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Grant-Fletcher v. McMullen & Drury, P.A.

United States District Court, D. Maryland

August 8, 2013

MCMULLEN & DRURY, P.A., Defendant

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[Copyrighted Material Omitted]

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For Luciena S. Grant-Fletcher, Plaintiff: Bernard Thomas Kennedy, LEAD ATTORNEY, The Kennedy Law Firm, Edgewater, MD; Michael William Kennedy, LEAD ATTORNEY, The Kennedy Law Firm, Branford, CT.

For McMullen & Drury, P.A., Defendant: R Scott Krause, LEAD ATTORNEY, Stephen M Cornelius, Eccleston and Wolf PC, Hanover, MD.


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George L. Russell, III, United States District Judge.


THIS MATTER is before the Court on Defendant McMullen & Drury, P.A.'s (" M& D" ) Motion for Summary Judgment (ECF No. 17) and Plaintiff Luciena S. Grant-Fletcher's Cross-Motion for Partial Summary Judgment (ECF No. 21). This case involves a claim that, in its efforts to collect a debt arising from outstanding assessments Mrs. Fletcher owed to Barnside Condominium Association, Inc. (" Barnside" ), M& D violated the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. § § 1692 et seq. (2012). [1]

The Amended Complaint appears to assert seven distinct violations under the FDCPA [2] : (1) failing to inform Mrs. Fletcher of the proper time period for requesting validation of debts (Counts I & III); (2) requesting that Mrs. Fletcher telephone M& D if she believed that the debt, or any portion thereof, was erroneous (Count II); (3) failing to disclose that Mrs. Fletcher had the right to dispute a portion of the claimed debt (Count IV); (4) requesting attorney's fees in the amount of $300.00 dollars (Count V); (5) failing to obtain the proper licensure as a collection agency in the State of Maryland (Count VI); and (6) overstating the amount of the debt (Count VII).

The issues have been fully briefed and no hearing is necessary. See Local Rule 105.6 (D.Md. 2011). For the reasons that follow, M& D's Motion will be granted in part and denied in part. It will be granted as to Counts I, III, IV, V, and VI, but denied as to Counts II and VII. Mrs. Fletcher's Cross-Motion for Partial Summary Judgment on Count VII will be granted.

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Mrs. Fletcher owns a home in Columbia, Maryland, within the residential community known as Barnside. Under the by-laws of the Barnside community, all homeowners are obligated to remit a monthly assessment to Barnside. M& D is a Maryland law firm that engages in general law practice. Richard W. Drury is a shareholder of M& D. Mr. Drury's practice encompasses several areas of general civil litigation, including homeowners and condominium association matters. Barnside is a client of M& D, and, among other things, retains the firm for collection services connected to outstanding homeowners' association dues and fees (" HOA assessments" ).

In April 2011, Barnside advised Mr. Drury that Mrs. Fletcher had past due HOA assessments that Barnside wished to collect. Mrs. Fletcher had fallen behind on the $175.00 monthly HOA assessments that Barnside required her to pay. Barnside provided Mr. Drury with a copy of the account statement through April 15, 2011, and the related State Department of Assessment and Taxation (" SDAT" ) property search information. The account statement showed that as of that date, Mrs. Fletcher owed Barnside $365.00. [3]

On May 6, 2011, Mr. Drury sent a debt collection letter (the " Letter" ) to Mrs. Fletcher. In the Letter, Mr. Drury stated the amount due as $1,060.00, $300.00 of which was for " collection fees and expense fees," [4] and the remainder for missed monthly payments and related late fees. In relevant part, the Letter further provided:

This is an attempt to collect a debt and any information obtained will be used for that purpose. If you believe that the debt, or any portion thereof, as stated in the accompanying notice is erroneous or is otherwise not due as claimed, please promptly contact our office. You may contact our office at 410-337-8702. In such event, we will obtain verification of the claimed debt from the Association or its managing agent, if any, and will mail a copy of such verification to you. If you fail to so contact this office within thirty (30) days of receipt of this notice, the stated amount of the debt will be presumed valid. If, however, you request proof of the debt within thirty (30) days, collection efforts will be suspended until the requested verification is mailed to you. Furthermore, upon written request within thirty (30) days of receipt of the original notice of the debt, we will provide the name and address of the original creditor, if different from the current creditor.
. . . .
If payment is received within thirty (30) days, from the date of this letter, no further legal action will be taken against you and your unit.
Unless payment in the amount of $1,060 is received within thirty (30) days from the date of this letter, the Association intends to create and record a lien against your property. Attached hereto is a Notice of Intention to Create Lien . . . .

(Def.'s Mot. for Summ. J. Ex. 4, at 1-2 [" Debt Collection Letter" ], ECF No. 17-5) (emphasis in original).

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In addition to the Notice of Intention to Create Lien, the Letter contained a page and a half Notice of Rights (the " Notice" ) under the FDCPA that appears to be a verbatim recitation of the validation of debts provision in the FDCPA. (Id. at 4-5); see also 15 U.S.C. § 1692g.

Following the Letter, M& D continued its attempt to collect the debt. After not hearing from Mrs. Fletcher, Mr. Drury filed a Statement of Lien with the Circuit Court of Maryland for Howard County on or about September 20, 2011. He then sent a FDCPA-complaint correspondence with an enclosed copy of the lien to Mrs. Fletcher.

After still not having heard from Mrs. Fletcher on December 13, 2011, Mr. Drury informed her in writing of Barnside's intention to file a petition for sale of property and ultimately foreclose. In that letter, he identified a January 15, 2012 deadline for Mrs. Fletcher to bring her account current and stop the foreclosure proceedings. On January 4, 2012, at Mr. Drury's instructions, M& D's receptionist, Nicole Ryan, faxed a copy of Barnside's account statement for the property to Mrs. Fletcher.

Finally, on January 16, 2012, Mrs. Fletcher responded to the December 13 letter by faxing a proposed installment schedule to M& D. In the letter, she expressed a commitment to resolve her account balance in full by March 15, 2012. Mrs. Fletcher also followed-up with a voicemail to M& D, reaffirming her desire to resolve the balance in full by March 15.

Sometime thereafter, the record indicates that Mrs. Fletcher obtained legal counsel. On January 17, 2012, Mr. Drury informed Mrs. Fletcher's counsel that Barnside was agreeable to the proposed schedule and accepted the terms of the payment plan. Two weeks later, on January 26, 2012, Mrs. Fletcher called M& D to request a copy of her account statement and to inquire about the monthly payment amount. During that phone call, Mrs. Fletcher spoke with Ms. Ryan, who informed Mrs. Fletcher that she would send her a copy of the account statement. Ms. Ryan also told Mrs. Fletcher that she believed the payment plan would be implemented.

Less than a month later, on February 22, 2012, Mrs. Fletcher initiated this civil suit seeking relief under the above referenced statutes. (ECF No. 1). On May 11, 2012, following M& D's Motion for Summary Judgment, Mrs. Fletcher sought leave to amend her Complaint and filed the amendment that same day. (ECF No. 10). Several months later, on October 5, 2012, M& D filed its Motion for Summary Judgment regarding the claims in Mrs. Fletcher's Amended Complaint. (ECF No. 17). Mrs. Fletcher filed an Opposition on October 23, 2012, as well as a Cross-Motion for Partial Summary Judgment as to Count VII. (ECF No. 21). M& D issued its Reply on November 7, 2012. (ECF No. 22).


A. Standard of Review

Under Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).

In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once a motion for summary judgment is properly made and supported, the opposing party has the burden

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of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). " [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48.

A " material fact" is a fact that might affect the outcome of a party's case. Id. at 248; JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). Whether a fact is considered to be " material" is determined by the substantive law, and " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001).

A " genuine" issue concerning a " material" fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. Anderson, 477 U.S. at 248. Rule 56(c) requires the nonmoving party to go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party " cannot create a genuine dispute of material fact through mere speculation or compilation of inferences." Deans v. CSX Transp., Inc., 152 F.3d 326, 331 (4th Cir. 1998) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (internal quotations omitted)).

B. Analysis

1. The FDCPA

The FDCPA protects consumers from abusive and deceptive debt collection practices by debt collectors. Spencer v. Hendersen-Webb, Inc., 81 F.Supp.2d 582, 590 (D.Md. 1999) (citing United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996)). The FDCPA covers debt collectors who " regularly collec[t] or attemp[t] to collect, directly or indirectly, [consumer] debts owed or due or asserted to be owed or due another." Heintz v. Jenkins, 514 U.S. 291, 294, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995) (quoting 15 U.S.C. § 1692a(6)).

" [A] threshold requirement for application of the FDCPA is that the prohibited practices are used in attempt to collect a debt." Mabe v. G.C. Servs. Ltd. P'ship, 32 F.3d 86, 87-88 (4th Cir. 1994) (internal quotation mark omitted). The FDCPA prohibits " [t]he false representation of . . . the character, amount, or legal status of any debt" and " [t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain ...

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