ANNETTE M. SCHAFFHAUSER; STEVE E. SCHAFFHAUSER, Jr. v. CITIBANK (South Dakota) N.A.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2275
___________
ANNETTE M. SCHAFFHAUSER;
STEVE E. SCHAFFHAUSER, Jr.,
Appellants
v.
CITIBANK (South Dakota) N.A.; BURTON NEIL & ASSOCIATES, P.C.;
BURTON NEIL, Esquire; EDWARD J. O’BRIEN, Esquire;
JAY H. PRESSMAN, Esquire; YALE D. WEINSTEIN, Esquire
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1:05-cv-02075)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 4, 2009
Before: MCKEE, HARDIMAN and COWEN, Circuit Judges
(Opinion filed: August 6, 2009)
_________
OPINION
_________
PER CURIAM
Appellants Annette and Steve Schaffhauser (the “Schaffhausers”) appeal pro se
from a July 1, 2008, judgment entered against them by the United States District Court for

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In addition, although not listed as separate counts, the Schaffhausers made vague1
reference to the Racketeer influenced and Corrupt Organization Act (“RICO”), 18 U.S.C.
§§ 1961-1968, common law fraud, conspiracy, and tort law.
The Schaffhausers do not directly dispute the existence or amount of the underlying2
credit card debts. Rather, they contend that the debts, “if [they do] exist,” are “‘time
2
the Middle District of Pennsylvania. For the following reasons, we will affirm the District
Court’s judgment.
I. Background
In October 2005, Annette and Steve Schaffhauser separately filed complaints in the
District Court against credit card issuer Citibank (South Dakota), N.A. (“Citibank”) and
debt collection attorneys Burton Neil, Edward O’Brien, Jay Pressman, and Yale Weinstein,
and their law firm, Burton Neil & Associates, P.C. (collectively, the “Neil defendants”).
The District Court consolidated the actions and the Schaffhausers, through counsel, filed
an amended complaint. In it, the Schaffhausers raised claims of abusive, deceptive, and
unfair debt collection practices, as prohibited by the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq., and by various Pennsylvania statutes.1
The Schaffhausers’ claims all relate to state court debt collection actions that
Citibank, through its counsel, the Neil defendants, initiated in 2001 in the Court of
Common Pleas of Dauphin County, Pennsylvania. In those actions, Citibank sought to
collect on delinquent credit card debts and associated fees and penalties. The
Schaffhausers claim that Citibank and the Neil defendants initiated and pursued the debt
collection actions in a deceptive and abusive manner and without legitimate cause. In2

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barred’ and the Statute of Limitations has expired.” See Docket No. 69, Amended
Complaint, at ¶¶ 45, 80.
After more than two years of inactivity, in November 2004, the Court of Common3
Pleas notified the parties that it would terminate the debt collection actions unless the
parties indicated an intention to proceed. The Neil defendants informed the Court of
Common Pleas that Citibank intended to proceed, thereby prompting a flurry of litigation
activity, including the exchange of discovery requests and the submission of pre-trial
motions.
Under the FDCPA, a “debt collector” is broadly defined as one who attempts to4
collect debts “owed or due or asserted to be owed or due another.” 1 5 U.S.C. § 1692a(6).
A “creditor” is one who “offers or extends to offer credit creating a debt or to whom a
debt is owed.” 15 U.S.C. § 1692a(4). “The FDCPA’s provisions generally apply only to
debt collectors.” Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000).
“Creditors - as opposed to debt collectors - generally are not subject to the FDCPA.” Id.
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addition, they contend that at least in the action against Steve Schaffhauser, Citibank and
the Neil defendants fabricated documents to support their claims. Ultimately, the Court of
Common Pleas granted summary judgment in favor of Citibank against Steve
Schaffhauser in June 2007, and against Annette Schaffhauser in October 2007.3
In the District Court, Citibank moved to dismiss the Schaffhausers’ claims,
primarily arguing that, because Citibank is a creditor and not a debt collector, Citibank is
not subject to the FDCPA. The District Court granted Citibank’s motion and dismissed4
the FDCPA claims with prejudice, and the remaining claims without prejudice. Citibank
also sought sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure because
the Schaffhausers did not withdraw the FDCPA claims after being notified that the
FDCPA does not apply to creditors. The District Court awarded Citibank sanctions.
The Neil defendants moved for summary judgment. On March 27, 2008, the

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The District Court also awarded summary judgment to the Neil defendants to the5
extent the Schaffhausers were raising a RICO claim, because such a claim lacked
evidentiary support. On appeal, the Schaffhausers raise no arguments concerning a RICO
claim. We therefore need not address the issue because it is waived. See Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
4
District Court granted the motion as to the FDCPA claims, concluding that they were
barred by the statute of limitations. The District Court dismissed the remaining state law
claims without prejudice pursuant to 28 U.S.C. § 1367(c)(3). On July 1, 2008, the5
District Court entered judgment in favor of the Neil defendants on the FDCPA claims and
closed the case.
Through counsel, the Schaffhausers filed a timely appeal. See Fed. R. App. P.
4(a)(2). Their counsel has since withdrawn and the Schaffhausers are now proceeding pro
se. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291.
II. Analysis
On appeal, the Schaffhausers raise one argument: that the District Court erred by
granting the Neil defendants’ motion for summary judgment on the ground that the
FDCPA’s one-year statute of limitations barred the Schaffhausers’ FDCPA claims. We
exercise plenary review over the District Court’s order. See Northview Motors, Inc. v.
Chrysler Motors Corp., 227 F.3d 78, 87 (3d Cir. 2000).
An action under the FDCPA must be brought “within one year from the date on
which the violation occurs.” 15 U.S.C. § 1692k(d). Where FDCPA claims are premised

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Attorneys who engage in debt collection litigation activities must comply with the6
FDCPA. See Heintz v. Jenkins, 514 U.S. 291, 292 (1995). The Schaffhausers do not
identify any allegedly improper activity by the Neil defendants apart from the Neil
defendants’ participation in the state court debt collection actions.
5
upon allegations of improper pursuit of debt collection litigation, courts are split as to6
when the FDCPA’s one-year statute of limitations begins to run: some have held that such
claims accrue upon filing the underlying collection action, see Naas v. Stolman, 130 F.3d
892, 893 (9th Cir. 1997), while others use the date on which the purported debtor was
served with the complaint. See Johnson v. Riddle, 305 F.3d 1107, 1113 (10th Cir. 2002).
In this case, we need not address whether the limitations period began to run upon filing or
upon service, because, under either approach, the statute of limitations began to run in
2001. The Schaffhausers’ FDCPA claims, filed in 2005, are clearly untimely.
Implicitly acknowledging the statute of limitations problem, the Schaffhausers
argue that the actions taken by the Neil defendants “constitute a continuing violation,”
bringing their otherwise time-barred claims within FDCPA’s one-year statute of
limitations. However, the Schaffhausers offer no support for their contention that
participation in ongoing debt collection litigation qualifies as a “continuing violation” of
the FDCPA, and we are aware of none. Indeed, the only circuit court decision addressing
this issue has concluded precisely the opposite. Naas, 130 F.3d at 893. Generally, our
decisions have limited the continuing violation doctrine to the employment discrimination
context. See, e.g., O’Connor v. City of Newark, 440 F.3d 125, 127-28 (3d Cir. 2006). We

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In addition, it appears from the record that the Schaffhausers retained counsel at7
some point during the state court collection actions. To the extent the Schaffhausers
complain that the Neil defendants improperly communicated with their attorneys, there is
a serious question whether communications between attorneys are subject to the FDCPA.
See Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir. 2002) (stating in dicta that
communications with a debtor’s attorney are not actionable under the FDCPA); see also,
Richmond v. Higgins, 435 F.3d 825, 828 n. 4 (8th Cir. 2006) (discussing holdings of
district courts indicating that the FDCPA does not apply to communications with debtors’
attorneys).
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decline to extend the doctrine to the circumstances of this case.7
III. Conclusion
The Schaffhausers’ FDCPA claims against the Neil defendants are premised upon
state court debt collection actions initiated in 2001. The Schaffhausers waited to bring
their FDCPA claims until 2005. As a result, the claims are barred by the FDCPA’s one-
year statute of limitations. See 15 U.S.C. § 1692k(d). We therefore will affirm the
District Court’s judgment.

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