This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-01-1674

 

Azam Ansari,

Appellant,

 

vs.

 

Diamond Path

Homeowners’ Association, et al.,

Respondents.

 

Filed February 12, 2002

Affirmed
Foley, Judge
*

 

Dakota County District Court

File No. C2018186

 

Azam Ansari, 12954 Echo Lane, Apple Valley, MN 55124 (pro se appellant)

 

Robert B. Fine, P.O. Box 24192, Edina, MN 55424-0192 (for respondents)

 

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant pro se Azam Ansari challenges the district court’s judgment dismissing his suit on the pleadings.  Appellant’s complaint (1) sought a declaratory judgment stating he reasonably withheld association dues because of the inadequate maintenance of his common area lawn; and (2) sought compensation for an FDCPA claim.  We affirm.

D E C I S I O N

            The only question on review from a judgment on the pleadings is whether the complaint set forth a legally sufficient claim for relief.  Elzie v. Comm’r of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980).  The court should not order judgment on the pleadings if there are any questions of fact.  In re Trusts by Hormel, 543 N.W.2d 668, 671 (Minn. App. 1996).  A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue.  Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

I.

            In his complaint, appellant seeks a declaratory judgment that respondent Diamond Path Homeowners’ Association (DP) failed to maintain appellant’s lawn pursuant to Minn. Stat. § 515B.3-107 and that he was justified in withholding association dues because of this failure.  While section 515B.3-107 does state that an association is responsible for the maintenance, repair, and replacement of common elements, it does not authorize withholding association dues for a failure in such regard.  Minn. Stat. § 515B.3-107 (2000).  Since appellant cites no authority justifying withholding his association dues and no justification is apparent, appellant’s complaint fails to state a valid cause of action on this issue. 

II.

            Appellant’s complaint also involves a claimed violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 (1994), where appellant sought review of a previous case he was involved in, emotional distress damages, and a civil award.  Appellant’s efforts to reopen a previous case are irrelevant to this matter and do not assert a valid cause of action.  Appellant’s FDCPA claim against DP lacks merit because DP is a creditor, not a debt collector, and, thus, not subject to the FDCPA.  Newman v. Boehm, Pearlstein  & Bright, Ltd., 119 F.3d 477, 483 n.3 (7th Cir. 1997)

            Appellant’s complaint also contains a FDCPA claim against respondent Robert Fine.  But the complaint does not allege that Fine is a debt collector for purposes of the FDCPA.  The FDCPA defines a debt collector as one whose principal business is the collection of debts.  15 U.S.C. § 1692a (6).  Some courts have interpreted this to mean that a law firm is not a debt collector when it’s debt collection practice consists of only a small percentage of its overall practice or a small number of cases.  See Nance v. Petty, Livingston, Dawson & Devening, 881 F. Supp. 223, 224 (W.D. Va. 1994); Mertes v. Devitt, 734 F. Supp. 872, 874 (W.D. Wis. 1990).  Appellant had the burden of establishing a proper record to show the nature and percentage of Fine’s practice to show Fine is a debt collector.  Appellant failed to meet that burden.  Thus, appellant’s FDCPA claim does not state a valid cause of action.  We hold that because appellant’s complaint fails to state a valid cause of action, the district court did not err in dismissing appellant’s suit on the pleadings.

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.