Deitemyer v. Ryback

• Decision Date: 06 August 2019
• Docket Number: Civil Action No. ELH-18-2002
• Citation: Deitemyer v. Ryback, Civil Action No. ELH-18-2002 (D. Md. Aug 06, 2019)
• Parties: ALEXANDRA DEITEMYER Plaintiff v. STEVEN RYBACK, ESQ., et al. Defendants.
• Court: U.S. District Court — District of Maryland

ALEXANDRA DEITEMYERPlaintiff v. STEVEN RYBACK, ESQ., et al. Defendants.

Civil Action No. ELH-18-2002

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

August 6, 2019

MEMORANDUM OPINION

This case arises under of the Fair Debt Collection Practices Act ("FDCPA"), as amended, 15 U.S.C. § 1692 et seq.SeeECF 1-3(the "Complaint").PlaintiffAlexandra Deitemyer, who is self-represented, sued defendantsSteven Ryback, Esq.; Jonathan W. Bierer, Esq.; Bierer Law Group, P.A.("BLG")(collectively, the "Attorney Defendants"); Transworld Systems, Inc.("Transworld" or "TSI"), and 10 unnamed defendants, alleging multiple violations of the FDCPA.According to plaintiff, the Attorney Defendants violated 15 U.S.C. § 1692c(b) by communicating with third parties about the debt, without plaintiff's consent, ECF 1-3, ¶¶ 34-35, 38-42;they violated § 1692i(b), by bringing an unauthorized legal action against her, id.¶ 35; the Attorney Defendants violated § 1692e by misrepresenting the identity of plaintiff's "creditor", id.¶¶ 36, 51; and they violated § 1692g(a) by failing to provide plaintiff with a validation notice within five days of their first communication.Id.¶¶ 37, 51.Plaintiff also alleges that TSI is vicariously liable for the conduct of the Attorney Defendants.Id.¶¶ 48, 51.

The Attorney Defendants filed a "Motion To Dismiss, Or In The Alternative, Motion For Summary Judgment"(ECF 4), supported by a memorandum of law (ECF 4-2)(collectively, the "Motion") and several exhibits.SeeECF 4-3 to ECF 4-10.Transworld joined the Motion.ECF 6.Deitemyer opposes the Motion.ECF 8(the "Opposition").The Attorney Defendants have replied.ECF 9(the "Reply").

The Motion is fully briefed and no hearing is needed to resolve it.See Local Rule 105.6.For the reasons that follow, I shall grant the Motion in part and deny it in part.In particular, I shall grant the Motion as to plaintiff's claims under 15 U.S.C. § 1692c(b)and§ 1692i(b), and deny the Motion as to plaintiff's claims under 15 U.S.C. § 1692eand§ 1692g(a).

I.Factual Background¹

BLG is a professional association that maintains its principal office in Baltimore, Maryland.ECF 1-3, ¶ 5.Bierer, an attorney licensed in Maryland, is lead counsel for BLG.Id.¶ 6.Ryback is also an attorney licensed in Maryland, and he is an associate attorney for BLG.Id.¶ 7.Plaintiff alleges that Bierer and Ryback are "debt collectors" under § 1692a(6).Id.¶¶ 6-7.The Attorney Defendants are counsel for TSI, a corporation formed under the laws of California, with its principal office in Santa Rosa, California.Id.¶¶ 8, 32.Accordingly, plaintiff asserts that Transworld is vicariously liable for the conduct of the Attorney Defendants.Id.¶¶ 48, 54.

On August 24, 2005, Deitemyer executed a promissory note (the "Note") and credit agreement in the principal amount of $16,042.78 in connection with a student loan made to her by JP Morgan Chase Bank, N.A.("JP Morgan").Id.¶ 11.²Deitemyer alleges that an anonymous investor (the "Investor") invested in the Note, "became creditor," and appointed Transworld to service the Note.Id.¶ 15.

In turn, JP Morgan allegedly "lodged" the Note in an irrevocable trust ("Intermediate Trust") for the benefit of the Investor.Id.¶ 16.JP Morgan, "the investor, the custodian/services,and TSI, were privies to the Intermediate Trust having duties as trustees, co-trustees, their servicers or partners."Id.According to Deitemyer, if she defaulted on the Note, the Intermediate Trust would transfer the Note to a Delaware statutory trust called National Collegiate Student Loan Trust 2005-3 ("NCSLT").Id.¶¶ 13, 16.NCSLT "would then receive transfer and assignment of the defaulted debt solely to facilitate collection for the investor."Id.¶ 16.Plaintiff claims that the use of the Intermediate Trust provided JP Morgan and NCSLT with the benefits of "tax avoidance, bankruptcy remoteness, protection from creditors, and privacy[.]"Id.

Deitemyer defaulted on the Note on December 3, 2012.Id.¶ 36.She alleges that the Note was not "deposited into the NCSLT 2005-3 by any express Deposit and Sale Agreement or Pool Supplement (whether describing either past or future events), by any signature pages by the NCSLT 2005-3, or reflected in any documents uploaded to the SEC website, or any loan schedules, if any."Id.¶ 14.Yet, by unspecified means, the Intermediate Trust transferred the Note to NCSLT on February 6, 2017.Id.¶ 17.The right to collect on the debt for NCSLT was transferred to Transworld.Id.

On April 6, 2017, the Attorney Defendants, on behalf of their client, NCSLT, filed suit against Deitemyer in the District Court of Maryland for Montgomery County, alleging that she defaulted on her student loan obligations in the amount of $22,220.94.Id.¶ 35;seeNational Collegiate Student Loan Trust 2005-3 v. Alexandra Marino, CaseNo. D-111-CV-18-000575(Apr. 6, 2017);see alsoECF 4-9(Docket for Case No. D-111-CV-18-000575).

Plaintiff contends that on November 21, 2017, the Attorney Defendants sent her a "first communication," in which Dudley Turner, a Transworld employee, stated that "the debt balance of $22,220.94 [on the Note] was 'charged off'" on December 3, 2012.ECF 1-3, ¶ 36.Plaintiff claims that Turner falsely "purports to list, as proof of the NCSLT 2005-3's ownership of the debt,successive owners and intermediate transfers of the Note," while failing to "mention the transfer [of the debt] to the Intermediate Trust nor . . . whether he or TSI has information related to the debt that was not included" in his statement.Id.Further, Deitemyer alleges that after this initial communication, defendants did not provide her with a written notice regarding the debt, as required by the FDCPA.Id.¶ 37.

On January 11, 2018, the Attorney Defendants moved to transfer their suit to the District Court of Maryland for Frederick County.Id.¶ 38.In so doing, they allegedly conveyed information regarding plaintiff's debt.Id.

Then, on February 20, 2018, Deitemyer sent the Attorney Defendants a letter stating that "the NCSLT 2005-3 is not her creditor under § 1692a(4) and that their pleadings and their contents are susceptible to [suit under 15 U.S.C.] §§ 1692c and 1692e."Id.¶ 39;see alsoECF 4-6(Deitemyer's notice to BLG).With the letter, she also enclosed an invoice dated February 19, 2018, for $137,426.16 in damages.SeeECF 4-6at 4.

On February 21, 2018, the Attorney Defendants mailed Deitemyer a copy of their "Motion to Set on Affidavit Trial Docket."ECF 1-3, ¶ 40.In response, on March 1, 2018, Deitemyer filed a "Notice of Intention to Defend."Id.;seeECF 4-9.On April 20, 2018, the Attorney Defendants moved for sanctions and entry of a default judgment against plaintiff regarding her debt.ECF 1-3, ¶ 41.The underlying litigation proceeded to trial in State court on June 11, 2018.Id. at 2, 5.However, plaintiff failed to appear, and judgment was entered in favor of NCSLT, in the amount of $22,477.16.Id.;ECF 4-9at 2.

II.Standard of Review

A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6).In re Birmingham, 846 F.3d 88, 92(4th Cir.2017);Goines v. Valley Cmty.Servs. Bd., 822 F.3d 159, 165-66(4th Cir.2016);McBurney v. Cuccinelli, 616 F.3d 393, 408(4th Cir.2010), aff'd sub nom., McBurney v. Young, 569 U.S. 221(2013);Edwards v. City of Goldsboro, 178 F.3d 231, 243(4th Cir.1999).A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law "to state a claim upon which relief can be granted."

Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2).That rule provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief."The purpose of the rule is to provide the defendants with "fair notice" of the claims and the "grounds" for entitlement to relief.Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56(2007).

To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face."Twombly, 550 U.S. at 570;seeAshcroft v. Iqbal, 556 U.S. 662, 684(2009)(citation omitted)("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . .");see alsoParadise Wire & Cable Defined Benefit Pension Plan v. Weil, 2019 WL 1105179, at *3(4th Cir.Mar. 11, 2019);Willner v. Dimon, 849 F.3d 93, 112(4th Cir.2017).To be sure, a plaintiff need not include "detailed factual allegations" in order to satisfy Rule 8(a)(2).Twombly, 550 U.S. at 555.Moreover, federal pleading rules "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted."Johnson v. City of Shelby, Miss., 574 U.S. 10, ___, 135 S. Ct. 346, 346(2014)(per curiam).But, mere "'naked assertions' of wrongdoing" are generally insufficient to state a claim for relief.Francis v. Giacomelli, 588 F.3d 186, 193(4th Cir.2009)(citation omitted).

In other words, the rule demands more than bald accusations or mere speculation.Twombly, 550 U.S. at 555;seePainter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350(4th Cir.2013).If a complaint provides no more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action," it is insufficient.Twombly, 550 U.S. at 555."[A]n unadorned, the-defendant-unlawfully-harmed-me accusation" does not state a plausible claim of relief.Iqbal, 556 U.S. at 678.Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth "enough factual matter (taken as true) to suggest" a cognizable cause of action, "even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely."Twombly, 550 U.S. at 556(...