Filed: Mar. 05, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1290 MOUNIA ELYAZIDI, Plaintiff – Appellant, v. SUNTRUST BANK; MITCHELL RUBENSTEIN & ASSOCIATES, P.C., d/b/a Rubenstein and Cogan, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:13-cv-02204-DKC) Argued: January 27, 2015 Decided: March 5, 2015 Before NIEMEYER, THACKER, and HARRIS, Circuit Judges. Affirmed by publish
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1290 MOUNIA ELYAZIDI, Plaintiff – Appellant, v. SUNTRUST BANK; MITCHELL RUBENSTEIN & ASSOCIATES, P.C., d/b/a Rubenstein and Cogan, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:13-cv-02204-DKC) Argued: January 27, 2015 Decided: March 5, 2015 Before NIEMEYER, THACKER, and HARRIS, Circuit Judges. Affirmed by publishe..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1290
MOUNIA ELYAZIDI,
Plaintiff – Appellant,
v.
SUNTRUST BANK; MITCHELL RUBENSTEIN & ASSOCIATES, P.C., d/b/a
Rubenstein and Cogan,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:13-cv-02204-DKC)
Argued: January 27, 2015 Decided: March 5, 2015
Before NIEMEYER, THACKER, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Niemeyer and Judge Harris joined.
ARGUED: Ernest P. Francis, ERNEST P. FRANCIS, LTD., Alexandria,
Virginia, for Appellant. Ronald S. Canter, LAW OFFICES OF
RONALD S. CANTER, LLC, Rockville, Maryland; John Russell
Griffin, HARTMAN & EGELI, LLP, Annapolis, Maryland, for
Appellees. ON BRIEF: Matthew A. Egeli, HARTMAN & EGELI, LLP,
Annapolis, Maryland, for Appellee SunTrust Bank.
THACKER, Circuit Judge:
Mounia Elyazidi (“Appellant”) overdrew her checking
account when, despite having only a few hundred dollars in the
account, she cut herself a check for nearly $10,000. A debt
collector, acting on behalf of the bank, took her to court in
Virginia and won. Appellant, not content to pay the judgment
and let the matter drop, filed this lawsuit against the bank and
its lawyers (collectively, “Appellees”). Her suit alleges that
Appellees violated Maryland consumer protection laws, and that
the bank’s lawyers violated the Fair Debt Collection Practices
Act (“FDCPA”). The federal district court dismissed Appellant’s
suit for failure to state a claim pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. We affirm.
I.
Appellant lives in Fairfax County, Virginia. In
September 2010, she opened a checking account with SunTrust Bank
(“SunTrust”), a Georgia-based bank with thousands of branches
and ATMs across much of the South and along the East Coast. In
the course of opening the account, Appellant signed an agreement
stating that her banking transactions “shall be governed by the
rules and regulations for this account.” J.A. 38. 1 Those rules
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
2
and regulations include a provision addressing the account
holder’s overdraft liability:
You are liable for all amounts charged to
your Account, whether by offset, overdraft,
lien or fees. If we take court action or
commence an arbitration proceeding against
you to collect such amounts, . . . you will
also be liable for court or arbitration
costs, other charges or fees, and attorney’s
fees up to 25 percent, or an amount as
permitted by law, of the amount owed to us.
Id. at 56.
As of September 15, 2010, the account held no more
than a few hundred dollars. Nevertheless, Appellant cut herself
a check for $9,800. 2 She cashed the check at a SunTrust branch,
resulting in a sizeable overdraft.
A.
After its own attempts to collect the money proved
unsuccessful, SunTrust hired a Maryland law firm, Mitchell
Rubenstein & Associates (“MR&A”), 3 to bring a debt collection
suit. MR&A filed suit on SunTrust’s behalf in the general
2
The SunTrust branch cashed the check for this amount. In
fact, though, there was a discrepancy between the number figure
in the dollar box (“$9,800”) and the amount stated in text below
the payee line (“Nine thousand and nine hundred 00/100
dollars”). J.A. 214.
3
The amended complaint in this suit asserts that MR&A does
business under the name Rubenstein and Cogan. Court filings in
the Virginia debt collection action that preceded this suit
likewise refer to the firm as Rubenstein and Cogan.
3
district court of Fairfax County, Virginia, on June 12, 2012.
Instead of drafting a detailed complaint, MR&A utilized a
warrant in debt, a standardized pleading that the Virginia
courts make available to creditors. 4 This standardized pleading
provides, in relevant part:
Plaintiff(s) claim that Defendant(s) owe
Plaintiff(s) a debt in the sum of
$ _____ net of any credits, with interest at
_____ % from date of _____ until paid,
$ _____ costs and $ _____ attorney’s
fees . . . .
J.A. 25. Appellees filled in the blanks to indicate that
Appellant owed $9,490.82, plus 6 percent interest; $58 in costs;
and $2,372.71 in attorneys’ fees.
To support the warrant in debt, Appellees submitted to
the court an “Affidavit of Account,” in which a SunTrust officer
affirmed that “[t]he amount of Nine thousand four hundred ninety
and 82/100 dollars ($9,490.82) plus reasonable attorney fees of
25% and the costs of this proceeding is justly due and owing
from debt to SunTrust.” J.A. 31. In addition, MR&A submitted
its own affidavit, dated June 11, 2012, in support of the claim
4
See Va. Code Ann. § 16.1-79 (authorizing civil actions
“brought by warrant”); In re Faruque, No. 07-13375-SSM, 2009 WL
2211210, at *5 n.8 (Bankr. E.D. Va. July 20, 2009)
(characterizing the warrant in debt as a “simplified form of
process” that “does not require a detailed statement of the
cause of action”).
4
for attorneys’ fees. In that document (the “June 2012 Revesman
Affidavit”), attorney Cynthia Kaplan Revesman (“Revesman”)
requested “an award of 25% percent [sic] as a just and
reasonable fee, which is equal to or less than the actual
arrangement with client in this case.” Id. at 32. Her
affidavit attests that her billable rate was $250 per hour and
that she spent approximately one hour preparing the warrant in
debt. The affidavit further states that Revesman “will require
an additional 3 hours for Court appearances and travel,” and
that, based on similar cases she has handled during her career,
“counsel anticipates at least 20 additional hours in order to
satisfy its judgment by execution.”
Id.
Later, in response to a court order, Appellees filed a
bill of particulars outlining the allegations against Appellant.
Among the exhibits accompanying this filing were two monthly
statements for Appellant’s checking account. Appellant’s social
security number appeared on both statements. When, in December
2012, Appellant’s attorney complained about the exposure of his
client’s personal financial information, the judge agreed to
have the number redacted.
The general district court entered judgment “in the
sum demanded for the plaintiff on the evidence.” J.A. 151.
Later, at a separate hearing, counsel for SunTrust submitted an
updated affidavit supporting the claim for attorneys’ fees. In
5
this new affidavit, dated February 27, 2013, Revesman reported
that she had expended approximately 13.9 hours on the case. She
provided a breakdown of how she spent those hours and, based on
that breakdown, calculated a billable amount of $4,025. The
court -- explaining that “it’s been the practice of this Court
normally to award less than what [counsel] ask[s] for” -- opted
to award only $2,372.71 “because I think that . . . minimally
more than that was spent in this entire matter.” Id. at 174-75.
B.
Appellant’s response to her defeat in the collection
suit was to file a complaint against SunTrust and MR&A in
circuit court in Montgomery County, Maryland. Her amended
complaint asserted seven claims in all, of which five are at
issue in this appeal. 5 The first four counts challenged
Appellees’ efforts to recover attorneys’ fees in the Virginia
suit:
• Count I accused Appellees of violating the
Maryland Consumer Debt Collection Act
(“MCDCA”), which bars debt collectors from
attempting to “enforce a right with
knowledge that the right does not exist,”
Md. Code Ann., Com. Law § 14-202(8);
5
Two of the claims, Counts V and VII, accused MR&A of
engaging in unfair or unconscionable acts in violation of 15
U.S.C. § 1692f. The district court dismissed those counts, and
Appellant has not appealed their dismissal.
6
• Count II accused SunTrust of unfair or
deceptive conduct in violation of the
Maryland Consumer Protection Act (“MCPA”),
Md. Code Ann., Com. Law §§ 13-301(1),
-408(a);
• Count III accused MR&A of making false
representations in violation of the FDCPA,
15 U.S.C. § 1692e(2); and
• Count IV accused MR&A of using “unfair or
unconscionable means to” collect a debt
that was neither “expressly authorized by
the agreement creating the debt [n]or
permitted by law,” in violation of the
FDCPA, 15 U.S.C. § 1692f(1).
Lastly, Appellant sought to recover for the disclosure of her
social security number. Specifically:
• Count VI accused MR&A of violating 15
U.S.C. § 1692f by failing to redact
Appellant’s social security number from
the bank statements accompanying the bill
of particulars.
Appellees removed the case to the United States
District Court for the District of Maryland. There, SunTrust
and MR&A separately filed motions to dismiss all claims.
Broadly speaking, these motions argued that Appellant’s amended
complaint did not state a claim. In addition, MR&A argued that
the Rooker-Feldman doctrine deprived the district court of
subject matter jurisdiction over the FDCPA claims in Counts III
and IV.
Preliminarily, the district court rejected MR&A’s
Rooker-Feldman argument, reasoning that Counts III and IV were
7
not barred because they do not challenge “the propriety of the
[Virginia] court’s order granting a fee award.” Elyazidi v.
SunTrust Bank, No. 13-2204, 2014 WL 824129, at *5 (D. Md. Feb.
28, 2014). Having assured itself of its jurisdiction, the court
proceeded to dismiss all of Appellant’s claims pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
First, the court concluded that Counts III and IV,
brought under the FDCPA, failed because the warrant in debt and
accompanying affidavits did nothing more than supply an estimate
of the attorneys’ fees that would be due at the conclusion of
the case, in compliance with Virginia state court procedure.
See Elyazidi, 2014 WL 824129, at *6. Next, the court explained
that Count VI could not survive because the disclosure of
Appellant’s social security number was, in all likelihood, a
mere “oversight that was cured by redaction of the relevant
documents.”
Id. at *7.
Finally, the district court acknowledged that, having
dismissed all federal claims, it was under no obligation to
consider Counts I and II, the state law claims. See Elyazidi,
2014 WL 824129, at *7 (citing 28 U.S.C. § 1367(c)(3)).
Nevertheless, the court opted to exercise supplemental
jurisdiction over those claims “[i]n the interest of judicial
economy.”
Id. The court proceeded to dismiss Counts I and II
8
on the ground that the Maryland statutes “have no
extraterritorial effect.” Id. at *8.
II.
On appeal, Appellees renew their argument that the
district court lacked subject matter jurisdiction over Counts
III and IV. The limits of subject matter jurisdiction pose a
“threshold issue” that this court must investigate “before
addressing the merits” of Appellant’s claims. Jones v. Am.
Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999).
Appellees argue that the Rooker-Feldman doctrine bars
Counts III and IV because these counts -- both challenging
MR&A’s pursuit of attorneys’ fees in state court -- “are
premised on the theory that the state court erred when it
awarded SunTrust 25% attorney’s fees in the judgment.”
Appellees’ Br. 10. Generally speaking, the Rooker-Feldman
doctrine provides that jurisdiction to review state court
decisions lies not with the lower federal courts, but
“exclusively with superior state courts and, ultimately, the
United States Supreme Court.” Friedman’s, Inc. v. Dunlap, 290
F.3d 191, 196 (4th Cir. 2002) (internal quotation marks
omitted). However, a federal court is not stripped of its
jurisdiction simply because the claim challenges conduct that
was previously examined in a state court action. Rather, the
restriction on the federal district courts’ jurisdiction is
9
confined to “cases brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court
review and rejection of those judgments.” Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (emphasis
supplied); see Davani v. Va. Dep’t of Transp.,
434 F.3d 712,
718-19 (4th Cir. 2006).
The instant appeal poses no challenge to the Virginia
court’s judgment. That judgment reflected a post-trial
determination that SunTrust’s counsel was entitled to $2,372.71
in fees for the 13.9 hours of work put into the case.
Appellant’s complaint takes no issue with those figures. Her
argument, rather, is that Appellees’ pre-trial representations
were unlawful because they insinuated that she owed money that,
to that point, SunTrust’s counsel had not yet earned. We hold,
therefore, that her claims are independent from the Virginia
court’s judgment, and that the Rooker-Feldman doctrine did not
bar the federal district court from hearing them.
III.
We proceed now to the merits of Appellant’s arguments
in this appeal.
A.
We begin with Counts III and IV, which allege that the
Virginia warrant in debt and accompanying affidavits wrongfully
10
represented that Appellant owed $2,372.71 in attorneys’ fees --
an amount exactly equal to 25 percent of Appellant’s debt to
SunTrust. Appellant argues that these representations were
wrongful in two ways. First, she says, SunTrust’s rules and
regulations merely capped her liability for attorneys’ fees at
25 percent. Second, she argues that she could not have owed the
full 25 percent at the time Appellees filed the Virginia suit
because, to that point, MR&A had not yet performed the hours of
work necessary to justify the award. Count III alleges that the
firm’s statements were false or misleading representations in
violation of 15 U.S.C. § 1692e. Count IV condemns the
statements as an unfair or unconscionable means of debt
collection in violation of § 1692f(1).
The district court dismissed both counts for failure
to state a claim. “We review the district court’s grant of a
motion to dismiss de novo, accepting as true the complaint’s
factual allegations and drawing all reasonable inferences in
favor of the plaintiff.” Warren v. Sessoms & Rogers, P.A., 676
F.3d 365, 373 (4th Cir. 2012). To survive a Rule 12(b)(6)
motion, the allegations must “advance the plaintiff’s claim
‘across the line from conceivable to plausible.’” Walters v.
McMahen,
684 F.3d 435, 439 (4th Cir. 2012) (quoting Bell Atl.
Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Appellant, we
11
conclude, has failed to propel any of her claims across that
line.
1.
Pursuant to 15 U.S.C. § 1692e, a debt collector 6 may
not “use any false, deceptive, or misleading representation or
means in connection with the collection of any debt.” 15 U.S.C.
§ 1692e. It is unlawful to make a “false representation of (A)
the character, amount, or legal status of any debt; or (B) any
services rendered or compensation which may be lawfully received
by any debt collector for the collection of a debt.” Id.
§ 1692e(2). To violate the statute, a representation must be
material, see
Warren, 676 F.3d at 374, which is to say, it must
be “important in the sense that [it] could objectively affect
the least sophisticated consumer’s decisionmaking.” Powell v.
Palisades Acquisition XVI, LLC, No. 14-1171,
2014 WL 7191354, at
*7 (4th Cir. Dec. 18, 2014). Similarly, in assessing whether a
debt collector’s representation is misleading, we view the
representation “from the vantage of the least sophisticated
consumer.” Russell v. Absolute Collection Servs., Inc., 763
6
“It is uncontestable that the FDCPA creates a cause of
action against attorneys who act as debt collectors for their
false statements about the debt.” Sayyed v. Wolpoff & Abramson,
485 F.3d 226, 235 (4th Cir. 2007); see also Wilson v. Draper &
Goldberg, P.L.L.C.,
443 F.3d 373, 378 (4th Cir. 2006). MR&A
does not dispute that it qualifies as a debt collector under the
statute.
12
F.3d 385, 394 (4th Cir. 2014) (internal quotation marks
omitted). Under this standard, we consider how a “naive”
consumer would interpret the statement. United States v. Nat’l
Fin. Servs., Inc.,
98 F.3d 131, 136 (4th Cir. 1996). However,
we do not give credit to “bizarre or idiosyncratic
interpretations”; we assume “a quotient of reasonableness
and . . . a basic level of understanding and willingness to read
with care.”
Id.
There is no denying that, as a general matter,
“litigation activity is subject to the FDCPA.” Sayyed v.
Wolpoff & Abramson,
485 F.3d 226, 231 (4th Cir. 2007); see
Heintz v. Jenkins,
514 U.S. 291, 293, 299 (1995) (holding that a
car loan borrower could pursue FDCPA claims against the lender’s
counsel for falsely asserting in a letter that the borrower owed
money for a particularly broad substitute insurance policy on
the car). As always, though, we must view the allegedly false
or misleading representations in context. Here, where the debt
collector sought no more than applicable law allowed and
explained via affidavit that the figure was merely an estimate
of an amount counsel expected to earn in the course of the
13
litigation, 7 the representations cannot be considered misleading
under 15 U.S.C. § 1692e(2).
The September 2010 agreement -- which Appellant signed
-- authorized SunTrust to request “up to 25 percent” of any
“amount owed” to the bank. J.A. 38, 56. Appellees’ request for
$2,372.71 in attorneys’ fees fell within the 25 percent cap.
The justification for requesting the maximum amount permissible
under contract was supplied in the June 2012 Revesman Affidavit,
which detailed the number of hours SunTrust’s counsel expected
to devote to the suit. The affidavit explained that the bulk of
those hours would be spent endeavoring to satisfy the judgment
by execution. Though Appellant’s complaint alleges that this
estimate had no basis in fact, Appellant’s counsel conceded at
oral argument that he had no evidence to support this
allegation.
It is true that the standardized warrant-in-debt form
uses the word “owe,” id. at 30, suggesting perhaps that the
7
To be clear, this opinion in no way suggests that a prayer
for attorneys’ fees can never present an actionable
misrepresentation under the FDCPA. Some lower courts have taken
that position. See, e.g., Sayyed v. Wolpoff & Abramson, LLP,
733 F. Supp. 2d 635, 648 (D. Md. 2010); Winn v. Unifund CCR
Partners, No. CV 06-447-TUC-FRZ,
2007 WL 974099, at *3 (D. Ariz.
Mar. 30, 2007); see also Argentieri v. Fisher Landscapes, Inc.,
15 F. Supp. 2d 55, 61-62 (D. Mass. 1998) (questioning, but never
deciding, whether a prayer for attorneys’ fees could ever
violate the FDCPA). Today’s decision does not reach this issue.
14
requested attorneys’ fees were presently due. This language,
however, cannot be read in isolation. Taking the June 2012
Revesman Affidavit into consideration, it is abundantly clear
that the prayer for attorneys’ fees was an estimate of an amount
the debtor would owe at the conclusion of the case. The
affidavit clarifies that SunTrust’s counsel was simply
“request[ing] an award of 25% percent [sic] as a just and
reasonable fee.” J.A. 32 (emphasis supplied). It further
explains that SunTrust’s counsel had spent one hour on the case
to date, and that counsel anticipated spending at least 23 more
hours pursuing and executing a judgment in SunTrust’s favor.
Under the circumstances, any consumer -- no matter how
sophisticated -- should have understood the nature of Appellees’
request.
In sum, we hold that Appellees’ prayer for attorneys’
fees cannot, as a matter of law, be a false, deceptive, or
misleading representation under § 1692e. Accordingly, we affirm
the district court’s judgment that Count III fails to state a
claim.
2.
Count IV, alleging a violation of 15 U.S.C.
§ 1692f(1), fails for similar reasons. Section 1692f condemns
the use of “unfair or unconscionable means to collect or attempt
to collect any debt,” and provides a non-exhaustive list of
15
proscribed conduct. 15 U.S.C. § 1692f. Subsection (1), which
Appellant invokes, prohibits “[t]he collection of any amount
(including any interest, fee, charge, or expense incidental to
the principal obligation) unless such amount is expressly
authorized by the agreement creating the debt or permitted by
law.” Id. § 1692f(1).
Appellant’s complaint alleges that the request for
$2,372.71 in attorneys’ fees was unauthorized because “neither
the agreement nor applicable law permit recovery of attorney’s
fees for services not performed.” J.A. 15. This argument has
no merit. By signing the September 2010 agreement, Appellant
agreed that, in the event of a “court action” to recover a debt,
she would be contractually liable for “attorney’s fees up to 25
percent . . . of the amount owed” to the bank. Id. at 56.
Plainly, this agreement authorized SunTrust to seek attorneys’
fees in the Virginia debt collection suit. Though under
Virginia law an award of attorneys’ fees must be
“reasonable . . . under the facts and circumstances of the
particular case,” Lee v. Mulford,
611 S.E.2d 349, 350-51 (Va.
2005) (internal quotation marks omitted), it was entirely proper
for SunTrust to estimate an appropriate fee within the limits
prescribed in the September 2010 agreement. Indeed, the
Commonwealth encourages plaintiffs to include such estimates
when filling out the standardized warrant-in-debt form, which
16
supplies a blank space for attorneys’ fees along with the spaces
provided for the alleged debt and court costs. Though we draw
“all reasonable inferences” in favor of the plaintiff, Owens v.
Balt. City State’s Attorneys Office, 767 F.3d 379, 388 (4th Cir.
2014) (internal quotation marks omitted), the only reasonable
inference here is that Appellees sought to enforce their
contractual rights in compliance with state court procedure. To
claim, as Appellant does, that such activity is unfair or
unconscionable under § 1692f(1) is simply not plausible. We
hold, therefore, that Count IV fails to state a claim for
relief.
B.
We turn now to Count VI, which asserts that MR&A’s
disclosure of Appellant’s social security number in the bank
statements accompanying the bill of particulars constituted an
unfair or unconscionable means of debt collection, in violation
of 15 U.S.C. § 1692f.
Section 1692f lists eight examples of unfair or
unconscionable practices. These practices include: collecting
money that is not expressly authorized by an agreement creating
the debt, see 15 U.S.C. § 1692f(1); accepting a postdated check
without properly notifying the drawer of when it will be
deposited, or threatening to deposit it before the specified
date, see id. § 1692f(2), (4); soliciting a postdated check “for
17
the purpose of threatening or instituting criminal prosecution,”
id. § 1692f(3); making collect calls to a debtor without
disclosing the “true purpose of the communication,”
id.
§ 1692f(5); threatening nonjudicial action to dispossess the
debtor of property, even though the debt collector has no
present right to possess the property or no intention to take
possession of it, see
id. § 1692f(6)(A)-(B); “[c]ommunicating
with a consumer regarding a debt by post card,”
id. § 1692f(7);
and sending mail to a consumer via envelopes that plainly
indicate the sender is a debt collector,
id. § 1692f(8). What
all of these enumerated activities have in common is the
capacity to harass the debtor or to pressure her to pay the
debt.
No doubt, the public disclosure of one’s social
security number can be alarming. Here, though, where the lapse
occurred in the course of litigation and was easily remedied,
the disclosure cannot be considered unfair or unconscionable.
While, conceivably, a threat to expose one’s social security
number might pressure a debtor to pay off a debt, there is no
allegation that Appellees ever made such a threat. Appellees
simply failed to redact the number before enclosing the bank
statements with the bill of particulars, an error the court
promptly corrected. Though Appellant characterizes the
disclosure here as “a means to extort payment,” reasoning that a
18
“consumer will simply pay the debt rather than risk identity
theft,” J.A. 16-17, her logic is dubious at best. The record
here belies her assertion that counsel would “have no
alternative but to advise the consumer to pay the debt so that
the consumer can avoid identity theft.” Id. at 17. Appellant
was not cowed into paying the debt. Rather, she simply asked
the court to redact the identifying information.
In sum, we hold that, as a matter of law, the failure
to redact Appellant’s social security number before submitting
the bank statements to the Virginia court was not an unfair or
unconscionable means of debt collection under the FDCPA. The
district court was correct in concluding that Count VI does not
state a claim for relief, and we affirm the dismissal of that
claim.
C.
The final two claims are Maryland state-law claims,
both challenging Appellees’ attempts to recover attorneys’ fees
in the Virginia suit. Count I accuses Appellees of violating
the MCDCA, which provides that debt collectors may not “[c]laim,
attempt, or threaten to enforce a right with knowledge that the
right does not exist.” Md. Code Ann., Com. Law § 14-202(8).
Count II accuses SunTrust, exclusively, of making “false
statements or representations that had the capacity, tendency,
or effect of misleading consumers,” J.A. 14, in violation of the
19
MCPA. See Md. Code Ann., Com. Law §§ 13-301(1), -303
(prohibiting “unfair or deceptive trade practice[s],” including
the making of any “false, falsely disparaging, or misleading
oral or written statement, visual description, or other
representation of any kind which has the capacity, tendency, or
effect of deceiving or misleading consumers”). The district
court, choosing to exercise supplemental jurisdiction over these
claims “[i]n the interest of judicial economy,” dismissed the
claims on the ground that neither the MCDCA nor the MCPA applies
to conduct occurring “entirely” in Virginia. Elyazidi v.
SunTrust Bank, No. 13-2204, 2014 WL 824129, at *7-8 (D. Md. Feb.
28, 2014).
In Maryland, regulatory statutes are “generally
construed as not having extra-territorial effect unless a
contrary legislative intent is expressly stated.” Consumer
Prot. Div. v. Outdoor World Corp., 603 A.2d 1376, 1382 (Md. Ct.
Spec. App. 1992); see also Chairman of Bd. of Trs. of Emps.’
Ret. Sys. v. Waldron,
401 A.2d 172, 177 (Md. 1979) (stating that
a Maryland statute prohibiting a state pensioner from accepting
paid legal work does not prohibit the pensioner from practicing
law outside of Maryland, as the state’s General Assembly “has no
power to regulate whom our sister jurisdictions may authorize to
engage in the practice of law within their borders”); State ex
rel. Gildar v. Kriss,
62 A.2d 568, 569 (Md. 1948) (“Ordinarily a
20
statute is not applicable extraterritorially, but only to acts
done within the jurisdiction . . . .”). In Consumer Protection
Division v. Outdoor World Corp., a Maryland appellate court
concluded that the MCPA was capable of reaching at least some
out-of-state activity affecting Maryland residents.
Specifically, the court held that a state agency could bring
administrative charges under the MCPA against an out-of-state
company that allegedly made false representations in mailings to
Maryland residents. 603 A.2d at 1382-83. At the same time,
though, the court determined that the agency had no authority to
regulate “sales practices that occur entirely within other
States.”
Id. at 1383. Accordingly, even where the challenged
mailings enticed Maryland residents to travel out of state on
false pretenses, the MCPA did not govern high-pressure sales
tactics the company allegedly employed at those out-of-state
locations. See
id.
In an attempt to frame the challenged activities as
in-state conduct, Appellant asks us to note that MR&A’s office
is in Maryland and that SunTrust has “dozens” of branches there.
Appellant’s Br. 26; see also J.A. 6-7. The critical point,
however, is not whether Appellees conduct business in Maryland,
but whether some significant portion of the challenged activity
occurred there. Here, Appellant was a Virginia resident who
incurred a debt in Virginia. The allegedly offensive
21
representations appeared in Virginia court documents, and any
harm they might have inflicted could have occurred only in
Appellant’s home state of Virginia.
We likewise find no significance in Appellant’s
related argument -- raised, in the first instance, on appeal --
that “virtually every act that would create liability under the
Maryland statutes occurred in Maryland.” Appellant’s Reply Br.
23. As to this, Appellant would have us note that MR&A prepared
all legal documents at its Maryland office;
“received” instructions from SunTrust there; and, from that
office, “directed the filing” of the documents to the Virginia
court. Id. These facts do not appear in Appellant’s complaint,
but even assuming we could infer them from the stated
allegations, it would make no difference. The act of sitting in
a Maryland office and drafting court documents, or taking phone
calls, is not the activity that Appellant seeks to condemn in
the case. Her complaint, rather is that she suffered harm when
Appellees filed the allegedly offensive documents in a Virginia
court and served process on her in Virginia. Appellant cannot
use Maryland’s consumer protection laws to gin up a lawsuit
contesting this activity.
We hold that the MCDCA and MCPA have no application
here. Therefore, Counts I and II fail to state a claim and were
properly dismissed by the district court.
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IV.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
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