Skinner v. Garry
| Decision Date | 18 August 2020 |
| Docket Number | Civil No. ELH-19-3559 |
| Parties | EDWARD SKINNER III, Plaintiff, v. BART GARRY d/b/a LAW OFFICE OF BART GARRY, Defendant. |
| Court | U.S. District Court — District of Maryland |
In this putative class action, plaintiff Edward Skinner III has sued defendant Bart Garry d/b/a Law Office of Bart Garry in connection with a debt collection suit lodged by Mr. Garry against Mr. Skinner in the Circuit Court for Baltimore City. ECF 1 (the "Complaint"). According to plaintiff, Mr. Garry engaged in deceptive and unfair debt collection practices, in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1601 et seq., and the Maryland Consumer Debt Collection Act ("MCDCA"), Md. Code , § 14-201 of the Commercial Law Article. ECF 1, ¶¶ 31-41. Plaintiff seeks class certification as well as declaratory and injunctive relief, statutory and actual damages, attorney's fees, and costs. Id. at 10.
Mr. Garry has moved to compel arbitration and to stay plaintiff's suit, pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq. ECF 11. The motion is supported by a memorandum of law (ECF 11-1) (collectively, the "Motion to Compel") and five exhibits. ECF 11-2 to ECF 11-6. Plaintiff opposes the Motion to Compel (ECF 14) and has submitted one exhibit. ECF 14-1. Defendant has replied (ECF 19) and submitted eight more exhibits. ECF 19-1 to ECF 19-8.
After the conclusion of briefing on the Motion to Compel, plaintiff submitted a "Motion to Supplement Documentation" (ECF 23, "Motion to Supplement"), advising the Court that Mr. Garry had sued plaintiff's counsel, Jane Santoni, in State court. In addition, plaintiff filed an "Objection to Defendant's Affidavits," contesting the admissibility of two affidavits attached to defendant's reply. ECF 25 ("Motion to Disregard"). Defendant opposes the Motion to Supplement (ECF 26) and the Motion to Disregard. ECF 27.
The motions are fully briefed and no hearing is necessary to resolve them. Local Rule 105.6. As to the Motion to Supplement, the Court may take judicial notice of docket entries and filings in other cases. See Fed. R. Civ. P. 201; Brown v. Ocwen Loan Servicing, LLC, PJM-14-3454, 2015 WL 5008763, at *1 n.3 (D. Md. Aug. 20, 2015), aff'd, 639 F. App'x 200 (4th Cir. 2016). Therefore, I shall grant the Motion to Supplement. In contrast, because there is no basis to justify the wholesale rejection of ECF 19-1 and ECF 19-2, I shall deny the Motion to Disregard. And, for the reasons that follow, I shall deny the Motion to Compel.
Mr. Skinner is a resident of Baltimore City. ECF 1, ¶ 2. Mr. Garry is a Maryland attorney engaged in the debt collection business. Id. ¶ 3; see ECF 11-2 (Affidavit of Bart Garry). He is the sole proprietor of a law firm known as "Law Office of Bart Garry." ECF 11-2, ¶ 2. In addition, Mr. Garry is the "President and 100% stock owner" of BSD Collections, Inc. ("BSD"), a debt collection company incorporated in Maryland. Id. ¶ 1; see ECF 1, ¶ 13. According to defendant, BSD and the Law Office of Bart Garry work hand-in-glove: BSD purchases charged-off debt and then the Law Office of Bart Garry seeks to collect the debt through settlement or litigation. ECF 11-2, ¶ 3.
On November 18, 2015, Mr. Skinner entered into a Rental Purchase Agreement (the "Agreement") with Crest Financial Services, LLC ("Crest") for unspecified consumer goods. ECF1, ¶ 8; ECF 11-5 (Agreement). The Agreement provided for a twelve-month lease during which Mr. Skinner was to make monthly payments totaling $3,205.37, after which Mr. Skinner would take title to the property. ECF 11-5 at 1. Alternatively, Mr. Skinner could purchase the property outright within ninety days of receipt for the sum of $1,674.80. See id. at 1, 2.
The first page of the Agreement contains language in capital letters notifying that it is governed by an arbitration provision. Id. at 1. Specifically, it states, id.:
THIS LEASE CONTAINS AN ARBITRATION PROVISION (SEE §15). UNLESS YOU PROMPTLY REJECT THE ARBITRATION PROVISION (SEE §15(a)), THE ARBITRATION PROVISION WILL HAVE A SUBSTANTIAL EFFECT ON YOUR RIGHTS IN THE EVENT OF A DISPUTE, INCLUDING YOUR RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION PROCEEDING.
By signing the Agreement, Mr. Skinner acknowledged that he had read and agreed to the terms of the Agreement, including the arbitration provision. See id.
The Agreement's arbitration provision spans three pages. Id. at 4-6. Section 15(a) provides in part that unless the lessee timely rejects the arbitration provision, "either party may elect to arbitrate or require arbitration of any Claim under this Arbitration Provision." Id. at 4. Further, § 15(f) clarifies that if either party elects to arbitrate a claim, the lessee may not participate in a class action in court or in arbitration, either as a class representative or as a class member. Id. at 5.
A "Claim" is defined in § 15(b) as "any claim, dispute or controversy between you and us (including any Related Party) that arises from or relates in any way to this Lease or the Property," including "our collection of any amounts you owe; or our disclosure of or failure to protect any information about you." Id. at 4. In turn, § 15(b) specifies that the terms "'we,' 'us' and 'our' include our 'Related Parties,'" which are Crest's "parent companies, subsidiaries and affiliates,"as well as the "employees, directors, officers, shareholders, governors, managers and members" of Crest and its affiliates. Id.
Relevant here, the arbitration provision contains a choice of law clause. Specifically, § 15(i) provides, in pertinent part, id. at 5:
Mr. Skinner alleges that he became disabled after executing the Agreement and could no longer afford his monthly payments. ECF 1, ¶ 9. He claims that he attempted to return the leased consumer goods, but Crest refused to accept them. Id. Thereafter, Crest allegedly charged off Mr. Skinner's unpaid financial obligation. Id. ¶ 10.
According to defendant, Crest sold and assigned Mr. Skinner's debt to Debt Management Partners, LLC ("DPM") on June 29, 2017. In support of this assignment, Mr. Garry submitted a "Bill of Sale" between Crest and DPM that is dated June 29, 2017, and bears the signature of "Bob Millerberg," the CEO of Crest. ECF 11-3. According to the Bill of Sale, Crest sold DPM over eighty thousand debt accounts with an "Aggregate Unpaid Balance" of $176,632,730.75. See id.
In addition, defendant has submitted an undated document that appears to be an electronic file pertaining to Mr. Skinner's account. ECF 11-4. The document contains, inter alia, the last four digits of Mr. Skinner's social security number, his last payment date, and the charge-off amount. ECF 11-4. The document is not dated nor is it authenticated by a custodian of records at Crest.
On March 4, 2019, DPM sold and assigned a portfolio of debt accounts, including that of Mr. Skinner, to Cherrywood Enterprise, LLC ("Cherry"). ECF 19-1 (Affidavit of Craig M.Geisler), ¶ 2. Pursuant to the Bill of Sale, DPM "assign[ed] and transfer[ed] to [Cherry], its successors and assigns, all of [DPM's] rights, title, and interest in each and every one of the Accounts" covered by the transaction. ECF 19-4 (3/4/2019 Assignment and Bill of Sale). Craig M. Geisler, Cherry's President, attests that Mr. Skinner's account was part of the transaction. ECF 19-1, ¶ 2. Further, Mr. Geisler states that DPM provided Cherry with a copy of the Agreement executed by Mr. Skinner as well as records reflecting the assignment of Mr. Skinner's debt from Crest to DPM. Id. ¶ 3. Although Cherry did not create these documents, Mr. Geisler advises that they "have been incorporated into [Cherry's] own business records" and Cherry has "relied upon them in conducting [its] business." Id.
The next day, March 5, 2019, Cherry sold 307 debt accounts to BSD, including Mr. Skinner's. ECF 19-5 (3/5/2019 Assignment and Bill of Sale); see ECF 19-1, ¶¶ 4-5. Like the contracts between Crest and DPM and DPM and Cherry, the bill of sale between Cherry and BSD provides that Cherry "assign[ed] and transfer[ed]" its "rights, title, and interest in each and every one of the Accounts" to BSD. ECF 19-5. Both Mr. Garry and Mr. Geisler aver that the Bill of Sale is authentic and that Mr. Skinner's account was included in the transaction. ECF 19-1, ¶¶ 4-5; ECF 19-2, ¶¶ 4.
On August 12, 2019, BSD filed suit against Mr. Skinner in the Circuit Court for Baltimore City. See BSD Collections, Inc. v. Skinner, No. 01010018450-2019 (Balt. Cir. Ct.). Plaintiff claims that the suit was frivolous because it was filed more than three years after the last payment and therefore was barred by the statute of limitations. ECF 1, ¶¶ 14, 16. Furthermore, plaintiff alleges that Mr. Garry improperly sought $250 in attorneys' fees despite not being entitled to such an award because he was not representing a client. Id. ¶ 15. After Mr. Skinner filed a notice ofhis intention to defend the suit, BSD dismissed the action, with prejudice, on December 12, 2019. See BSD Collections, No. 01010018450-2019; see also ECF 1, ¶ 17.
This suit followed on December 14, 2019. ECF 1. On January 7, 2020, defendant moved to compel arbitration. ECF 11. As noted, plaintiff opposed the Motion (ECF 14) and Mr. Garry replied. ECF 19.
On February 11, 2020, plaintiff filed his Motion to Supplement, notifying the Court that Mr. Garry sued plaintiff's counsel, Jane Santoni, in State court in connection with this litigation. ECF 23; see ECF 23-1 (Jane Santoni Affidavit); ECF 23-2 (Circuit Court Complaint); see also Garry v. Santoni, No. 24C20000003 (Balt. Cir. Ct.). Mr. Garry...
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