Bender v. Elmore & Throop, P.C.

Decision Date30 March 2021
Docket NumberCivil Action No. CCB-18-979
Citation530 F.Supp.3d 566
Parties Robert L. BENDER and Deborah A. Bender v. ELMORE & THROOP, P.C.
CourtU.S. District Court — District of Maryland

E. David Hoskins, Steven B. Isbister, The Law Offices of E. David Hoskins LLC, Baltimore, MD, for Robert L. Bender, Deborah A. Bender.

John S. Vander Woude, Nathan Joseph Price, Eccleston and Wolf PC Baltimore Washington Law Cntr., Hanover, MD, for Elmore & Throop, P.C.


Catherine C. Blake, U.S. District Court Judge

This is an action brought under the Fair Debt Collection Practices Act ("FDCPA") concerning defendant Elmore & Throop, P.C. ("Elmore")’s efforts to collect supposedly outstanding assessment payments due to the Country Walk Community Association ("the HOA") to which the plaintiffs, Robert L. Bender and Deborah A. Bender ("the Benders"), belong by virtue of their ownership of a residential property located within the HOA. The court previously dismissed this action after concluding that it was barred by the FDCPA's one-year statute of limitations. See Bender v. Elmore & Throop, P.C. ("Bender I") , 375 F. Supp. 3d 632, 638 (D. Md. 2019). Following the United States Court of Appeals for the Fourth Circuit's decision that the Benders have alleged at least two potential violations of the FDCPA that are not time-barred, the dismissal was vacated and the case was remanded to this court. See Bender v. Elmore & Throop, P.C. ("Bender II") , 963 F.3d 403, 408 (4th Cir. 2020). Elmore renewed its earlier motion to dismiss or, in the alternative, for summary judgment. (ECF 27).1 The motion is fully briefed and ready for resolution without a hearing. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, the motion will be granted in part and denied in part.


For purposes of this motion, the court will give an abbreviated recitation of the facts relevant to the dispute. The court refers to its previous opinion for a further recitation of the facts of this case. See Bender I, 375 F. Supp. 3d at 633–35.

The HOA is governed by the Amended and Restated Declaration of Covenants, Conditions and Restrictions ("Declaration"). As relevant to this case, Article IV, Section 1 of the Declaration provides for annual and special assessments to be levied by the HOA. (ECF 12-4, Decl., Art. IV § 1). "The annual and special assessments, together with interest, costs and reasonable attorney's fees, shall be a charge on the Lot[.] ... Each such assessment, together with interest, costs and reasonable attorney's fees, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due." (Id. ). The due dates for the assessments "shall be established by the Board of Directors." (Id. § 10). Article IV, Section 11 details the effect of nonpayment of the assessments and the remedies of the HOA.

If an Owner does not pay an assessment as it becomes due, then the Association may bring an action at law against said Owner. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at a rate of twelve percent (12%) per annum or at other such rate, not exceeding that charged by Harford County, Maryland for delinquent real estate tax payments, as the Board of Directors may establish from time to time.

(Id. § 11). Lot owners are also "subject to a late fee equal to $10.00 per month for each month that the assessment remains unpaid." (Id. ). Should the HOA bring an action against an owner over unpaid assessments, "the Owner will also be obligated to pay the [HOA]’s reasonable attorneys’ fees." (Id. ).

Elmore has represented the HOA since 2006 as its general legal counsel in matters relating to association administration, management, operation and protection. (ECF 12-3, E. Throop Aff. ¶ 3; ECF 13-15, Fee Agreement at 1). The Fee Agreement between Elmore and the HOA contemplates that Elmore will be paid for services involved in the collection of delinquent assessments. Although "[c]osts and expenses incurred by [Elmore] will be billed to [the HOA]," those costs and expenses "will be assessed against the delinquent account." (ECF 13-15, Fee Agreement at 2).

On April 16, 2016, the Benders found a letter from Elmore, dated February 26, 2016, taped to their door, claiming that they had failed to pay $77.09 in assessment charges that had accrued from October 1, 2015, through February 29, 2016, and stating that they were now obligated to pay $1,048.60 (or $1,096.52) to satisfy their debt and to cover fees, costs, and attorneys’ fees incurred by their delinquency. (ECF 13-1, R. Bender Decl. ¶ 9; ECF 13-2, Feb. 26, 2016 Ltr.). Between April and May 2016, the Benders and Elmore exchanged correspondence in which the Benders denied having made late payments and Elmore persisted in maintaining that late fees, costs, interest, and attorneys’ fees were owed. (ECF 13-1, R. Bender Decl. ¶¶ 12–20; ECFs 13-3–13-6). On May 18, 2016, following one of Elmore's demands for payment, the Benders delivered a letter to Elmore requesting that it cease communicating with them about the debt. (ECF 13-1, R. Bender Decl. ¶ 28; ECF 13-7, May 18, 2016 Ltr.).

In January 2018, after having been banned from the property at which HOA meetings were normally held,2 Mr. Bender commenced an effort to attend the 2018 annual meeting of the HOA by sending a letter to its Board of Directors requesting that either the meeting's location be changed or its date rescheduled for a time after his ban would expire and asking that someone call him to discuss his request. (ECF 13-1, R. Bender Decl. ¶¶ 33–34; ECF 12-7, Jan. 16, 2018 Ltr.). Shortly after sending the letter, Mr. Bender received a voicemail from Ellen Throop (of defendant Elmore & Throop, P.C.), stating that she was calling to discuss his letter. (ECF 13-1, R. Bender Decl. ¶ 36). Mr. Bender returned the call. Initially, Mr. Bender and Ms. Throop discussed Mr. Bender's request to attend the annual meeting, with Ms. Throop asserting that he did not have the right to personally attend and Mr. Bender contending that a Maryland statute gave him the absolute right to be present in person. (Id. ¶¶ 37–38). The conversation apparently became increasingly unproductive; Mr. Bender acknowledges that they were "g[etting] nowhere," and the two began to disagree over the reasons why Mr. Bender had been banned in the first place. (Id. ¶ 38). Ms. Throop asserted that Mr. Bender's behavior toward Frederick Traut was the reason, and Mr. Bender disputed this. (Id. ¶ 39). Eventually, Ms. Throop remarked, "[W]ell, this whole thing would not have happened if you would just pay your bills." (Id. ¶ 40). In response to this statement, Mr. Bender insisted they were current, prompting Ms. Throop to read over information in the Benders’ updated account ledger and to inform Mr. Bender that there was now a lien against the property. (Id. ¶¶ 41–44). Ms. Throop instead asserts that "Mr. Bender changed the subject of the conversation by contesting the reason for his ban, and denying that his account for assessments was delinquent." (ECF 12-3, E. Throop Decl. ¶ 8).

After this conversation, on February 6, 2018, the Benders received an account verification letter listing the outstanding debt, which states that it was "sent to provide you with a verification of your account as you requested." (ECF 12-5, Feb. 6, 2018 Ltr. at 1). The Benders deny requesting such verification. (R. Bender Decl. ¶ 49). The letter states a balance owed of $1,487.63, and includes an attachment titled "Account Ledger," which breaks down the balance owed into several categories, including assessments ($37.25), late fees ($133.00), interest (at a rate of six percent) ($50.48), "other," ($287.00), attorneys’ fees ($570.00), and lien costs ($409.90). (ECF 12-5, Account Ledger).


Elmore moves to dismiss this case for failure to state a claim under Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56. A court considers only the pleadings when deciding a Rule 12(b)(6) motion. Where the parties present matters outside of the pleadings and the court considers those matters, as here, the motion is treated as one for summary judgment. See Fed. R. Civ. P. 12(d) ; Gadsby by Gadsby v. Grasmick , 109 F.3d 940, 949 (4th Cir. 1997) ; Paukstis v. Kenwood Golf & Country Club, Inc. , 241 F. Supp. 2d 551, 556 (D. Md. 2003). "There are two requirements for a proper Rule 12(d) conversion." Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore , 721 F.3d 264, 281 (4th Cir. 2013). First, all parties must "be given some indication by the court that it is treating the 12(b)(6) motion as a motion for summary judgment," which can be satisfied when a party is "aware that material outside the pleadings is before the court." Gay v. Wall , 761 F.2d 175, 177 (4th Cir. 1985) ; see also Laughlin v. Metro. Washington Airports Auth. , 149 F.3d 253, 261 (4th Cir. 1998) (commenting that a court has no obligation "to notify parties of the obvious"). "[T]he second requirement for proper conversion of a Rule 12(b)(6) motion is that the parties first ‘be afforded a reasonable opportunity for discovery.’ " Greater Baltimore , 721 F.3d at 281.

The Benders have adequate notice that Elmore's motion might be treated as one for summary judgment. The motion's alternative caption and attached materials are in themselves sufficient indicia. See Laughlin , 149 F.3d at 260-61. Moreover, the Benders refer to the motion in their opposition brief as one for summary judgment and rely on additional documentary exhibits. If the Benders had thought that they needed additional evidence to oppose summary judgment, Rule 56(d), which they have not invoked, afforded them the opportunity to seek further discovery through an affidavit. See Fed. R. Civ. P. 56(d) ; see also Greater Baltimore , 721 F.3d at 281 ("[The defendant] took ‘the proper course’ when it filed the Rule 56 ([d...

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