Makhnevich v. Bougopoulos

22-936-cv
Makhnevich v. Bougopoulos

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 17th day of April, two thousand twenty-four.

PRESENT:
BARRINGTON D. PARKER,
ALISON J. NATHAN,
Circuit Judges. ∗
_____________________________________

Stacy Makhnevich,

Plaintiff-Appellant,

v. 22-936

Gregory S. Bougopoulos and Novick
Edelstein Pomerantz P.C.,

∗
Judge Rosemary S. Pooler, originally a member of the panel, passed away on August 10, 2023.
The two remaining members of the panel, who are in agreement, have determined the matter.
See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457, 458–59 (2d Cir.
1998).
Defendants-Appellees,

Bryant Tovar and The Board of
Managers of the 2900 Ocean
Condominium,

Defendants. +

_____________________________________

FOR PLAINTIFF-APPELLANT: STACY MAKHNEVICH, pro se,
Brooklyn, NY.

FOR DEFENDANTS-APPELLEES: GREGORY S. BOUGOPOULOS,
Novick Edelstein Pomerantz
P.C., Yonkers, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Matsumoto, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Plaintiﬀ-Appellant Stacy Makhnevich, proceeding pro se, challenges the

district court’s order granting summary judgment in favor of Defendants-

+
The clerk is respectfully directed to amend the case caption.
2
Appellees Gregory Bougopoulos and his law ﬁrm, now named Novick Edelstein

Pomerantz P.C. (collectively, “the Firm”). 1 Because we agree with the district court

that the challenged conduct by the Firm did not violate the Fair Debt Collection

Practices Act (FDCPA), 15 U.S.C. §§ 1692–1692p), and that Makhnevich’s claims

were partially time-barred, we aﬃrm. We assume the parties’ familiarity with the

underlying facts and the procedural history of the case, which we discuss only as

necessary to explain our decision. 2

BACKGROUND

Makhnevich owns a Brooklyn condominium. In 2015, the condominium’s

Board retained the Firm to collect unpaid common charges and other fees. In April

2015, the Firm sent Makhnevich a letter, via certiﬁed mail, identifying the Firm as

a debt collector and notifying her that it had been retained to collect the unpaid

common charges, stating the amount the Board alleged she owed. In November

2015, after failing to collect, the Firm ﬁled a complaint in New York City Civil

1 Makhnevich also challenged the district court’s order dismissing her claims against her
condominium’s Board of Managers, but the parties have since stipulated the Board’s dismissal
from this appeal. We therefore only address Makhnevich’s claims against the Firm.
2
Despite the solicitude we extend to pro se litigants, we normally do not decide issues that a pro
se party fails to raise in her brief, see Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998), or has
mentioned only in passing, see Gerstenbluth v. Credit Suisse Secs. (USA) LLC, 728 F.3d 139, 142 n.4
(2d Cir. 2013). Accordingly, we deem abandoned issues that Makhnevich fails to press on appeal.
3
Court, seeking damages and fees. Makhnevich claims the defendants engaged in

“sewer service”—failing to serve her with the summons and complaint and ﬁling

a false aﬃdavit to the contrary.

During the Civil Court proceedings, the Firm was contacted by an attorney,

Joe Schuessler, who stated he represented Makhnevich. The Firm sent him a copy

of Makhnevich’s account ledger. During later stages of the lawsuit, Makhnevich’s

two daughters—one of whom Makhnevich had granted a durable power of

attorney—appeared in court for their mother.

In February 2018, in response to Makhnevich’s motion to dismiss the Civil

Court proceeding, the Firm sent her and her daughters a letter on behalf of the

Board. The letter generally advised Makhnevich that the Firm believed her motion

was frivolous and aimed at delaying the state court case. The Firm notified

Makhnevich that if she did not withdraw it, the Firm would seek sanctions and

fees.

The Civil Court eventually granted summary judgment against

Makhnevich on liability. The Firm then prevailed after a trial on damages, and the

Civil Court awarded the Firm attorney’s fees.

4
In January 2018, while state court litigation was ongoing, Makhnevich sued

the Firm in federal district court, alleging that the Firm engaged in a host of unfair

debt collection practices both before and during the state court proceedings. After

the district court granted Makhnevich leave to ﬁle an amended complaint, she

moved to amend a second time, with the defendants opposing that motion. The

district court later granted the Firm’s motion for summary judgment because

Makhnevich’s various claims were either time-barred or meritless. See Makhnevich

v. Bougopoulos, No. 18-cv-285 (KAM) (VMS), 2022 WL 939409 (E.D.N.Y. Mar. 29,

2022).

DISCUSSION

Our review of the district court’s decision is de novo. See Washington v.

Napolitano, 29 F.4th 93, 103 (2d Cir. 2022) (summary judgment). Summary

judgment is appropriate only when, “resolving all ambiguities and drawing all

permissible factual inferences in favor of the non-moving party,” there is no

genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law. Id.

We aﬃrm the grant of summary judgment as to Makhnevich’s FDCPA

claims against the Firm. First, claims under the FDCPA are subject to a one-year

5
statute of limitations from the date a violation occurs. 15 U.S.C. § 1692k(d). The

district court correctly determined that Makhnevich’s Section 1692g written-notice

claim, which was based on an April 2015 communication, was ﬁled more than a

year-and-a half late—and that there was no basis to equitably toll the accrual of

her claim. It is “well settled that proof that a letter properly directed was placed

in a post oﬃce creates a presumption that it reached its destination in usual time

and was actually received by the person to whom it was addressed.” Hagner v.

United States, 285 U.S. 427, 430 (1932). The Firm provided such proof via a sworn

declaration and a U.S. Postal Service certiﬁed mail receipt. Makhnevich failed to

rebut this presumption. She submitted an undated screenshot of the Postal

Service’s website showing that the tracking information for the letter was not

currently available. The Postal Service generally only retains certiﬁed mail

tracking information for two years, and while Makhnevich claims that tracking

information can be retained for longer under the USPS Tracking Plus feature, there

is no indication that the feature was used here.

Makhnevich’s sewer service claim fails for similar reasons. For the reasons

aptly stated by the district court, Makhnevich did not overcome the presumption

created by the process server’s aﬃdavit that she was served with the Civil Court

6
summons and complaint. Makhnevich, 2022 WL 939409, at *10–11; see also Old

Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d 54, 57–58 (2d Cir. 2002).

Makhnevich also claims that the Firm violated 15 U.S.C. § 1692c(b), which

prohibits debt collectors from communicating with certain third parties without

prior consent of the debtor or the express permission of a court of competent

jurisdiction. The third parties at issue here are Makhnevich’s daughters—both of

whom had appeared in court on her behalf and one of whom had power of

attorney—and Attorney Schuessler, who initiated communications with the Firm

and indicated that he represented Makhnevich in the Civil Court action. The

communications Makhnevich alleges violate § 1692c(b) all related to attempts to

resolve the then-pending Civil Court proceedings. The Civil Court had ordered

the parties to attempt to settle the case. Given this context, these third-party

communications did not run afoul of the FDCPA, which does not prohibit “the

‘communications’ inherent in an ordinary lawsuit” because doing so would “cause

an ordinary debt-collecting lawsuit to grind to a halt.” Heintz v. Jenkins, 514 U.S.

291, 296 (1995); see also Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559

U.S. 573, 600 (2010).

7
Next, Makhnevich claims the Firm violated § 1692e(11), which prohibits a

failure to disclose that a communication is from a debt collector. This claim arose

out of a February 2018 letter sent to Makhnevich and her daughters. By February

2018, the Firm and Makhnevich had been engaged in the Civil Court action for

nearly a year and Makhnevich had already ﬁled this federal lawsuit, where she

explicitly argued that the defendants were “debt collector[s] as deﬁned in the

FDCPA.” ROA doc. 1 (Compl.), at 4. All sides knew the Firm was acting as a debt

collector. The letter’s failure to re-identify the Firm as a debt collector could not

have “impede[d] [Makhnevich]'s ability to respond to or dispute collection” and

therefore was immaterial. Cohen v. Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75, 85–

86 (2d Cir. 2018).

Finally, Makhnevich argues that the defendants intentionally harassed her

and were liable under 15 U.S.C. § 1692d, which bars debt collectors from taking

actions intended to “harass, oppress, or abuse any person in connection with the

collection of a debt.” Section 1692d contains a non-exhaustive list of proscribed

misconduct including violence, threats of violence, obscene language, publishing

shame lists, and unrelenting phone calls. See 15 U.S.C. § 1692d(1)–(6). Because

8
Makhnevich did not show that the defendants engaged in this kind of conduct, the

district court correctly granted summary judgment in favor of the Firm.

We have considered Makhnevich’s remaining arguments and ﬁnd them to

be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

Makhnevich v. Bougopoulos

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