Sterling v. Ourisman Chevrolet of Bowie Inc.

• Decision Date: 02 May 2013
• Docket Number: Case No. PWG–12–3193.
• Citation: 943 F.Supp.2d 577
• Parties: Monica STERLING, Plaintiff, v. OURISMAN CHEVROLET OF BOWIE INC., et al., Defendants.
• Court: U.S. District Court — District of Maryland

943 F.Supp.2d 577

Monica STERLING, Plaintiff,

v.OURISMAN CHEVROLET OF BOWIE INC., et al., Defendants.

Case No. PWG–12–3193.

United States District Court,

D. Maryland,

Southern Division.

May 2, 2013.

Tyler King, Tyler Jay King Esq., Attorney at Law, Washington, DC, for Plaintiff.

Richard W. Evans, McCarthy Wilson, Rockville, MD, for Defendants.

MEMORANDUM OPINION

PAUL W. GRIMM, District Judge.

This Memorandum Opinion addresses the Motion to Dismiss that Defendants Ourisman Chevrolet of Bowie, Inc., Henry Hylton, William Taliaferro, and Lew Gilinsky filed, ECF No. 5; Plaintiff Monica Sterling's Opposition, ECF No. 12; and Defendants' Reply, ECF No. 14. A hearing is not necessary. See Loc. R. 105.6. For the reasons stated herein, Defendant's Motion is GRANTED IN PART and DENIED IN PART. Defendants must file their Answers no later than May 16, 2013, at which time the Court will enter a Scheduling Order and schedule a Rule 16 conference call with the parties to discuss further pretrial proceedings. This Memorandum Opinion disposes of ECF Nos. 5, 12 and 14.

I. BACKGROUND¹

Plaintiff went to Ourisman's dealership on September 11, 2012 to trade in her 2007 Chevrolet Trailblazer for a different vehicle. Compl. ¶¶ 5, 10–11, ECF No. 1. She test drove a “fully loaded” Chevrolet Traverse and met with Ourisman employees, including Gilinsky, Hylton, and Taliaferro. Id. ¶¶ 7–9, 13–16. Gilinsky suggested a monthly payment of $650, Plaintiff said that it was acceptable to her, and Hylton met with Plaintiff regarding the necessary paperwork. Id. ¶¶ 17–19, 31. Hylton said that Plaintiff would have to provide her three most recent bank statements and a copy of Schedule C from her tax return, although she could sign the contract prior to producing the documents. Id. ¶¶ 19–20. He then informed her that the cost of the Traverse was $10,000 more than Ourisman originally quoted her, but that she could purchase a Chevrolet Equinox instead for the quoted amount. Id. ¶¶ 22, 24. Plaintiff left the dealership without purchasing a vehicle. Id. ¶¶ 25–27.

She returned with the requested documents the next day and test drove the Equinox. Id. After the test drive, Hylton informed Plaintiff that the Equinox would cost $800 per month, rather than the $650 per month he quoted her the day before. Id. ¶ 31. Plaintiff said that she would only pay $650 per month. Id. ¶¶ 32–33. Another employee named Robert later told Plaintiff that Ourisman could sell her the Equinox for $650 per month as expected, id. ¶ 38, and that she would have to make a deposit of $1,000 that day and a payment of $800 on September 20, 2012 before the transaction would be final, id. ¶¶ 40–41. Plaintiff signed a “Vehicle Sales Contract” and a “Retail Installment Sale Contract,” agreeing to purchase the Equinox and trade in her own vehicle, and agreeing to the financing terms. Id. ¶¶ 44–45.

Approximately sixteen days later, Taliaferro called Plaintiff and told her for the first time that she had to sign an IRS form 4506–T, which Plaintiff did. Id. ¶¶ 49, 51, 55. About five days later, Taliaferro informed Plaintiff that Ourisman was unable to secure financing for her and therefore she needed to return the Equinox. Id. ¶ 59. Plaintiff returned the vehicle, id. ¶ 64, and Taliaferro said that Ourisman would “mail her the difference” left from her deposit, based on “how much Ms. Sterlinghad driven the Equinox.” Id. ¶¶ 65–66. Taliaferro loudly commented, “in the presence of third parties, ... about how Ms. Sterling needed to deal with her credit, and get in touch with GMAC to straighten out her financing.” Id. ¶ 68.

Plaintiff's Trailblazer “had been sold, driven 100 miles, did not start properly, and the ‘check engine’ light was on,” and Ourisman replace the tires, such that they were no longer under warranty. Id. ¶¶ 74–76, 94. Additionally, Plaintiff incurred late fees for not making payments on the Trailblazer while Defendants had it. Id. ¶ 95. Ourisman had to buy the Trailblazer back to return it to her, id. ¶ 74–76, and told Plaintiff that she owed them $1,400, id. ¶ 78. After Plaintiff complained, Gilinsky told Plaintiff verbally, and in writing on the back of his business card, that Ourisman would return all of her money within four days. Id. ¶¶ 91–92.

Ourisman did not return Plaintiff's deposit. Id. ¶ 93. Plaintiff filed a Complaint against Defendants and Ally Financial, Inc.,² alleging various statutory claims, as well as the common law torts of fraud and negligence. Compl. 1.

II. STANDARD OF REVIEW

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, Civil Action 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, do not suffice,” Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937.See Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly ). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663, 129 S.Ct. 1937.

According to Plaintiff, this case “is essentially a simple case of fraud,” with fraudulent behavior underlying each of the statutory claims. Pl.'s Opp'n 1. Plaintiff's fraud allegations must meet the “heightened pleading standard under Rule 9(b).” Piotrowski v. Wells Fargo Bank, N.A., No. DKC–11–3758, 2013 WL 247549, at *5 (D.Md. Jan. 22, 2013).

Rule 9(b) states that “in alleging a fraud or mistake, a party must state with particularity the circumstances constituting the fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” Such allegations [of fraud] typically “include the ‘time, place and contents of the false representation, as well as the identity of the person making the misrepresentation and what [was] obtained thereby.’ ” In cases involving concealment or omissions of material facts, however, meeting Rule 9(b)'s particularityrequirement will likely take a different form. The purposes of Rule 9(b) are to provide the defendant with sufficient notice of the basis for the plaintiff's claim; to protect the defendant against frivolous suits; to eliminate fraud actions where all of the facts are learned only after discovery; and to safeguard the defendant's reputation.

Id. (citations omitted); see Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 780–81 (4th Cir.2013).

III. DISCUSSIONA. Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (Count I)

“ ‘The FDCPA protects consumers from abusive and deceptive practices by debt collectors, and protects non-abusive debt collectors from competitive disadvantage. Section 1692e forbids the use of any false, deceptive, or misleading representation or means in debt collection and provides a non-exhaustive list of prohibited conduct.’ ” 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) (quotation omitted)). Plaintiff claims that Defendants violated 15 U.S.C. §§ 1692d, 1692e(2) and (10), and 1692f.³ To state a claim for relief under any of these provisions of the FDCPA, Plaintiff must allege that “(1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt [ ] collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.” Stewart, 859 F.Supp.2d at 759–60 (citation omitted); see Ademiluyi v. PennyMac Mortg. Inv. Trust Holdings I, LLC, No. ELH–12–752, 929 F.Supp.2d 502, 524, 2013 WL 932525, at *17 (D.Md. Mar. 11, 2013) (citing 15 U.S.C. § 1692). Defendants contend that “Plaintiff has not alleged facts sufficient to support a finding that any Defendant is a debt collector as defined in the FDCPA.” Defs.' Mem. 7.

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.” 15 U.S.C. § 1692a(6). Simply put, “a party qualifies as a debt collector where it operates a business that has the principal purpose of collecting debts or regularly attempts to collect debts that are owed to another.” Goia v. CitiFinancial Auto, 499 Fed.Appx. 930, 938 (11th Cir.2012). “Notably, “the FDCPA does not apply to any person collecting on a debt that it ‘originated.’ ” ” Ademiluyi, 929 F.Supp.2d at 525, 2013 WL 932525, at *18 (quoting 15 U.S.C. § 1692a(6)(F)(ii)).

Here, Plaintiff has not tried to allege, nor could she succeed in alleging, that any of Defendants is operating a business the principal purpose of which is to collect debts. Rather, Defendants are a car dealership and its employees; the principal purpose of their business is to sell cars. Nor had Plaintiff alleged that any of Defendants regularly collects debts due to another. Plaintiff points to ¶ 102 of the Complaint and insists that it ...