PAUL W. GRIMM, District Judge.
This Memorandum Opinion resolves three related filings:
(2) Defendant Shapiro Brown & Alt, LLP's ("SBA") Motion to Dismiss, ECF No. 20, and supporting Memorandum ("SBA's Mem."), ECF 20-1; Plaintiff's Response ("Pl.'s SBA Opp'n"), ECF No. 23; and SBA's Reply, ECF No. 27; and
(3) Plaintiff's Motion to Strike SBA's Reply or, in the Alternative, to File a Surreply, ECF No. 28.
A hearing is unnecessary in this case because the issues adequately are presented on the filings. See Loc. R. 105.6. For the reasons explained below, Defendants' motions to dismiss both will be GRANTED. Plaintiff's Motion to Strike or, in the Alternative, to File a Surreply will be DENIED.
For purposes of considering Defendants' motions, this Court accepts the facts that Plaintiff alleged in his pro se Complaint as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir.2011). In February 2006, Plaintiff purchased his property after executing a promissory note (the "Note") for a mortgage from Nationwide Mortgage Services, LLC, secured by a Deed of Trust. Am. Compl. ¶ 6, ECF No. 15. The Note provides: "I understand that Lender may transfer this Note." Note 1, ¶ 1, SBA's Mem. Ex. C, ECF No. 20-4.
Id. at 4, ¶ 10.
The Note was transferred from Nationwide Mortgage Services, LLC to Ohio Savings Bank, Am. Compl. ¶ 7, which changed its name in 2007 to AmTrust Bank, see History of (FDIC #: 29776) in Cleveland, OH, Fed. Deposit Ins. Corp. (Dec. 4, 2009), http://research.fdic.gov/bankfind/detail. html?bank=29776&na.
When Plaintiff first received requests from NYCB for payments on the Note, he asked for documentation establishing NYCB's right to collect. Am. Compl. ¶ 9. NYCB responded by providing a copy of the Note, endorsed to Ohio Savings Bank. See id. ¶ 10. Plaintiff did not consider this sufficient evidence of NYCB's right to collect and refused to make payments. See id. ¶¶ 10-11.
When SBA contacted Plaintiff with regard to the foreclosure, Plaintiff requested that SBA also provide proof of its right to foreclose on the mortgage. Id. ¶ 16. SBA provided a copy of the Note endorsed to Ohio Savings Bank. Id. In May 2012, SBA began foreclosure proceedings by serving Plaintiff with an Order to Docket by posting it on the property on May 27, 2012 and mailing it to Plaintiff on May 29, 2012. Id. ¶ 17. The Order to Docket attached a copy of the endorsed Note, authenticated by an affidavit. Id. ¶ 18.
After receiving notice of the foreclosure, Plaintiff requested from SBA "documentation [demonstrating] that NYCB had authority to appoint [SBA] to initiate the foreclosure action." Id. ¶ 22. This time, the Note sent by SBA contained a second endorsement, in which a single signatory endorsed the mortgage to the FDIC as receiver for Ohio Savings Bank and then from the FDIC to NYCB. Id. ¶ 23. According to Plaintiff, the signature on this second endorsement varied significantly from the signature purporting to be from the same person on the first endorsement and, therefore, the signatures "were perjured." Id. ¶ 24. Plaintiff then requested to inspect the original Note; having done so, Plaintiff alleges that the Note was "markedly different" because the related endorsement contained no handwritten alterations. Id. ¶ 28-29.
Plaintiff filed his original pro se Complaint in this Court on May 30, 2013. Compl., ECF No. 1. Following NYCB's first Motion to Dismiss, ECF No. 11, Plaintiff filed an Amended Complaint, ECF No. 15, pursuant to Fed.R.Civ.P. 15(a)(1)(B). Plaintiff's three-count Amended Complaint alleges (1) a claim against SBA for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692f(6), 1692e(5); (2) claims against SBA and N.Y. CB for violations of the Maryland Consumer Debt Collection Act ("MCDCA"), Md.Code Ann., Com. Law § 14-202(8); and (3) a claim against NYCB for violations of the Maryland Consumer Protection Act ("MCPA"), Com. Law § 13-301(14)(iii).
NYCB and SBA filed motions to dismiss on August 15, 2013 and August 28, 2013, respectively. Plaintiff timely filed oppositions. NYCB filed its Reply on September 17, 2013 and SBA filed its Reply four months later, on January 23, 2014. Plaintiff then filed a Motion to Strike SBA's Reply or, in the alternative, to File a Surreply. The issues are presented adequately in Plaintiff's motion and it is unnecessary to wait for SBA's response.
Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it fails to state a claim upon which relief can be granted." Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D.Md. Dec. 13, 2012). This Rule's purpose "`is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'" Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006)). To that end, the Court bears in mind the requirements of Rule 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R.Civ.P. 8(a)(2), and must state "a plausible claim for relief," as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
That said, "`factual allegations must be enough to raise a right to relief above a speculative level.'" Proctor v. Metro. Money Store Corp., 645 F.Supp.2d 464, 472-73 (D.Md.2009) (quoting Twombly, 550 U.S. at 545, 127 S.Ct. 1955). Particularly, the Court is not required to accept as true "a legal conclusion couched as a factual allegation," Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), or "allegations that are merely conclusory, unwarranted deductions of fact or unreasonable inferences," Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.2002) (citation omitted). Additionally, a plaintiff fails to state a claim where the allegations on the face of the complaint show that an affirmative defense would bar any recovery. Jones v. Bock, 549 U.S. 199, 214-15, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (citing Fed.R.Civ.P. 8(c)); see Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996) (noting that dismissal is proper "when the face of the complaint clearly reveals the existence of a meritorious affirmative defense.").
Plaintiff is proceeding pro se and his complaint is to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, liberal construction does not absolve Plaintiff from pleading a plausible claim. See Holsey v. Collins, 90 F.R.D. 122, 128 (D.Md.1981) (citing Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir.1977)). As stated by the Fourth Circuit,
Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at *1 (4th Cir.1992) (per curiam).
"Matters outside of the pleadings are generally not considered in ruling on a Rule 12 motion." Williams v. Branker, 462 Fed.Appx. 348, 352 (4th Cir.2012). However, "when a defendant attaches a document to its motion to dismiss, `a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiff[] do[es] not challenge its authenticity.'" Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.2004) (quoting Phillips v. LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir.1999) (emendations in original)). In the Fourth Circuit, documents referenced and relied upon by the plaintiff can be considered without converting a motion to dismiss into a motion for summary judgment. See Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007); HQM, Ltd. v. Hatfield, 71 F.Supp.2d 500, 502 (D.Md.1999).
Plaintiff moves to strike SBA's Reply on the grounds that SBA improperly (1) added additional facts to explain the transfer of the mortgage and (2) argued that the allegedly perjured endorsements are not material. Mot. to Strike 1-2 (quoting SBA's Reply 3). Arguments raised for the first time in reply generally should not be considered without affording the opposing party an opportunity to respond, see Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 512 n. 8 (D.Md.2009), but none of the material Plaintiff refers to is new. The explanation of the transfer of the Note provided in SBA's Reply is the same as in SBA's opening memorandum. Compare SBA's Reply 1-2, 4-6, with SBA's Mem. 2-3, 5, 7, 11. Additionally, SBA's materiality argument is raised extensively in its opening memorandum. See SBA's Mem. 11-12 ("Plaintiff's allegations of missing endorsements are not material, and do not involve a false representation or deceptive means to collect a debt."). Therefore, Plaintiff's Motion to Strike or, in the Alternative, to File a Surreply, will be DENIED.
Plaintiff's sole federal claim is brought against Defendant SBA for violations of the FDCPA, 15 U.S.C. §§ 1692f(6), 1692e(5). Section 1692f(6) prohibits "[t]aking or threatening to take any nonjudicial action to effect dispossession or disablement of property if — (A) there is no present right to possession of the property claimed as collateral through an enforceable security interest." Section 1692e(5) prohibits, in connection with debt collection, "[t]he threat to take any action that cannot legally be taken or that is not intended to be taken."
SBA argues that Plaintiff's claims are time-barred, contending that the first communication of SBA's intent to collect on the Note triggered the statute of limitations. See SBA's Mem. 8-9. FDCPA claims must be brought "within one year from the date on which the violation occurs." 15 U.S.C. § 1692k. Citing the Amended Complaint, SBA argues that Plaintiff corresponded with Defendants regarding the potential foreclosure before the foreclosure action was filed on May 15, 2012. SBA's Mem. 8-9. Therefore, according to SBA, any violation occurred prior to May 15, 2012, more than one year before Plaintiff filed his original Complaint on May 30, 2013, or at the latest, when the foreclosure complaint was served on May 29, 2012. Id.; SBA's Reply 8. In opposition, Plaintiff argues that the statute of limitations was triggered when he received the state foreclosure complaint, which he represents was not until after May 30, 2012. Pl.'s SBA Opp'n 5-6.
Because Plaintiff's complaint clearly establishes the merit of SBA's limitations defense, dismissal on that ground is proper. See Jones, 549 U.S. at 215, 127 S.Ct. 910. Although the statute of limitations may have begun to run when Plaintiff received notice of NYCB's intent to collect on the Note, the latest it was triggered was when Plaintiff was served with the foreclosure complaint on May 29, 2012. In the very case Plaintiff cites to support his position, this Court held that the date of filing or the date of service could be proper triggers for the accrual of an FDCPA claim. Winemiller v. Worldwide Asset Purchasing, LLC, No. RDB-09-2487, 2011 WL 1457749, at *3 (D.Md. Apr. 15, 2011) (citing Martin v. Sessoms & Rogers, P.A., No. 5:09-CV-480-D, 2010 WL 3200015, at *3 (E.D.N.C. Aug. 12, 2010)). Under Maryland
Plaintiff acknowledges that he was served and that an affidavit of service was filed. Am. Compl. ¶ 17. The affidavit states that notice was posted on May 27, 2012 and sent by certified mail on May 29, 2012. Id. In neither his Amended Complaint nor his Opposition to SBA's Motion to Dismiss does Plaintiff challenge the sufficiency of the affidavit or of service of the foreclosure complaint. Therefore, service was complete on May 29, 2012, more than one year before Plaintiff commenced this action, without regard to whether Plaintiff had received the notice yet. See Md. Rule 14-209(b); Dow v. Jones, 232 F.Supp.2d 491, 497 (D.Md.2002) (holding that service was presumed valid where the defendant did not demonstrate a rule violation, even where the affidavit contained a technical error). Consequently, Plaintiff's FDCPA claim must be dismissed. See Jones, 549 U.S. at 215, 127 S.Ct. 910.
Regardless of when he was served with the foreclosure action, Plaintiff's claims also would be time-barred for the reasons explained in McGhee v. JP Morgan Chase Bank, N.A., No. DKC-12-3072, 2013 WL 4495797, at *7 n. 10 (D.Md. Aug. 20, 2013). I agree with the rule articulated by Chief Judge Chasanow of this Court, that "the limitations period for FDCPA claims commences `from the date of the first violation, and subsequent violations of the same type do not restart the limitations period.'" Id. (quoting Fontell v. Hassett, 870 F.Supp.2d 395, 404 (D.Md. 2012)); see Alston v. Cavalry Portfolio Servs., LLC, No. AW-12-3589, 2013 WL 665036, at *3 (D.Md. Feb. 22, 2013) (same); Martin v. Sessoms & Rogers, P.A., No. 5:09-CV-480-D, 2010 WL 3200015, at *3-4 (E.D.N.C. Aug. 12, 2010) (citing cases) (same).
Here, the alleged FDCPA violations occurred when SBA "threaten[ed] to take any nonjudicial action to effect dispossession or disablement of property," 15 U.S.C. § 1692f(6), or "threat[ened] to take any action that cannot legally be taken," § 1692e(5). Accepting Plaintiff's facts as true, the initial alleged violation occurred when SBA threatened to foreclose on Plaintiff's property prior to filing the foreclosure action on May 15, 2012,
Plaintiff argues that, in similar cases, some other judges in this district and elsewhere seem to have reached the opposite conclusion. According to Plaintiff, those cases found that subsequent violations based on the same underlying debt should be viewed as separate violations of the FDCPA for statute of limitations purposes. See, e.g., Akalwadi v. Risk Mgmt. Alts., Inc., 336 F.Supp.2d 492, 501 (D.Md.2004) (viewing separate communications as independent FDCPA violations); Boccone v. Am. Express Co., No. RDB-05-3436, 2007 WL 2914909, at *4 (D.Md. Oct. 4, 2007) (same); Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360 (S.D.Fla.2000) (same); Young v. Thieblot Ryan, P.A., No. ELH-11-01562, 2012 WL 6698632, at *5 n. 10 (D.Md. Dec. 21, 2012) (using the date of the latest related communication for statute of limitations purposes). In an unpublished, per curiam opinion, the Sixth Circuit also embraced this view. Purnell v. Arrow Fin. Servs., LLC, 303 Fed.Appx. 297, 301-03 (6th Cir.2008). Many cases adopting this alternative holding are inapplicable because they do not involve true continuing violations. For example, in Purnell, the debt collector continued to report the plaintiff's debt to Equifax and each report was viewed as a separate violation of the FDCPA. See id. at 303-04. The Sixth Circuit held that "each `failure to cease' collection activity without having validated the debt ... presents a discrete claim for violation of the FDCPA." Id. at 304 (emphasis added). That holding does not apply where the communications are continued efforts to validate the same debt.
I have considered carefully whether this decision comports with the recent Fourth Circuit holding in Clark v. Absolute Collection Serv., Inc., 741 F.3d 487 (4th Cir.2014) (per curiam). The Fourth Circuit reversed the district court's holding that a debt collector could require that the debtor challenge the validity of the debt in writing as opposed to challenging it verbally. Id. at 488-89. The Court held, applying ordinary methods of statutory construction, that Congress's inclusion of a writing requirement in some sections of the FDCPA and omission in others suggested that the omission was intentional. Id. at 491. Clark is inapplicable because this case involves direct statutory interpretation rather than comparative statutory construction.
Contrary to Plaintiff's argument, this decision is not inconsistent with the Congressional purpose of the law. "Congress enacted the FDCPA with the goal of eliminating abusive, deceptive, and unfair debt collection practices." Clark, 741 F.3d at 490 (citing 15 U.S.C. § 1692(e)). But Congress imposed a restrictive statute of limitations that courts are bound to apply as a jurisdictional matter. See Brooks-McCollum v. Aspen Prop. Mgmt. Co., 551 Fed. Appx. 677, 679-80, 2014 WL 57914, at *1 (4th Cir. Jan. 8, 2014). Declining to restart the statute of limitations for related subsequent communications is consistent with the statutory text, Fourth Circuit precedent, and even the legislative history, which suggests that the purpose of the FDCPA is to be effectuated "without imposing unnecessary restrictions on ethical debt collectors." S.Rep. No. 95-382, at 1-2 (1977); see H.R.Rep. No. 95-131, at 8 (1977) ("It has been suggested by some that passage of this legislation will assist people who are trying to avoid paying honest debts or, as some have chosen to call them, `deadbeats.' The committee emphatically denies that this is the case.").
Plaintiff also alleges an MCDCA claim against both SBA and NYCB. Com. Law § 14-202(8) provides that a debt collector may not "[c]laim, attempt, or threaten to enforce a right with knowledge that the right does not exist."
NYCB and SBA move to dismiss on the ground that Plaintiff's factual allegations are insufficient to establish a violation of the MCDCA. NYCB's Mem. 5-6; SBA's Mem. 16-17.
The MCDCA requires that "Defendants acted with knowledge as to the invalidity of the debt." Stewart v. Bierman, 859 F.Supp.2d 754, 759 (D.Md.2012) (quoting United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir.1996) (internal quotation omitted)), aff'd sub nom. Lembach v. Bierman, 528 Fed.Appx. 297 (4th Cir.2013) (emphasis added). Plaintiff's Amended Complaint sufficiently alleges that Defendants were not holders, see Am. Compl. ¶¶ 19-21, but not that Defendants knew, or were deliberately indifferent to, the fact that they did not possess the right to enforce the Note.
Sterling v. Ourisman Chevrolet of Bowie Inc., 943 F.Supp.2d 577, 596 (D.Md.2013); see Com. Law § 3-301 (providing avenues for holders, non-holders, persons not in possession, and wrongful possessors to enforce otherwise valid instruments). Therefore, Plaintiff's MCDCA claim must be dismissed because his allegations attack only the endorsements to the Note and do
Plaintiff alleges violations of the MCPA by NYCB only. "A consumer bringing a private action under § 13-408 must allege (1) an unfair or deceptive practice or misrepresentation that is (2) relied upon, and (3) causes them actual injury." Stewart, 859 F.Supp.2d at 768 (citing Lloyd v. Gen. Motors Corp., 397 Md. 108, 916 A.2d 257, 277 (2007)); see also Bank of Am. v. Jill P. Mitchell Living Tr., 822 F.Supp.2d 505, 532 (D.Md.2011) ("Consumers must prove that they relied on the misrepresentation in question to prevail on a damages action under the MCPA." (citations omitted)).
In moving to dismiss, NYCB argues that Plaintiff failed to allege reliance, material impact, and harm.
Defendants seek dismissal of the Amended Complaint with prejudice. See NYCB's Mem. 7; SBA's Mem. 18. "The determination whether to dismiss with or without prejudice under Rule 12(b)(6) is within the discretion of the district court." 180s, Inc. v. Gordini U.S.A., Inc., 602 F.Supp.2d 635, 638-39 (D.Md.2009) (quoting Carter v. Norfolk Cmty. Hosp. Ass'n, 761 F.2d 970, 974 (4th Cir.1985) (internal quotation marks omitted)). Plaintiff twice has failed to meet the pleading standards, see N. Carolina v. McGuirt, 114 Fed.Appx. 555, 559 (4th Cir.2004) (considering whether the plaintiff has persisted in failing to comply with Rule 8(a)), and already was given an opportunity to amend. Future amendments would be futile because no additional facts could defeat a motion to dismiss Plaintiff's time-barred claims. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1139 (4th Cir.1993) ("Appropriate reasons to prohibit further amendments of a complaint include ... futility of amendment." (internal quotation marks omitted)). Therefore, Plaintiff's claims warrant dismissal with prejudice.
For the reasons stated above, Plaintiff's Motion to Strike will be DENIED and both NYCB's Motion to Dismiss and SBA's Motion to Dismiss will be GRANTED. A separate order shall issue.
For the reasons explained in the Memorandum Opinion issued this same date, it is, this 20th day of February 2014, by the
1. Defendant New York Community Bank's Motion to Dismiss, ECF No. 17, is GRANTED;
2. Defendant Shapiro Brown & Alt, LLP's Motion to Dismiss, ECF No. 20, is GRANTED;
3. Plaintiff Malik Bey's Motion to Strike SBA's Reply or, in the Alternative, to File a Surreply, ECF No. 28, is DENIED;
4. Plaintiff's Amended Complaint, ECF No. 15, is DISMISSED WITH PREJUDICE; and
5. The Clerk SHALL CLOSE this case.
Plaintiff filed this FDCPA action against the bank that attempted to collect on his defaulted mortgage and the bank's law firm retained to assist in the foreclosure. In addition to the FDCPA count, Plaintiff alleges violations of two Maryland consumer protection statutes. Importantly, Plaintiff does not (1) challenge that his mortgage is in default, (2) address the argument that Defendants are entitled to collect on his defaulted mortgage as non-holders of the note, or (3) plausibly challenge the true chain of title, which is made clear by the endorsements of the mortgage note provided by Defendants, as supplemented by public records. On February 20, 2014, I entered a Memorandum Opinion
Neither Rule 59(e), nor Local Rule 105.10 (providing the deadline for a motion for reconsideration), contains a standard for the application of Rule 59(e) and the Fourth Circuit has not identified such a standard. Other courts have, and their guidance is instructive. In the widely cited case of Above the Belt, Inc. v. Bohannan Roofing, Inc., 99 F.R.D. 99 (E.D.Va. 1983), the court noted there are "circumstances when a motion to reconsider may perform a valuable function," but added that it was improper to use such a motion to "ask the Court to rethink what the Court had already thought through — rightly or wrongly." Id. at 101. The court concluded:
Id. Other courts that have considered this issue are in accord. See, e.g., Redner's Markets, Inc. v. Joppatowne G.P. Ltd.
The logic of these cases is apparent. When a party files a motion with the court, there is an obligation to ensure it is factually accurate, is supported by citation to legal authority, and raises all arguments that reasonably may be made through the exercise of due diligence. Once a court has issued its ruling, unless one of the specific grounds noted above can be shown, that should end the matter, at least until appeal. Were it otherwise, there would be no end to motions practice, each one becoming nothing more than the latest installment in a potentially endless serial that would exhaust the resources of the parties and the court — not to mention their patience. Hindsight being perfect, it requires no great skill for a party to construct a new argument to support a position previously rejected by the court, especially once the court has spelled out its reasoning in a memorandum opinion. It is hard to imagine a less efficient means to expedite the resolution of cases than to allow the parties unlimited opportunities to seek the same relief simply by conjuring up a new reason to ask for it or a new disagreement with the findings of the court. In the relatively rare instances when there has been an intervening change in the controlling law, or the court has made a clear error in its initial ruling, or new facts have surfaced, that could not have been discovered through the exercise of due diligence before the motion was filed, then a request for reconsideration can perform a valuable function, allowing the court quickly to correct a clear error or injustice, and "sparing the parties and the appellate courts the burden of unnecessary appellate proceedings." Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (quoting Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir.1995)).
Having reviewed carefully Plaintiff's Motion and my Memorandum Opinion, I find that he has failed to make any of the showings necessary for me to reconsider my previous rulings. Although pro se, it is clear from the filings that Plaintiff either has legal training or is receiving assistance from someone with legal training. He evidences a sophisticated understanding of the law infrequently shown by self-represented litigants. Notwithstanding, his submission constitutes a classic example of seeking a "second bite at the apple," which, if allowed, would defeat the concept of judicial finality and would transform motions practice into a never-ending cycle of intra-court review. In Plaintiff's Motion, he proceeds section by section
For the reasons explained above, Plaintiff's Rule 59(e) Motion will be DENIED by separate order.
