Nicholas Malfitano Mar. 23, 2016, 8:36am


PHILADELPHIA – A federal judge has ruled a plaintiff missed the statute of limitations associated with the Fair Debt Collection Practices Act (FDCPA) in filing a lawsuit against Roseland, N.J., law firms and an attorney.

Judge Gene E.K. Pratter ruled March 14 that Kevin Rotkiske’s lawsuit against attorney Paul Klemm and his firms Nudelman Klemm & Golub; Nudelman Nudelman & Ziering; and Klemm & Associates was effectively time-barred by the FDCPA.

From 2003 to 2005, Rotkiske incurred credit card debt with Capital One Bank. Once the debt was turned over into collection status, Capital One Bank referred the debt to K&A – who then initiated a lawsuit against Rotkiske in March 2008, seeking payment on the debt in the amount of $1,500. K&A attempted to serve Rotkiske at a prior-known residence, where a man unassociated with Rotkiske accepted service of the complaint. However, K&A then allegedly withdrew the lawsuit because it “could not locate Mr. Rotkiske.”

In January 2009, the defendants refiled the collection suit and again attempted to serve Rotkiske at the same address – and again, another individual unknown to Rotkiske accepted service on his behalf. As a result, the defendants won a default judgment against Rotkiske in the second collection suit.

Rotkiske says he was unaware of either action against him and of the default judgment until September 2014, when he applied for a mortgage and was rejected due to the judgment’s appearance on his credit report.

Rotkiske accused the defendants of ensuring he wasn’t properly served with either suit and wrongfully obtaining the default judgment against him in violation of the FDCPA, while the defendants argued Rotkiske’s claims are time-barred and his lawsuit violates the Rooker-Feldman doctrine, which they say should result in it being dismissed for lack of subject matter jurisdiction.

“While the first and third Great W. Mining & Mineral Co. elements [for the Rooker-Feldman doctrine] are clearly met – the defendants obtained a default judgment against Rotkiske and that judgment was rendered before Rotkiske filed this lawsuit – Rotkiske’s amended complaint does not complain of injuries caused by the state court judgment,” Pratter said.

As to the statute of limitations, the defendants argued Rotkiske bringing forth claims six years after the alleged violation of the FDCPA is invalid, since the FDCPA has a statute of limitations of only one year attached to it.

In contrast, Rotkiske asserts the discovery rule, which delays the beginning of a limitations period until the plaintiff knew of or should have known of their injury, applies to his FDCPA claims. In such a circumstance, Rotkiske’s action would be timely, as he claims he only became aware of the violation in September 2014, 10 months before filing his suit. Alternatively, Rotkiske believes the Court should “apply the doctrine of equitable tolling to the same effect”, due to fraudulent concealment from the defendants.

“The Court is persuaded by the actual statutory language, buttressed by the defendants’ arguments that the discovery rule does not apply to a FDCPA claim,” Pratter said. “The language used in the statute by Congress is consistent with beginning the one-year limitations period on the date of the defendant’s last opportunity to comply with the statute, rather than the date on which the plaintiff discovers or should have discovered the violation.”

Pratter added case law from the U.S. Court of Appeals for the Third Circuit appears to decline the application of the discovery rule.

“Consequently, Mr. Rotkiske’s FDCPA claim is untimely,” Pratter said.

As to the concept of equitable tolling, Pratter said it also did not apply here.

According to Pratter, equitable tolling “requires a plaintiff to prove “(1) ‘active misleading’ by the defendant, (2) which prevents the plaintiff from recognizing the validity of their claim within the limitations period, (3) where the plaintiff’s ignorance is not attributable to their lack of ‘reasonable due diligence in attempting to uncover the relevant facts.”

Pratter believed Rotkiske was not able to meet this burden of proof.

“Rotkiske’s assertion that the doctrine of equitable tolling should save his time-barred claim is merely a reiteration of his discovery-rule argument, suggesting that he conflates the two,” Pratter said. “In this case, there are no allegations of active misleading on the part of the defendants regarding the facts supporting Mr. Rotkiske’s cause of action.”

Pratter concluded her opinion by dismissing Rotkiske’s complaint with prejudice.

“Having concluded that the discovery rule does not apply, and bearing in mind that the doctrine is to be used sparingly, the Court finds that the doctrine of equitable tolling by way of fraudulent concealment, even though technically available, cannot save Rotkiske’s time-barred FDCPA claim because he was not misled by any conduct committed by any defendant,” Pratter said.

The plaintiff is represented by Matthew B. Weisberg of Weisberg Law in Morton, and Robert P. Cocco in Philadelphia.

The defendants are represented by Carl E. Zapffe of Fenton McGarvey in Louisville, Ky. and Robert L. Baroska III of the Law Offices of Hayt, Hayt & Landau, in Eatontown, N.J.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-03638

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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