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Alston v. Cavalry Portfolio Services, LLC

United States District Court, Fourth Circuit

August 21, 2013




Pending before the Court is Defendant Capital Management Services, LP's Motion to Dismiss. The Court has reviewed the record and deems a hearing unnecessary. For the following reasons, the Court GRANTS Defendant's Motion to Dismiss.


Plaintiff Thomas Alston resides in Maryland. Defendant Capital Management Services ("Defendant") is a debt collector that does business in Maryland. Plaintiff alleges that, on July 15, 2011, former Defendant Cavalry Portfolio Services, LLC (Cavalry) sent him correspondence falsely asserting that Plaintiff had a delinquent credit card account. In this communication, Cavalry represented that Plaintiff owed it $449.63. Plaintiff allegedly disputed the debt with Cavalry. According to Plaintiff, Cavalry ultimately deleted the account when Plaintiff filed a civil action.

At an unspecified time after October 19, 2011, Defendant sent Plaintiff correspondence asserting that Plaintiff had a delinquent debt of $457.84 with Cavalry. In this correspondence, Defendant allegedly represented that it was authorized to settle the debt on Cavalry's behalf for $283.86. To supplement its Motion to Dismiss, Defendant has included a letter whose content equals Plaintiff's allegations concerning said correspondence. The letter is dated November 6, 2011. See Doc. No. 36. The Court treats this letter as a part of Plaintiff's Second Amended Complaint because it is referred to therein and integral thereto. See, e.g., Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citation omitted).

In response, Plaintiff allegedly sent Defendant a letter explaining that the debt was invalid. Plaintiff further alleges that he requested verification of the debt. Additionally, Plaintiff alleges that Defendant responded to his letter, stating that it had requested the debt verification information from Cavalry and would give it to him once Defendant received it. Plaintiff adds that Defendant never provided him with such information.

Based on these allegations, Plaintiff has filed a Second Amended Complaint asserting claims for violations of the FDCPA, the Maryland Consumer Debt Collection Act (MCDCA), and the Maryland Consumer Protection Act (MCPA). Doc. No. 28. Defendant has filed a Motion to Dismiss. Doc. No. 31. This Motion is ripe.[1]


The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In two recent cases, the U.S. Supreme Court has clarified the standard applicable to Rule 12(b)(6) motions. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). These cases make clear that Rule 8 "requires a showing, ' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3 (quoting Fed.R.Civ.P. 8(a)(2)). This showing must consist of at least "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In deciding a motion to dismiss, the court should first review the complaint to determine which pleadings are entitled to the assumption of truth. See Iqbal, 129 S.Ct. at 1949-50. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950. In so doing, the court must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999). The Court need not, however, accept unsupported legal allegations, Revene v. Charles County Commissioners, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).



The FDCPA follows a one-year statute of limitations. 15 U.S.C. § 1692k(d). The limitations period under § 1692k(d) generally starts to run on the date of the first violation. See Fontell v. Hassett, 870 F.Supp.2d 395 (D. Md. 2012) (citation omitted).

In this case, the documentation that Plaintiff's Second Amended Complaint incorporates shows that Defendant sent the allegedly offending communication on or around November 6, 2011. Yet Plaintiff failed to file suit until May 6, 2013. Plaintiff's FDCPA claim is time-barred as he waited 18 months to bring his FDCPA claim. Plaintiff maintains that it is improper for the Court to consider said communication as it is outside of the Second Amended Complaint. This assertion is incorrect in light of the fact that the Second Amended Complaint references this document and it is integral to Plaintiff's FDCPA claim. Nonetheless, Plaintiff's claim would be time-barred even if the Court did not consider said communication. Plaintiff's allegations lead ineluctably to the inference ...

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