FKB’s Aaron M. Barham and Christopher D. Skoczen delivered a win for their clients, counsel for the board of managers of a condominium, in prevailing on a motion to dismiss in Westchester County Supreme Court.
Plaintiffs were condominium unit owners who refused to pay their common charges pending repairs to the condominium, despite the plaintiffs’ fiduciary duty to the condominium and other unit holders. FKB’s clients, counsel for the board of managers of the condominium, issued deficiency notices regarding the outstanding charges. Plaintiffs commenced suit, alleging that FKB’s clients violated the Fair Debt Collection Practices Act (FDCPA) in sending the deficiency notices, and that counsel was also liable for the disenfranchisement of plaintiffs based on the exclusion of plaintiffs from condominium affairs. The Court agreed with FKB that the payment of common charges is a fiduciary duty owed by the plaintiffs to the condominium and to plaintiffs’ fellow unit holders, and the FDCPA specifically excludes debt related to a fiduciary duty from its purview. As such, the Court held that FKB’s client was not a “debt collector” as defined by the FDCPA.
The Court further agreed with FKB that as counsel to the board of managers, FKB’s clients could not be held liable to individual unit holders, to whom they owed no legal or fiduciary duty.