017 on the condition that she pay $3,089.32 by November 29, 2017.
(Id.) Judge Bauer granted and entered a judgment of eviction but stayed any sort of writ of
assistance on the condition that Trivedi make payment in full of $3,089.32 by November 29,
2017. (Id. ¶ 21.) If payment was not made by that date, the landlord and Bruck could seek
the immediate issuance of a writ of restitution as of November 30, 2017. (Id.) Trivedi was
represented by counsel at this hearing and consented to the entry of the eviction judgment.
(Id. ¶ 22.)

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Trivedi did not make payment of $3,089.32 by November 29, 2017 as required by the
order entered by Judge Bauer on November 28, 2017. (Id.) On November 30, 2017, Trivedi
drove to Northern’s corporate office and made a partial payment of $1,985.00 in cash. (Id. ¶
25.) On December 1, 2017, Bruck executed an affidavit of non-compliance and a proposed
order to lift the stay of execution on the writ of restitution with the Wisconsin circuit court.
(Id. ¶ 29.) On December 5, 2017, Judge Bauer signed an order instituting an immediate writ
of restitution at Bruck’s request. (Id. ¶ 31.) On December 7, 2017, Trivedi filed a motion for
relief from judgment. (Id. ¶ 32.) A hearing was held on December 8, 2017. (Id. ¶ 34.) During
this hearing, Trivedi, through counsel, entered into a stipulation on the record in which
Trivedi was allowed to stay in the apartment through December 31, 2017. (Id.) The
landlord’s counsel noted at the hearing, however, that the original writ would expire prior to
December 31. (Affidavit of Duffy Dillon ¶ 2, Ex. 2, Docket # 38-2 at 5.) The court
responded:
Well, that should be vacated and you can send me another one and you want
me to sign it right away and it’s ready to go and the - - you’re better off to
vacate that one, send another one over right away. I can sign it, but you are
not going to have the Sheriff’s Department act on it until after 11 o'clock on
the 31st.
(Id. at 5–6.) A written order was entered memorializing the December 8 agreement on
January 25, 2018. (Burket Aff. ¶ 2, g., Ex. 7, Docket # 37-7.) The order states as follows:
“[Trivedi] will vacate the premises no later than December 31, 2017 at 11:00 a.m. . . . If
[Trivedi] fails to vacate the premises by December 31, 2017, the plaintiff may without notice
to [Trivedi] file a new writ of restitution for immediate possession of the unit.” (Id.)
However, despite the judge stating that Bruck could “send another [writ] over right away”
for him to sign, and despite Northern having a policy to always have a writ in place in case
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a tenant fails to comply with the extension terms, Bruck did not send a new writ for the
judge to sign. (Landlord and Northern’s PFOF ¶¶ 36, 38 and Trivedi’s Resp. to Landlord
and Northern’s PFOF ¶¶ 36, 38.)
On December 27, 2017, Trivedi asked Northern for another extension past
December 31, 2017. (Id. ¶ 39.) Bruck and Trivedi’s counsel agreed to an extension until
January 5, 2018 on the following terms: (1) that Trivedi vacate the apartment by 11:00 a.m.
on January 5 or else the sheriff would be on called to remove her, (2) that Bruck would
require that the court sign a writ but the landlord would hold execution until January 5, and
(3) that the landlord could inspect the apartment. (Id. ¶ 40.) On January 3, 2018, Trivedi
filed a pro se motion to reopen the eviction case, which was denied. (Id. ¶ 46.) That same
day, Bruck emailed Trivedi’s counsel, stating as follows: “I just asked my client if they have
received the payment. They inspected the unit and there is no indication that your client
intends to move as agreed. Further, she, on her own, filed a Motion to Reopen this case.
What exactly is happening with this case? My client’s intent is to move on the writ in the
next couple of days if she’s not out.” (Ex. 1 to Deposition of Salina Trivedi (“Trivedi
Dep.”), Docket # 33-1 at 106.)
On January 4, 2018 Borchardt sent Trivedi a twelve-hour notice that management
would be inspecting her apartment on January 5, 2018. (Landlord and Northern’s PFOF ¶
49 and Trivedi’s Resp. to Landlord and Northern’s PFOF ¶ 49.) Trivedi responded stating
that she had filed a motion to reopen the eviction and that she did not believe there was an
active writ in place. (Id. ¶ 50.) Borchardt responded on January 5, 2018 stating that there
was a writ of restitution in place and stating they would take legal action if she did not
cooperate. (Ex. 10 to Trivedi Dep., Docket # 33-11 at 3.) Trivedi responded that the writ
5

was vacated at the December 8 hearing and asked that the landlord not enter her apartment
again. (Id.) Borchardt responded as follows:
Unfortunately, our attorney indicates this is wrong information. We never
vacated the writ. My manager is contacting the authorities today. You may
want to have your attorney contact our attorney for clarification because
someone has wrong information.
(Id. at 1.) On January 24, 2018, Trivedi, through counsel, moved to reopen the eviction case
and allow counterclaims against the landlords. (Landlord and Northern’s PFOF ¶ 55 and
Trivedi’s Resp. to Landlord and Northern’s PFOF ¶ 55.) The motion was denied. (Id.) The
court signed an order of eviction and writ of assistance to be effective January 26, 2018. (Id.
¶ 57.) On or around January 29, 2018, Trivedi was served by the Sheriff’s office and advised
that she would be removed from the apartment if she did not vacate by February 5, 2018.
(Id. ¶ 58.) Trivedi vacated the apartment on February 4, 2018. (Id. ¶ 59.)
SUMMARY JUDGMENT STANDARD
The court shall grant summary judgment if the movant shows that 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Material facts” are those under the
applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477
U.S. at 248. The mere existence of some factual dispute does not defeat a summary
judgment motion. A dispute over a “material fact” is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the non-moving party.” Id.
In evaluating a motion for summary judgment, the court must draw all inferences in
a light most favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
6

Corp., 475 U.S. 574, 587 (1986). However, when the non-movant is the party with the
ultimate burden of proof at trial, that party retains its burden of producing evidence which
would support a reasonable jury verdict. Celotex, 477 U.S. at 324. Evidence relied upon must
be of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985 (7th
Cir. 2009). To survive summary judgment, a party cannot rely on his pleadings and “must
set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at
248. “In short, ‘summary judgment is appropriate if, on the record as a whole, a rational
trier of fact could not find for the non-moving party.’” Durkin v. Equifax Check Servs, Inc., 406
F.3d 410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. & Assoc., Inc., 330 F.3d 991, 994 (7th
Cir. 2003)).
ANALYSIS
1.

Rooker-Feldman Doctrine

Trivedi sues Bruck under the FDCPA and Wisconsin law. Bruck moves for summary
judgment on the ground that this court lacks jurisdiction to hear any of Trivedi’s claims
under the Rooker-Feldman doctrine.
Federal district courts do not have jurisdiction over cases brought by parties who lost
in state court and who seek relief from injuries caused by that prior state court judgment.
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283–84 (2005) (citing D.C. Court of
Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923)). As
such, under the Rooker-Feldman doctrine, a lower federal court cannot review, modify, or
reverse a judicial determination made by a state court, even if that determination is
challenged as erroneous or unconstitutional. See Swartz v. Heartland Equine Rescue, 940 F.3d
387, 390 (7th Cir. 2019). As explained by the Supreme Court, Rooker-Feldman is a narrow
7

doctrine, “confined to cases . . . brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments.” Exxon Mobil Corp., 544 U.S.
at 284. Under this doctrine, when determining if a federal plaintiff is seeking to review a
state court judgment, a court must determine whether the injury alleged in the federal
complaint resulted from the state court judgment. O’Malley v. Litscher, 465 F.3d 799, 802
(7th Cir. 2006). If so, Rooker-Feldman bars the claim.
Rooker-Feldman also prohibits indirect attempts to undermine state court decisions.
The Seventh Circuit has repeatedly held that even where a federal plaintiff’s claims “do not
on their face require review of a state court’s decision,” Rooker-Feldman still applies if those
claims are “‘inextricably intertwined’ with a state-court judgment, except where the plaintiff
lacked a reasonable opportunity to present those claims in state court. Beth-El All Nations
Church v. City of Chicago, 486 F.3d 286, 292 (7th Cir. 2007). In Rizzo v. Sheehan, the Seventh
Circuit outlined the appropriate inquiry under the doctrine:
In order to determine the applicability of the Rooker–Feldman doctrine, the
fundamental and appropriate question to ask is whether the injury alleged by
the federal plaintiff resulted from the state court judgment itself or is distinct
from that judgment. If the injury alleged resulted from the state court
judgment itself, the Rooker–Feldman doctrine dictates that the federal courts
lack subject matter jurisdiction, even if the state court judgment was
erroneous or unconstitutional. If, however, the injury alleged is distinct from
that judgment, i.e., the party maintains an injury apart from the loss in state
court and not ‘inextricably intertwined’ with the state judgment . . . Rooker–
Feldman does not [apply]. Thus, the pivotal inquiry is whether the federal
plaintiff seeks to set aside a state court judgment or whether [she] is, in fact,
presenting an independent claim.
266 F.3d 705, 713 (7th Cir. 2001) (internal quotations and citations omitted).

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At its heart, the Rooker-Feldman doctrine is grounded in the principles of comity,
federalism, and finality. It is intended to safeguard state court decisions from review by
lower federal courts. Stated differently, lower federal courts are precluded from acting as
courts of appeals for state court judgments. The Supreme Court of the United States is the
only federal court that has jurisdiction to review a state court judgment. Brown v. Bowman,
668 F.3d 437, 442 (7th Cir. 2012).
As an initial matter, Trivedi argues that the Seventh Circuit has abrogated the
“inextricably intertwined” standard. (Docket # 58 at 2–3.) That is not exactly correct. The
Seventh Circuit has indeed expressed skepticism about the language “inextricably
intertwined,” see Richardson v. Koch Law Firm, P.C., 768 F.3d 732, 734 (7th Cir. 2014) (“We
are skeptical about the wisdom of asking whether something is ‘intertwined’ (‘inextricably’
or extricably) with a state court’s judgment”), noting its potential to blur the bounds
between Rooker-Feldman and the rules of preclusion, see Milchtein v. Chisholm, 880 F.3d 895,
898 (7th Cir. 2018). However, the Rooker-Feldman analysis has not changed. The bottom-line
inquiry is whether the plaintiff’s alleged injury is independent of the state court judgment.
See Mains v. Citibank, N.A., 852 F.3d 669, 675 (7th Cir. 2017), cert. denied, 138 S. Ct. 227, 199
L. Ed. 2d 121 (2017) (“If the claim alleges an injury independent of the state-court judgment
that the state court failed to remedy, Rooker-Feldman does not apply.”); Sykes v. Cook Cty.
Circuit Court Prob. Div., 837 F.3d 736, 742 (7th Cir. 2016) (“In order for the doctrine to
apply, the state court judgment must be ‘inextricably intertwined’ with the federal court
lawsuit. In other words, there must be no way for the injury complained of by a plaintiff to
be separated from a state court judgment.”).

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Regarding Trivedi’s three FDCPA claims against Bruck, her principal alleged injury
for all of them is emotional distress. (See Compl. ¶¶ 62, 68, 72.) Trivedi alleges emotional
distress stemming from Borchardt’s January 5, 2018 email in which she told Trivedi that a
writ was in place and that they would be contacting the authorities if Trivedi did not
cooperate. She further alleges emotional distress from receiving the eviction complaint from
an attorney that she believed wrongly made a judgment about the likelihood of success on
the claims without meaningfully reviewing the case. Finally, she alleges emotional distress
from Bruck’s conduct that allegedly coerced her into entering the December 8, 2017
stipulation.
Trivedi clearly does not ask for outright overturning of the state court judgment of
eviction. Thus, the question is whether Trivedi seeks to indirectly review the state court
judgment. To the extent Trivedi alleges emotional distress damages stemming from the
December 8, 2017 stipulation on the grounds that Bruck had no right to request a writ at
that time and she was coerced into entering the agreement (Compl. ¶¶ 68, 73), this would
require a determination that the state court erred in lifting the stay on the writ on December
5, 2017 and in finding that the December 8 agreement was a negotiated settlement in which
Trivedi waived any possible defense to the eviction (Docket # 37-15 at 3), thereby indirectly
reviewing the state court judgment. Thus, these claims are barred by the Rooker-Feldman
doctrine. However, to the extent Trivedi alleges damages from Borchardt’s January 5, 2018
email in which she conveyed to Trivedi the erroneous information that a writ was in place
or from Bruck’s alleged misrepresentation regarding counsel’s involvement in the debt
collection process, this does not require me to indirectly review the state court judgment.
Thus, these claims are not barred by Rooker-Feldman. In sum, each of Trivedi’s three
10

FDCPA claims against Bruck allege damages, at least in part, stemming from injuries not
barred by Rooker-Feldman. Therefore, I will not dismiss Trivedi’s claims against Bruck on
Rooker-Feldman grounds.
2.

Claim and Issue Preclusion

Bruck argues alternatively that Trivedi’s claims are barred by either claim or issue
preclusion. Because I am assessing the preclusive effect of a ruling of a Wisconsin state
court, I look to Wisconsin law to determine the nature and scope of preclusion. 28 U.S.C. §
1738; Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). Claim
preclusion arises when the earlier case involved the same parties or their privies and the
same causes of action, and the case was resolved by a final judgment on the merits. Jensen v.
Milwaukee Mut. Ins. Co., 204 Wis. 2d 231, 235, 554 N.W.2d 232, 234 (Wis. Ct. App. 1996).
When these elements are satisfied, claim preclusion operates to bar not only the claims
actually decided in the earlier case but also any other claim which could have been brought
therein. Id. Issue preclusion arises when an issue was actually litigated and finally
determined in the earlier case, and the interests of the party against whom preclusion is
sought were sufficiently represented in that prior case. Paige K.B. ex rel. Peterson v. Steven
G.B., 226 Wis. 2d 210, 219, 594 N.W.2d 370, 374 (1999). Thus, issue preclusion does not
bar other claims that might have been brought in the prior proceeding, but in some instances
it can apply even when the parties in the prior suit are not identical to those in the instant
suit. Montana v. United States, 440 U.S. 147, 153 (1979). To determine whether issue
preclusion bars a litigant’s claim, Wisconsin courts apply a two-step analysis: they ask (1)
whether issue preclusion can, as a matter of law, be applied and, if so, (2) whether the

11

application of issue preclusion would be fundamentally fair. Rille v. Physicians Ins. Co., 2007
WI 36, ¶ 36, 300 Wis. 2d 1, 19, 728 N.W.2d 693, 702 (2007).
As to claim preclusion, Bruck was clearly not a party to the underlying eviction
action. Bruck argues, however, that it was a privy to the defendants (the landlords) by virtue
of being its legal counsel. (Docket # 51-1 at 22.) In order to be in privity with a party to a
judgment, “one must have such absolute identity of interests that the party to the earlier
action represented the same legal interest as the non-party to that first action.” In re Paternity
of Amber J.F., 205 Wis. 2d 510, 516, 557 N.W.2d 84, 86–87 (Wis. Ct. App. 1996). In this
case, as counsel for its client, Bruck has a separate legal interest from Northern. Bruck has
no personal stake in evicting Trivedi, its interest during the eviction was to effectively
represent its client. Thus, claim preclusion does not bar Trivedi’s claims against Bruck.
Nor does issue preclusion bar Trivedi’s claims. Bruck argues that the state court
already determined that the eviction action resulted in a “negotiated settlement” and
Trivedi’s claims are based upon actions that were expressly contemplated by the settlement
agreement. (Docket # 51-1 at 23–24.) But Bruck was not a party to the negotiated settlement
and none of the FDCPA claims Trivedi raises against Bruck were “actually litigated” in the
eviction proceeding. See Cirilli v. Country Ins. & Fin. Servs., 2013 WI App 44, ¶ 8, 347 Wis. 2d
481, 490, 830 N.W.2d 234, 239. These are distinct claims. Thus, Trivedi’s claims against
Bruck are not barred by issue preclusion.

12

3.

The Merits of Trivedi’s FDCPA Claims1

Bruck alternatively argues that Trivedi’s FDCPA claims against it fail as a matter of
law. Again, Trivedi brings three FDCPA claims against Bruck. In Count One, Trivedi
alleges that Bruck violated 15 U.S.C. § 1692e(5) by threatening to take legal action it could
not legally take. Specifically, that Bruck, through Northern, threatened to execute a nonexistent writ. In Count Two, Trivedi alleges that Bruck violated 15 U.S.C. § 1692e(3) by
falsely representing that an attorney was meaningfully involved in the debt collection
process. And finally, in Count Three, Trivedi alleges that Bruck violated 15 U.S.C. § 1692d
by harassing Trivedi. I will address each claim in turn.
3.1

15 U.S.C. § 1692e(5)

Trivedi alleges that Bruck violated § 1692e(5) by threatening to execute a nonexistent writ. Section 1692e provides that “[a] debt collector may not use any false,
deceptive, or misleading representation or means in connection with the collection of any
debt.” The statute specifies sixteen types of conduct that run afoul of this prohibition and
Trivedi relies on § 1692e(5), which proscribes “[t]he threat to take any action that cannot
legally be taken or that is not intended to be taken.”
In general, the protections of the FDCPA are subject to two limitations. Schlaf v.
Safeguard Prop., LLC, 899 F.3d 459, 466 (7th Cir. 2018). First, the statute’s substantive
provisions apply only to “debt collectors.” Id. Second, the statute applies only to
communications made in connection with the collection of any debt. Id. The evidence
shows that the email Trivedi alleges violates § 1692e(5) was sent by Borchardt, who is
Bruck has also filed a motion for in camera review of certain communications between Bruck and Northern to
determine whether Northern has waived its attorney-client privilege, therefore allowing Bruck to produce and
reference the materials in this case. (Docket # 41.) Because these documents are unnecessary to resolve
Bruck’s motion, I will deny the request as moot.
1

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Northern’s property manager. Trivedi does not allege that Borchardt was an agent of Bruck,
nor does she allege that Northern is a debt collector under the FDCPA. Trivedi alleges,
however, that Bruck made a false statement to Northern (i.e., that the writ was still active),
knowing that Northern would then communicate the statement to Trivedi. (Compl. ¶ 61.) In
other words, Northern merely puppeted Bruck’s false statement. Trivedi attempts to
shoehorn Northern’s (the creditor’s) communication into the FDCPA by arguing that it was
really Bruck (the debt collector) making the offending communication. While a creditor
may, in some circumstances, be held liable under fair debt collection statutes for the acts of
its collection agent, see Patzka v. Viterbo Coll., 917 F. Supp. 654, 661 (W.D. Wis. 1996),
Trivedi seeks to hold the collection agent liable for the acts of the creditor. It is difficult to
see how Northern could possibly be Bruck’s agent when Bruck was Northern’s counsel.
Trivedi provides no legal support for the proposition that a debt collector can violate the
FDCPA through a third-party who is not the debt collector’s agent.
Furthermore, a statement does not automatically violate the FDCPA simply because
it is false. Ruth v. Triumph P’ships, 577 F.3d 790, 799 (7th Cir. 2009). Trivedi bears the
burden of proving that the false statement would mislead or deceive the unsophisticated
consumer, id. at 800, and that the false statement was material, Lox v. CDA, Ltd., 689 F.3d
818, 822 (7th Cir. 2012). “If a statement would not mislead the unsophisticated consumer, it
does not violate the FDCPA—even if it is false in some technical sense. For purposes of §
1692e, then, a statement isn’t ‘false’ unless it would confuse the unsophisticated consumer.”
Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643, 645–46 (7th Cir. 2009). Lawsuits alleging
deceptive or misleading statements fall into three distinct categories: (1) cases involving
statements that plainly, on their face, are not misleading or deceptive; (2) cases involving
14

statements that are not plainly misleading or deceptive but might possibly mislead or
deceive the unsophisticated consumer; and (3) cases involving statements that are plainly
misleading on their face. Ruth, 577 F.3d at 800–01. If a statement falls into category one,
summary judgment must be granted for the defendant. If a statement falls into category
three, summary judgment must be granted for the plaintiff. If a statement falls into category
two and the plaintiff fails to produce extrinsic evidence to prove that unsophisticated
consumers do in fact find the challenged statements misleading or deceptive, summary
judgment must be granted for the defendant. See id.
Because Trivedi does not present any extrinsic evidence at the summary judgment
stage, she must show that the statement is plainly and clearly misleading on its face, thus
eliminating any need for evidence of its deceptive nature. Lox, 689 F.3d at 822. Trivedi must
also demonstrate that Borchardt’s email contained a materially false statement. See id.
However, Trivedi simply alleges that Bruck made a false statement, i.e., that there was an
active writ when there was not. (Compl. ¶ 61.) Trivedi makes no attempt whatsoever to
argue that the email was plainly and clearly misleading on its face. Only in her proposed
sur-reply does Trivedi even attempt to show that the allegedly false statement was material,
but still fails to address whether the statement was misleading as well as false. (Docket # 74
at 9.) I need not consider these undeveloped arguments. See United States v. Olmeda-Garcia,
613 F.3d 721, 723–24 (7th Cir. 2010).
Although Trivedi is the non-moving party, she bears the ultimate burden at trial of
proving her FDCPA case. Thus, she retains the burden of producing evidence which would
support a reasonable jury verdict. Celotex Corp., 477 U.S. at 324. Trivedi has failed to do so.

15

Thus, summary judgment will be granted in favor of Bruck on Count One of Trivedi’s
complaint.
3.2

15 U.S.C. § 1692e(3)

Trivedi alleges that Bruck violated § 1692e(3) by misrepresenting that an attorney
was meaningfully involved in the debt collection process when it filed the eviction
complaint against her. Specifically, Trivedi argues that Attorney Deborah Bruck, who
signed the eviction complaint but failed to review the complaint, falsely represented her
level of involvement in the case. (Docket # 58 at 16.)
The FDCPA prohibits “[t]he false representation or implication that any individual
is an attorney or that any communication is from an attorney.” 15 U.S.C. § 1692e(3). A
communication purporting to be from an attorney “implies that the attorney has reached a
considered, professional judgment that the debtor is delinquent and is a candidate for legal
action.” Avila v. Rubin, 84 F.3d 222, 229 (7th Cir. 1996). If, however, the communication “is
not the product of the attorney’s professional judgment—if [s]he has not independently
determined that the debt is ripe for legal action by reviewing the debtor’s file, for example . .
. then the [communication] is misleading” and violates § 1692e. Nielsen v. Dickerson, 307
F.3d 623, 635 (7th Cir. 2002).
Attorney Bruck testified to the following practice regarding how her firm processes
evictions. First, the client determines an eviction is warranted and sends relevant documents
to Bruck via email. (Bruck PFOF ¶ 19, a. and Trivedi’s Resp. to Bruck PFOF ¶ 19, a.) Next,
a Bruck clerical employee opens a file and scans the client documents into the file. (Id. ¶ 19,
b.) Then, the client materials are reviewed by Attorney Bruck and Attorney Burket to
determine whether eviction is warranted. This includes: (1) cross-reference the client
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documents with the file opened by the clerical employee to make sure no human error
occurred in opening the file; (2) verify all the client documents show the same demographic
information for the tenant; (3) cross-check the demographic information with Bruck’s
system to make sure the tenant’s contact information is correct; (4) verify Bruck had
received a copy of the existing lease; (5) verify Bruck had received a current tenant ledger
from zero balance to show the claimed balance correctly matched the balance entered by
Bruck’s clerical employee on the file; (6) verify the math on the tenant ledger balance; (7)
verify Bruck received a copy of a client-prepared affidavit of service to confirm a notice
terminating tenancy had been properly served on the tenant with the proper notice; (8)
review the actual five-day notice itself; (9) review the tax assessor’s information to verify the
current owners of the property; (10) review any other client-provided documentation, which
might include non-standard rental provisions, PACER searches for bankruptcies, and/or
military searches; and (11) verify the eviction would only be served on the proper parties.
(Id. ¶ 19, c.) If either Attorney Bruck or Attorney Burket identified any concerns during this
process, Bruck would hold off on filing an eviction until the concerns were addressed. (Id. ¶
19, d.) During the relevant time period, Attorney Jonathan Burket drafted all of the eviction
summons and complaints filed by Bruck and Attorney Burket was authorized by Attorney
Bruck to sign her name to all eviction pleadings filed by Bruck. (Id. ¶ 19, e.) While Attorney
Bruck testified that she and Attorney Burket review the file sent from the client to determine
whether suit should be filed, she does not review the summons and complaint after Attorney
Burket drafts them. (Bruck Dep. at 28–35.)
Trivedi argues Bruck’s routine practices do not amount to meaningful review for
several reasons. First, Trivedi argues that it is a per se violation of § 1692e(3) for Attorney
17

Bruck to allow Attorney Burket to sign and file the eviction complaint under her name.
(Docket # 58 at 16.) Trivedi cites to no case law supporting this contention. Rather, the
principal cases on violations of § 1692e(3) involve mass-produced dunning letters
mechanically signed by an attorney where the attorney had little to no involvement in the
mailing of the letters. See Avila, 84 F.3d 222. This practice violates the FDCPA because it
creates the false and misleading impression that the communications were from an attorney,
when, in fact, they were not really “from” an attorney in any meaningful way. Id. at 229. As
the Seventh Circuit noted, “An unsophisticated consumer, getting a letter from an
‘attorney,’ knows the price of poker has just gone up. And that clearly is the reason why the
dunning campaign escalates from the collection agency, which might not strike fear in the
heart of the consumer, to the attorney, who is better positioned to get the debtor’s knees
knocking.” Id. Therefore, an unsophisticated consumer will construe a letter with an
attorney’s name on it to reflect an attorney’s professional judgment that a debt is delinquent
and ripe for legal action. Nielsen, 307 F.3d at 635, 638. “[A] debt collection letter that is
issued on an attorney’s letterhead and over his signature conveys the notion that the
attorney has ‘directly controlled or supervised the process through which the letter was
sent’—i.e., that he has assessed the validity of the debt, is prepared to take legal action to
collect on that debt, and has, accordingly, decided that a letter should be sent to the debtor
conveying that message.” Id. at 635 (quoting Avila, 84 F.3d at 229).
Bruck’s situation is different. Bruck has a junior attorney draft and file a summons
and complaint (with the senior attorney’s signature on it), after both the junior attorney
(Attorney Burket) and the senior attorney (Attorney Bruck) review the materials from the
client to determine whether eviction is warranted. (Bruck PFOF ¶ 19, c. and Trivedi’s Resp.
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to Bruck PFOF ¶ 19, c.) The concern of the FDCPA is that creditors not use an attorney’s
perceived authority to “up the ante” on a debtor when in reality the attorney had no
independent involvement in sending the letter, filing the lawsuit, etc. Bruck’s undisputed
process is a far cry from using an attorney’s name to “get the debtor’s knees knocking,” see
Avila, 84 F.3d 229, when the attorney had only cursory involvement in the debt collection
process.
Next, Trivedi argues that a reasonable factfinder could conclude that Bruck does not
meaningfully review its files before commencing suit. (Docket # 58 at 17–25.) Trivedi
argues that Bruck has a very heavy caseload, Bruck does not receive sufficient information
from its clients and fails to sufficiently investigate its cases before filing suit, and Bruck’s fee
agreement incentivizes counsel to spend minimal time on files. (Id.)
Trivedi cites to Bruck’s recent case load. (Trivedi’s Proposed Findings of Fact ¶¶ 13–
20, Docket # 60.) For example, Trivedi asserts that Attorney Bruck’s calendar shows a total
of 384 hearings in four weeks in October 2019 (id. ¶ 15) and Bruck filed 163 new cases
between August 29 and September 27, 2017 (id. ¶ 13). She also asserts that Bruck did not
supply a list of hearings Attorney Burket may have covered for her during the fall of 2017.
(Id. ¶ 16.) Although Trivedi cites several out-of-district cases in support of her position that
evidence of an attorney’s heavy case load defeats summary judgment on a § 1692e(3) claim,
she relies principally on two district court cases from this circuit—Boerner v. LVNV Funding,
LLC, 326 F. Supp. 3d 665 (E.D. Wis. 2018) and Bahena v. Jefferson Capital Sys., 363 F. Supp.
3d 914 (W.D. Wis. 2019).
In Boerner, the court considered not only evidence of the attorney’s schedule, but the
fact that the collection law firm used a legal assistant to review files for suit and utilized pre19

made, assembly-line fashion complaints to find that a reasonable jury could conclude there
was no professional judgment exercised regarding whether and how to pursue the claims.
326 F. Supp. 3d at 779–80. In that case, although the firm received the entire debtor file
from the creditor, the facts were unclear regarding who determined which claims to pursue
and whether the attorneys actually reviewed the file before drafting the complaint. Id. In
Bahena, the court denied the defendant’s summary judgment motion based on evidence of
the law firm’s heavy caseload, the fact the attorney had limited access to the debtor’s
account information, and the fact that the process by which counsel prepared and reviewed
the cases was formulaic. 363 F. Supp. at 928–29. Billing records indicated that counsel spent
only one minute reviewing and preparing the plaintiff’s case before signing the complaint.
Id. at 928.
Trivedi does not argue that Bruck’s stated procedure for reviewing and filing eviction
actions is insufficient; rather, she asserts that it is impossible for Bruck to actually perform
this procedure because of the volume of cases the firm handles. (Trivedi’s Resp. to Bruck’s
PFOF ¶ 19, c.–d.) I disagree, however, that the number of filings, in and of itself, makes
Attorney Bruck’s testimony incredible. First of all, the number of filings or the number of
hearings on the calendar are not necessarily indicative of the number of hearings attended.
Perhaps some cases resolved prior to the hearing date or, as Trivedi acknowledges, some
counties do not require a personal appearance on the small claims return date. (Trivedi’s
Resp. to Bruck’s PFOF ¶ 25.) Further, Attorney Bruck testified that she only personally
appeared in court twelve times between October 1, 2017 and January 15, 2018. (Bruck’s
PFOF ¶ 25.) Trivedi contests this testimony by stating that perhaps Attorney Bruck’s
hearings were deleted from her calendar. (Trivedi’s Resp. to Bruck’s PFOF ¶ 25.) Trivedi
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cites in support of this theory, however, a portion of Attorney Bruck’s deposition in which
she specifically stated that every court appearance, even ones taken off the court’s calendar,
remain on her calendar, but with a different color coding. (Bruck Dep. at 71–72.) She
testified that “nothing gets deleted.” (Bruck Dep. at 72.) Thus, Trivedi merely speculates
that counsel did not have enough time to conduct Bruck’s stated eviction review process.
Trivedi also argues that Bruck had minimal documentation from its clients prior to
filing its eviction actions. (Docket # 58 at 21.) But Trivedi concedes that Bruck has the
lease, the five-day notice and proof of service, and a ledger created by the client. (Id.) Bruck
has an internal process to double-check for the current owners of the property, review any
non-standard rental provisions, and search for bankruptcies or military service. (Bruck
PFOF ¶ 19, c. and Trivedi’s Resp. to Bruck PFOF ¶ 19, c.) It is unclear why Bruck would
also need, for example, copies of correspondence between the landlord and client or
telephone records prior to filing suit, as Trivedi argues. (Docket # 58 at 21.) Further, Trivedi
argues that “meaningful review” would have uncovered that Trivedi’s payment under the
five-day notice was dishonored due to insufficient funds. (Id.) But Trivedi does not assert
that Northern had a duty to alert Trivedi to this fact. And while Trivedi argues that a
“tenant who submitted payment but who had the payment dishonored might have been
given an extension to resubmit the payment, or worked out a new payment plan . . . .,” (id.
at 21–22), Northern was not required to do so. It is unclear how any of these facts indicates
a violation of § 1692e(3).
Finally, Trivedi again speculates as to Bruck’s collection practices—this time
asserting that Bruck’s fee agreement incentivizes counsel to minimize attorney time spent on
files. But speculation is insufficient to defeat summary judgment. Austin v. Walgreen Co., 885
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F.3d 1085, 1089 (7th Cir. 2018). This is not a situation, as Avila and Nielsen warn, of an
attorney failing to reach a considered, professional judgment before filing an eviction action.
Counsel are not being used as mere figureheads for Northern but are independently
determining that legal action is proper after receiving Northern’s file.
For these reasons, summary judgment will be granted in favor of Bruck on Count
Two of Trivedi’s complaint.
3.3

15 U.S.C. § 1692d

Trivedi argues Bruck violated § 1692d by harassing Trivedi when Bruck signed the
December 1, 2017 affidavit of non-compliance and asked the court on December 5, 2017 to
lift the stay on the writ. (Docket # 58 at 25–27.) Trivedi argues that she went to Northern’s
corporate office on November 30, 2017 and paid $1,985.00 in cash. (Id. at 25.) She argues
that “it can be inferred” that no later than December 4, 2017, Bruck was aware of the
$1,985.00 cash payment and by December 6, 2017, was aware that she paid the remainder
online. (Id. at 26.)
Section 1692d prohibits a debt collector from engaging in conduct “the natural
consequence of which is to harass, oppress, or abuse any person in connection with the
collection of a debt.” Trivedi argues that misrepresenting a key fact in litigation may violate
§ 1692d, citing Eichman v. Mann Bracken, LLC, 689 F. Supp. 2d 1094, 1100–01 (W.D. Wis.
2010) in support. (Docket # 58 at 25.) But it is unclear what “key fact” Trivedi alleges that
Bruck misrepresented to the court. At the November 28, 2017 eviction hearing, Trivedi,
represented by counsel, reached an agreement whereby Trivedi was allowed to remain in
her apartment until December 18, 2017 on the condition that she pay $3,089.32 by
November 29, 2017. (Landlord and Northern’s PFOF ¶ 20 and Trivedi’s Resp. to Landlord
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and Northern’s PFOF ¶ 20.) The judge granted and entered a judgment of eviction but
stayed any sort of writ of assistance on the condition that Trivedi make payment in full of
$3,089.32 by November 29, 2017. (Id. ¶ 21.) If payment was not made by that date, the
landlord and Bruck could seek the immediate issuance of a writ of restitution as of
November 30, 2017. (Id.) But Trivedi did not make the full payment of $3,089.32 by
November 29, 2017. She acknowledges that she paid $1,985.00 on November 30, 2017.
(Docket # 58 at 25–26.) So, Trivedi neither paid the full amount due, nor did so on time.
Thus, even assuming Trivedi paid in full by December 6, 2017, she violated the terms of the
order and Bruck was legally allowed to seek a writ of restitution. Doing so did not
misrepresent any fact. Trivedi filed a motion for relief from judgment on December 7, 2017
based on her late payment, and the writ was vacated at the December 8, 2017 hearing. (Id.
at ¶¶ 32, 34.) It does not follow, however, that Bruck engaged in any harassing behavior
between December 1 and December 8, 2017, as the court’s order allowed Bruck to request a
writ of restitution if Trivedi failed to comply with the terms. For these reasons, summary
judgment will be granted in favor of Bruck on Count Three of Trivedi’s complaint.
4.

Bruck’s Motion for Sanctions

Bruck moves for sanctions against Trivedi under Fed. R. Civ. P. 11, arguing that
Trivedi’s claims against Bruck are without any factual basis and are frivolous. (Docket # 461.) Although I grant summary judgment in favor of Bruck, I do not find Trivedi’s lawsuit to
be frivolous or without any basis in fact. For these reasons, Bruck’s motion for sanctions
will be denied.

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5.

Remaining State Law Claims

Trivedi’s Fourth (mislabeled Third), Fifth (mislabeled Fourth), and Sixth (mislabeled
Fifth) Causes of Action allege state law claims against the landlord defendants, Northern,
and Bruck. As to Bruck, without the FDCPA claims, all that remains is Trivedi’s WCA
claim. I will follow the general rule by relinquishing jurisdiction over the supplemental state
law claim. See Redwood v. Dobson, 476 F.3d 462, 467 (7th Cir. 2007) (“A court that resolves
all federal claims before trial normally should dismiss supplemental claims without
prejudice.”). Thus, Trivedi’s WCA claim against Bruck will be dismissed without prejudice.
As to the landlord defendants and Northern, Trivedi brings no federal claims against
them. Because Trivedi, the landlord defendants, and Northern are all Wisconsin citizens,
diversity jurisdiction does not exist. See 28 U.S.C. § 1332(a). Rather, Trivedi relied on
pendent party jurisdiction to include these defendants in her lawsuit. See 28 U.S.C. §
1367(a); Hammond v. Clayton, 83 F.3d 191, 194 (7th Cir. 1996) (“Pendent party jurisdiction
referred to the situation where a federal court exercised jurisdiction over claims involving
parties not named in any independently cognizable federal claim . . . . This caselaw clearly
presupposes the existence of a claim by a pendent party plaintiff or against a pendent party
defendant.”). However, given the claims against the pendent party defendant (Bruck) have
been dismissed, this Court no longer has subject-matter jurisdiction over the landlord
defendants and Northern. For these reasons, Trivedi’s remaining causes of action against
the landlord defendant and Northern are dismissed for lack of subject-matter jurisdiction. I
make no ruling, however, as to the merits of Trivedi’s state law claims against the landlord
defendants and Northern.

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CONCLUSION
Trivedi alleges that the law firm of her former landlord’s management company
violated the FDCPA in the course of her state court eviction proceedings. She further alleges
that all defendants violated Wisconsin law. Because a rational trier of fact could not find for
Trivedi, summary judgment in favor of Bruck as to Counts One, Two, and Three of
Trivedi’s complaint will be granted. Without the federal claims, I decline to exercise
supplemental jurisdiction over the remaining Wisconsin law claim against Bruck. Without
Bruck in this lawsuit, this Court lacks subject-matter jurisdiction over the landlord
defendants and Northern. Thus, Counts Four, Five, and Six against these defendants are
also dismissed for lack of subject-matter jurisdiction. However, I do not address the merits
of these defendants’ summary judgment motion.
ORDER
NOW, THEREFORE, IT IS ORDERED that Bruck’s Motion for Summary
Judgment (Docket # 44) is GRANTED. Counts One, Two, and Three of Trivedi’s
Complaint are dismissed. Count Six (mislabeled Count Five) against Bruck is dismissed
without prejudice.
IT IS FURTHER ORDERED that BD 112A LLC, BD112B LLC, Show4 LLC, and
Northern Management, LLC’s Motion for Summary Judgment (Docket # 47) is MOOT.
Counts Four (mislabeled Three), Five (mislabeled Four), and Six (mislabeled Five) against
these defendants are dismissed without prejudice for lack of subject-matter jurisdiction.
IT IS FURTHER ORDERED that Bruck’s Motion Requesting In Camera Review
(Docket # 41) is DENIED AS MOOT.

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IT IS FURTHER ORDERED that Trivedi’s Motions for Leave to File Sur-Reply
Briefs (Docket # 72 and Docket # 77) are GRANTED.
IT IS FURTHER ORDERED that Bruck’s Motion for Sanctions (Docket # 46) is
DENIED.
IT IS FURTHER ORDERED that the clerk of court will enter judgment
accordingly.

Dated at Milwaukee, Wisconsin this 13th day of February, 2020.
BY THE COURT:
s/Nancy Joseph____________
NANCY JOSEPH
United States Magistrate Judge

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