NAZARIAN, J.
Reza Mostofi appeals from the decision of the Circuit Court for Montgomery County to dismiss his Second Amended Complaint against Midland Funding, LLC ("Midland Funding"), Midland Credit Management, Inc. ("Midland Credit"), and Lyons, Doughty & Veldhuis, P.C. ("Lyons") (collectively, the "appellees") with prejudice.
On November 12, 2012, Lyons brought the collection case in the District Court of Maryland for Montgomery County against Mr. Mostofi and on behalf of its clients, Midland Funding and Midland Credit. The complaint alleged that Mr. Mostofi owed $4,506.82 on a credit card account with Chase Bank, N.A. ("Chase"), and that Midland Funding had purchased the debt from Chase. Although the record does not contain a transcript, Mr. Mostofi's Notice of Intent to Defend raised the two arguments he asserts here: that he "is not indebted to [Midland Funding] as alleged" and that Midland Funding "does not have standing to sue." It is less clear whether he articulated these arguments at the hearing in the district court. But there is no dispute that the district court entered
It is equally undisputed that Mr. Mostofi appealed the judgment to the Circuit Court for Montgomery County, where the case was heard de novo on October 31, 2013. Again, Mr. Mostofi challenged Midland Funding's standing to sue him, and he offered evidence that, he argued, demonstrated that the debt belonged to Washington Mutual, if to anyone:
Lyons offered affidavits from Midland Funding employees to prove that it owned the debt, and Mr. Mostofi sought to cross-examine the affiants. It appears that the court rejected this request, and, in any event, that the affiants were not present. Mr. Mostofi also disputed the amount owed, and identified what he claimed were inconsistencies between statements about amounts owed as principal or interest. Lyons attempted to demonstrate that the debt was accurate by calling Mr. Mostofi to the stand and asking him details about several of the charges, with mixed success.
Based on the evidence, the circuit court ruled from the bench, and stated on the record that it ultimately disbelieved Mr. Mostofi and credited documents that Midland Funding offered into evidence but are not part of the record here:
Mr. Mostofi moved to set aside or vacate the judgment on December 5, 2013. The record here does not reveal a ruling on that motion or whether Mr. Mostofi appealed the judgment; the appellees proffer that the motion was denied and that Mr. Mostofi did not appeal.
Mr. Mostofi filed the Complaint in this case on November 27, 2013, before he filed his motion to set aside or vacate the judgment
Midland Funding, Midland Credit, and Lyons all moved to dismiss. Midland Funding and Midland Credit argued that Mr. Mostofi's claims were barred by res judicata and collateral estoppel, and that in the alternative, he had failed to state a claim for which relief could be granted. Lyons asserted that it had never been served in this case, and as such, filed its Motion before the Second Amended Complaint.
The circuit court held a hearing on the Motions on July 16, 2014. Counsel for Lyons proffered that he had brought the firm's receptionist, who was not authorized to receive service on its behalf, and who would testify that the sheriff who allegedly served Lyons incorrectly left the papers with her instead. When pressed, Mr. Mostofi said that he would "accept [Lyons's] word for it." Although he asked for another opportunity to serve Lyons, the court granted Lyons's Motion to Dismiss. The court then heard argument from Midland Funding and Midland Credit, and rebuttal from Mr. Mostofi, focusing particularly on the res judicata and collateral estoppel effects of the judgment in the collection case. Ultimately, the court held that to the extent Mr. Mostofi stated claims,
Mr. Mostofi filed a timely notice of appeal.
Mr. Mostofi raises four questions for our review:
Mr. Mostofi argues that the judgment entered against him in the collection case was a void judgment subject to collateral attack, and therefore is not barred by principles of res judicata, because Midland Funding was never assigned his debt and lacked standing to collect or sue on it. He further argues that the appellees are, in fact, liable under the FDCPA and the parallel state statutes, and that he was not compelled to litigate his claims as compulsory counterclaims under Maryland law. And although Mr. Mostofi does not concede that he failed to effect service on Lyons, he argues that if he had, the circuit court abused its discretion by dismissing the case against the firm.
Midland Funding and Midland Credit argue that res judicata and collateral estoppel barred Mr. Mostofi's claims, and dismissal was proper. They argue in the alternative that the circuit court properly dismissed the Second Amended Complaint because Mr. Mostofi had failed to state a claim for which relief may have been granted. Finally, Lyons simply argues that it was not served.
We review the circuit court's decisions de novo:
Cochran v. Griffith Energy Services, Inc., 426 Md. 134, 139, 43 A.3d 999 (2012) (internal quotation marks and citations omitted). We may affirm even if a trial court has not provided the preferred legal conclusions for the result:
Monarc Const., Inc. v. Aris Corp., 188 Md.App. 377, 385, 981 A.2d 822 (2009) (quoting Pope v. Board of Sch. Comm'rs, 106 Md.App. 578, 591, 665 A.2d 713 (1995) (citation omitted)).
We note at the outset that Mr. Mostofi's claims reach us in a rare posture: there are no findings of fact for us to review, but the collection case was fully litigated and the time for appeal has passed. The findings of fact in that case do not exist in a vacuum. We must determine what bearing they have on Mr. Mostofi's present case, and ultimately, whether principles of res judicata or collateral estoppel bar this case based on the result of the collection case. Together, they do.
Res judicata and collateral estoppel are also known by their more descriptive names: claim preclusion and issue preclusion. Claim preclusion means a party can no longer bring a claim because
Lizzi v. Wash. Metro. Transit Authority, 384 Md. 199, 207, 862 A.2d 1017 (2004) (quoting Alvey v. Alvey, 225 Md. 386, 390, 171 A.2d 92 (1961)). Issue preclusion means that if a previous case took place between the same parties or their privies, and the fact-finder made a finding that was "essential to" the judgment entered, all future cases between those parties are stuck with that finding and cannot relitigate the question. Welsh v. Gerber Products, Inc., 315 Md. 510, 516, 555 A.2d 486 (1989). In sum, claim preclusion bars litigation of claims, whereas issue preclusion generally bars re-litigation of facts.
When a party is sued, and that party could bring a permissive counterclaim, he or she is not required to "raise or waive" that counterclaim unless successful prosecution
Rowland v. Harrison, 320 Md. 223, 232, 577 A.2d 51 (1990) (quoting Restatement 2d of Judgments (1982) (Emphasis in original)). Rowland involved a veterinarian who sued to collect unpaid fees. Id. at 225-26, 577 A.2d 51. Ms. Rowland, the pet owner, claimed that Dr. Harrison had provided negligent care, and initially intended to raise his negligence as both a defense and a counterclaim. Id. However, Ms. Rowland ultimately asked the trial court to dismiss her counterclaim without prejudice because she could not gather the necessary evidence or expert testimony to pursue it fully in time for the debt collection action. Id. at 226-27, 577 A.2d 51. The trial court agreed, and granted Ms. Rowland's motion. Id. at 227, 577 A.2d 51. But when she re-filed her negligence claim in a new complaint, the trial court granted summary judgment against her on claim preclusion/res judicata grounds. Id. at 227-28, 577 A.2d 51.
The Court of Appeals reversed. Deciding as a matter of law that the "issue of negligence was [n]either litigated [n]or determined by [the trial court] in the debt action,"
Id. at 237, 577 A.2d 51. The Court observed that "[w]ere Rowland to successfully prosecute her malpractice action against Harrison, she would be entitled to whatever amount of damages are determined, but could not recover the fees paid for the treatment of the horse." Id. The Court held, therefore, that Dr. Harrison's debt collection action did not bar Ms. Rowland's subsequent malpractice action. Id.
Mr. Mostofi's first contention on appeal is that the judgment in the collection case is void because the debt at issue was owned by Washington Mutual, and although Midland Funding claimed that it purchased his debt from Chase, Midland Funding lacked standing to sue him. Because Mr. Mostofi's explicit purpose for making this argument is to render the collection case's judgment a nullity, he is on the wrong side of Rowland. He cites extensively from our opinion in Finch v. LVNV Funding LLC, 212 Md.App. 748, 71 A.3d 193 (2013), arguing that a void judgment "may be assailed at all times," and "[i]t does not constitute res judicata." But Finch is inapposite — unlike that one, this judgment is not void.
Finch concerned an unlicensed debt collector, LVNV. Id. at 752-753, 71 A.3d 193. LVNV had purchased the debts of Finch, and co-appellant Dorsey, by assignment. Id. at 752, 71 A.3d 193. LVNV won uncontested default judgments against both appellants at the district court. Id. Later, Finch and Dorsey filed a putative class-action against LVNV, and sought, among other things, to attack the judgments against them. Id. at 752-53, 71 A.3d 193. The circuit court dismissed the action, id. at 753, 71 A.3d 193, but we reversed, holding that a collection action on behalf of an unlicensed collector is akin to a judgment won by an unlicensed attorney and, therefore, void. Finch, 212 Md.App. at 761, 71 A.3d 193 ("Much like a complaint filed by a non-lawyer, a complaint filed by an unregistered collection agency is a nullity, and any judgment entered on such a complaint is void." (internal quotation marks and citation omitted)).
This case is different. While we did hold in Tucker v. Tucker, 35 Md.App. 710, 373 A.2d 16 (1977), that "a judgment is void unless the court which renders it has jurisdiction over the parties or the property," we went on to hold that res judicata can preclude a collateral attack on jurisdictional grounds:
Id. at 713, 373 A.2d 16 (quoting 244 Md. 18, 36, 222 A.2d 627 (1966)).
Unlike in Finch, where the appellants collaterally attacked judgments that had been uncontested, Mr. Mostofi concedes in his brief that he raised his lack of standing argument in the collection case:
The transcript from the circuit court also bears this out — Mr. Mostofi handed the court Washington Mutual statements bearing his account number, and argued that Midland Funding had failed to prove chain of custody.
The trial court ruled against Mr. Mostofi, and found for Midland Funding on the ownership point. Having failed to convince one trial court that jurisdiction was a problem, and having failed to appeal, Mr. Mostofi does not get another bite at the apple, even if we were to assume that he was right (and we do not) about who owned his debt. His collateral attack on the underlying debt judgment, then, is barred under res judicata.
The collection case judgment does not, however, share the same congruence with the statutory claims in this case. The FDCPA bars "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. It also creates an independent statutory remedy for aggrieved debtors. 15 U.S.C. § 1692k. That remedy is not limited, nor is it technically tied in any way, to the alleged debt:
Id.
The Maryland Consumer Debt Collection Act bars a debt collector from, among other things, "claim[ing], attempt[ing], or threaten[ing] to enforce a right with knowledge that the right does not exist." Md. Code (1975, 2013 Repl. Vol.), § 14-202 of the Commercial Law Article ("CL"). It, too, creates a statutory remedy for victims. See CL § 14-203 ("A collector who violates any provision of this subtitle is liable for any damages proximately caused by the violation, including damages for emotional distress or mental anguish."). Finally, the Maryland Consumer Protection Act bars 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," and any "failure to state a material fact if the failure deceives or tends to deceive." CL § 13-301. It also creates a statutory remedy for victims. See CL § 13-408 ("any person may bring an action to recover for injury or loss sustained by him as the result of a practice prohibited by this title.").
As Mr. Mostofi argues, a claim for a violation of the FDCPA is not necessarily a claim that the underlying debt being collected does not exist or has been misrepresented. See Senftle v. Landau, 390 F.Supp.2d 463, 469-70 (D.Md.2005) ("When a[n] FDCPA claim concerns collection activities, a[n] FDCPA claim does not arise out of the transaction creating the debt. Indeed, even if the Circuit Court correctly determined that the underlying debt was valid, Maryland rules of res judicata would not preclude [a consumer] from later seeking damages against creditors for illegally collecting that debt." (citations omitted)). Therefore, FDCPA claims are not necessarily barred by the doctrine of res judicata/claim preclusion if they are not asserted, because they do not attack a debt collection judgment per se. We have held that the same reasoning is applicable to the Maryland Consumer Debt Collection Act, see McKlveen v. Monika Courts Condominium, 208 Md.App. 369, 382-83, 56 A.3d 611 (2012), and there is no relevant difference for the Consumer Protection Act.
When a party tries to use one of these statutes to attack a judgment against him or her collaterally, however, res judicata/claim preclusion normally bars the attack. See Green v. Ford Motor Credit Co.,
The foregoing stretch doesn't help Mr. Mostofi for long, however: his FDCPA claims, and all others with respect to Midland Funding and Midland Credit, are defeated by the parallel doctrine of issue preclusion/collateral estoppel, which bars re-litigation of facts. "[W]hen [an] issue of fact ... is actually litigated and determined by a valid final judgment, and that determination is essential to the judgment, the determination is conclusive in a later action between the parties, whether the same or different claim is asserted." Colandrea, 361 Md. at 391, 761 A.2d 899 (quoting Potomac Design, Inc. v. Eurocal Trading, Inc., 839 F.Supp. 364 (D.Md. 1993)). We recently affirmed a four-part test to determine whether or not issue preclusion would apply to previously litigated facts:
GAB Enterprises, Inc. v. Rocky Gorge Development, LLC, 221 Md.App. 171, 187, 108 A.3d 521 (2015).
Mr. Mostofi's FDCPA and related claims — while asserted for the first time at trial in this case as opposed to the collection case — are all predicated on allegations decided against him in the collection case. Mr. Mostofi claims, for example, that Midland Funding misrepresented the amount of debt he owes, and that Midland Funding was never assigned the debt in the first place. But in the collection case, the court entered a judgment for Midland Funding and against Mr. Mostofi for a sum certain, despite the fact that Mr. Mostofi disputed Midland Funding's ownership of the debt. In so doing, the court satisfied all four GAB Enterprises prongs for the debt amount, and whether Midland Funding owned it, and Mr. Mostofi is precluded from re-litigating these issues.
The only other allegation upon which Mr. Mostofi bases his FDCPA and related state claims is his assertion that counsel for Midland in the collection case "could not establish that a meaningful review of [Mr.] Mostofi's file occurred before filing suit." He proffers that "the operative complaint alleges that [counsel] also signed thousands of other complaints filed the
Mr. Mostofi ascribes significance to this allegation based on his interpretation of a single case from the District of New Jersey, which has since been appealed to the Third Circuit, Bock v. Pressler & Pressler, 30 F.Supp.3d 283 (D.N.J.2014). In Bock, a law firm generated complaints for debt collection actions in a manner that "almost entirely involve[d] automation and non-attorney personnel." Id. at 287. The attorney of record in Mr. Bock's collection action conceded that he reviewed the complaint he filed against Bock for "no more than four seconds," and that Bock's complaint was one of 673 he reviewed that day. Id. at 305. In a case of first impression, the District of New Jersey held that it was a violation of the FDCPA to file a complaint under these circumstances, because such a filing implied meaningful attorney involvement when there was none. Id. at 306.
We have not adopted the reading of the FDCPA advanced in Bock, and we decline to do so today. But even if we had, Mr. Mostofi's allegations, taken as true, do not save his FDCPA claim, nor his state claims. The sum total of Mr. Mostofi's allegations about counsel for Midland Funding that have not already been precluded is his unsupported assertion that "[Counsel] signed thousands of other complaints filed the same month as the complaint filed against [Mr.] Mostofi." This is not conclusive of the question of meaningful attorney involvement. Counsel for Midland Funding could have worked every day that month at twelve hours a day, and turned out 2000 complaints, giving him a full eleven minutes per complaint on average, compared to Bock's four seconds. Counsel could have short-shrifted every other complaint filed that month and spent hours working on Mr. Mostofi's, and that would still be consistent with the facts Mr. Mostofi has alleged. On a Bock theory — which again, we have not adopted — it is still Mr. Mostofi's burden to allege actual facts that, if believed, would demonstrate a lack of meaningful attorney involvement in his case. Md. Rule 2-305 ("A pleading that sets forth a claim for relief ... shall contain a clear statement of the facts necessary to constitute a cause of action."). He has failed to do so. And this case is hardly rocket science — the appellees alleged, and proved in the collection case, that they acquired a credit-card debt that remained unpaid, and it did not require complicated pleadings or cutting-edge research to prepare the case for filing or trial.
Given that issue preclusion has barred the only potentially viable allegations against Lyons, Mr. Mostofi's contentions regarding dismissal for failure to serve are moot. He is barred from asserting his FDCPA and related state claims on the bases he has chosen, and dismissal with prejudice was proper.
Md. Rule 2-331(a).