Richardson v. Rosenberg & Assocs. LLC
| Decision Date | 27 February 2014 |
| Docket Number | CIVIL NO.: WDQ-13-0822 |
| Court | U.S. District Court — District of Maryland |
| Parties | KEVIN RICHARDSON, Plaintiff, v. ROSENBERG & ASSOCIATES LLC, et al., Defendants. |
Kevin Richardson pro se sued Rosenberg & Associates LLC ("R&A"), and Nationstar Mortgage LLC ("Nationstar"), (collectively "the Defendants"), for violations of the Fair Debt Collection Practices Act ("FDCPA"),1 the Truth in Lending Act ("TILA"),2 the Real Estate Procedures Act ("RESPA"),3 the Fair Credit Reporting Act ("FCRA"),4 the Maryland Consumer Debt Collection Act ("MCDCA"),5 and the Maryland Consumer Protection Act ("MCPA").6 Pending are R&A's and Nationstar's motions todismiss, and Richardson's motion for leave to amend. For the following reasons, the motions to dismiss will be granted in part and denied in part. Richardson's motion for leave to amend will be granted.
On May 17, 2012, Richardson received a letter from R&A, "attempting to collect an alleged debt" in the amount of $339,835.95 for Bank of America. ECF No. 1 ¶ 9. On June 11, 2012, Richardson sent a letter by certified mail to R&A disputing the debt and asking for validation of the claim. Id. ¶ 10. The letter was received on June 13, 2012, and R&A did not respond. Id. On August 2, 2012, Richardson received a letter from R&A, "attempting to collect on the same alleged debt" in the amount of $336,955.55 for Nationstar. Id. ¶ 11. On August28, 2012, Richardson sent another letter by certified mail to R&A disputing the debt and asking for validation of the claim. Id. ¶ 14. The letter was received on August 30, 2012. Id.
On August 28, 2012, Richardson also sent a letter to Nationstar at an address obtained from the internet, disputing the alleged debt and asking for validation. Id. ¶ 15. The letter was received on September 4, 2012. Id. On September 10, 2012, Richardson received a copy of a Deed of Trust from R&A. Id. ¶ 16. On September 18, 2012, Richardson received a letter from R&A itemizing the amount due and identifying Nationstar as the beneficiary of the Deed of Trust. See ECF No. 19, Ex. I. The letter includes a discrepancy in the total amount allegedly due on the debt.8 Richardson did not receive a notice from Nationstar about the transfer of servicing rights of the alleged debt. ECF No. 1 ¶ 18. On September 28, 2012, Richardson sent a letter to R&A requesting the mailing address for Nationstar. Id. ¶ 19. On October 15, 2012, Richardson received a response to this letter "from an unknown entity, Commonwealth Trustees LLC." Id. ¶ 19. The address provided for Nationstar was the one Richardson had previously used. Id.
On October 19, 2012, Richardson sent a letter by certified mail to Nationstar requesting various information.9 The letter was received on October 22, 2012; Nationstar did not respond. ECF No. 1 ¶ 21. On October 22, 2012, Richardson learned that "Nationstar was reporting negative information on his three major credit reports." Id. ¶ 22. Richardson did not receive notice of the negative information from Nationstar. Id. ¶ 25. On November 5, 2012, Richardson sent a second "QWR" by certified mail to Nationstar at the address designated to receive QWRs.10 The letter was received on November 9, 2012; Nationstar did not respond. Id. ¶ 27. On November 12, 2012, Richardson learned that an assignment of a Deed of Trust concerning the property had been recorded in the Queen Anne's County land records. Id. ¶ 28. The assignment was dated November 7, 2012. Id. Richardson did not receive any notice of the assignment. Id. ¶ 30. On November 13, 2012, Richardson sent a third "QWR" bycertified mail to Nationstar.11 The letter was received on November 19, 2012; Nationstar did not respond. Id. On December 4, 2012, Richardson received a billing statement from Nationstar. ECF No. 1 ¶ 33. On January 17, 2013, Richardson "obtained a copy of his credit report and observed that defendant Nationstar was reporting information regarding overdue payments." Id. ¶ 35.
On March 18, 2013, Richardson pro se sued Nationstar and R&A for violations of the FDCPA and other statutes.12 On June 12, 2013, R&A moved to dismiss. ECF No. 5. On June 27, 2013, Nationstar moved to dismiss. ECF No. 9. On July 12, 2013, Richardson opposed R&A's motion to dismiss. ECF No. 16. On July 26, 2103, R&A replied. ECF No. 18. On July 26, 2013, Richardson opposed Nationstar's motion to dismiss. ECF No. 19. On August 28, 2013, Nationstar replied. ECF No. 22. OnDecember 3, 2013, Richardson moved to voluntarily dismiss Counts V, VII, and VIII without prejudice.13 On December 17, 2013, Nationstar opposed the motion. ECF No. 24. On December 30, 2013, Richardson replied. ECF No. 25.
Under Fed. R. Civ. P. 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6) tests the legal sufficiency of a complaint, but does not "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
The Court bears in mind that Rule 8(a)(2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Migdal v. Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325-26 (4th Cir. 2001). Although Rule 8's notice-pleading requirements are "not onerous," the plaintiff must allege facts that support each element of the claim advanced. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003). These facts must be sufficient to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
This requires that the plaintiff do more than "plead[] facts that are 'merely consistent with a defendant's liability'"; the facts pled must "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). The complaint must not only allege but also "show" that the plaintiff is entitled to relief. Id. at 679 (internal quotation marks omitted). "Whe[n] the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Id. (internal quotation marks and alteration omitted).
Richardson seeks to voluntarily dismiss, without prejudice, Counts V, VII, and VIII. See ECF No. 23 at 1. The Court will construe Richardson's request as a motion to amend the complaint under Rule 15 to remove those claims.14
Under Fed. R. Civ. P. 15(a)(2), the Court "should freely give leave [to amend] when justice so requires." Fed. R. Civ.P. 15(a)(2). Thus, "leave to amend should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or amendment would be futile." Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009) (internal citation and quotation marks omitted). The decision to grant leave to amend is within the sound discretion of the district court. See Deasy v. Hill, 833 F.2d 38, 40 (4th Cir. 1987).
Here, the case is in the beginning stages of litigation. There has been no discovery, and the Defendants have not moved for summary judgment. Thus, the Defendants would not be unfairly prejudiced if Richardson were permitted to reduce the number of claims in his complaint. Richardson's request, construed as a motion for leave to amend his complaint by deleting Counts V, VII, and VIII, will be granted.15
To state a claim under the FDCPA, the plaintiff must allege that: (1) the defendant is a debt collector under the FDCPA, (2) the plaintiff is the object of a collection activity arising from consumer debt, and (3) the defendant engaged in a debt collection activity prohibited by the FDCPA. See Ademiluyi v.PennyMac Mortg. Inv. Trust Holdings I, LLC, 929 F. Supp. 2d 502, 524 (D. Md. 2013); Stewart v. Bierman, 859 F. Supp. 2d 754, 759 (D. Md. 2012).
Richardson identifies eight provisions of the FDCPA as the basis for his claims against Nationstar and R&A.16 Nationstar argues that Richardson's claims fail because Nationstar is not a debt collector, and he has not alleged any facts showing violations of the FDCPA. See ECF No. 9-1 at 5. R&A also contends that Richardson has not identified any actions R&A took in violation of the FDCPA. See ECF No. 5-1 at 4.
By enacting the FDCPA, Congress sought to "eliminate abusive debt collection practices by debt collectors." 15 U.S.C. § 1692(e). A "debt collector" is "any person who uses any instrumentality of interstate commerce . . . in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." Id. § 1692a(6). The FDCPA applies when a debt collector uses practices prohibited by the statute. Bradshaw v. Hilco Receivables, LLC, 765 F. Supp. 2d 719, 725 (D. Md. 2011).The FDCPA contains non-exhaustive lists of prohibited practices. See, e.g., 15 U.S.C. § 1692f. "The FDCPA is a strict liability statute and a consumer has only to prove one violation in order to trigger liability." Bradshaw, 765 F. Supp. 2d at 725 (citing § 1692k(a)).
Nationstar argues that Richardson has not alleged facts showing that Nationstar is a "debt collector" under the FDCPA. See ECF No. 22 at 2. Generally, mortgage servicing companies are not debt collectors under the FDCPA. See, e.g., Adam v. Wells Fargo Bank, N.A., No. ELH-09-2387, 2011 WL 3841547, at *20 (D. Md. Aug. 26, 2011); Flores v. Deutsche Bank Nat'l Trust, Co., No. DKC-10-0217, 2010 WL 2719849, at *6 (D. Md. July...
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