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Olson v. Midland Funding, LLC

United States District Court, Fourth Circuit

December 18, 2013

TIMOTHY OLSON,
v.
MIDLAND FUNDING, LLC, et al.

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

Plaintiff Timothy Olson filed this action against Midland Funding, LLC ("Midland Funding") and Midland Credit Management, Inc. ("MCM"), (collectively "Midland"), and Lyons, Doughty & Veldhuis, P.C. ("LDV"), alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), the Maryland Consumer Debt Collection Act ("MCDCA"), and the Maryland Consumer Protection Act ("MCPA"). Both Midland and LDV have filed motions to dismiss. The parties have fully briefed the issues, and no hearing is necessary. See Local Rule 105.6. For the reasons set forth below, the motions will be granted.

BACKGROUND

In December 2010, Midland sued Olson in Maryland District Court in St. Mary's County to collect an unpaid credit card debt that Midland bought from Olson's original creditor, Chase Bank. (Am. Compl., ECF No. 11, ¶ 47). According to the complaint, Olson was never properly served with the lawsuit. (Am. Compl. ¶ 62). Although he lived in St. Mary's County when the suit was filed against him, Olson moved to Baltimore City soon after, and before he was served. (Am. Compl. ¶ 63). He did, however, discover the lawsuit in December 2010 when he searched the public Maryland Judiciary Case Search. (Am. Compl. ¶ 64). He then began contacting LDV throughout 2011 and early 2012, requesting that he be served at his new address, and even offering to pay Midland the principal on his account. (Am. Compl. ¶¶ 64-66, 68, 70, 73; Midland's Mot. Ex. 1, ECF No. 14-2). An affidavit for service attached to Midland's Motion to Dismiss shows Olson was served by substitute service at his new Baltimore City address in February 2012. (Midland's Mot. Ex.4, ECF No. 14-5). On April 4, 2012, Olson filed a request to transfer venue to Baltimore City. (Am. Compl. ¶ 73). Midland filed a consent motion, and the court transferred the case. ( Id. ). Before the scheduled trial date, however, Olson moved again to Calvert County. (Am. Compl. ¶ 74). When he appeared in court on August 22, 2012, in Baltimore City, Midland moved to strike service and to transfer venue. (Am. Compl. ¶ 75). The court granted Midland's motion and the case was transferred to Calvert County. ( Id. ).

Olson claims Midland and LDV violated provisions of the FDCPA, the MCDCA, and the MCPA in seven ways. First, Olson claims Midland and LDV violated 15 U.S.C. §§ 1692e, 1692e(2)(A), 1692e(4), 1692e(5), 1692e(10), 1692f, and 1692f(1), as well as § 14-202(8) of the MCDCA and § 13-303 of the MCPA, by seeking an affidavit judgment against him in state court without the proper documentation required under Maryland law. (Am. Compl. ¶¶ 89(a), 90(a), 91(a), 92(a), 93(a), 94(a), 95(a), 102, 110). Second, Olson alleges Midland and LDV violated the same provisions by filing a lawsuit to collect the debt when it did not have legal grounds to do so and misrepresented its standing. (Am. Compl. ¶¶ 89(b), 90(b), 91(b), 92(b), 93(b), 94(c), 95(b), 103, 110). Third, Olson claims Midland and LDV's use of a "scattershot litigation strategy" designed to deceive consumers into accepting default judgments or to coerce them into settling violates the above-listed provisions. (Am. Compl. ¶¶ 89(c), 90(c), 91(c), 92(c), 93(c), 94(d), 95(c), 104, 110). Fourth, Olson alleges Midland and LDV violated the previously listed provisions, with the exception of § 1692f(1), by claiming that the sale in which it obtained ownership rights to Olson's alleged debt was subject to representation or warranty as to collectibility. (Am. Compl. ¶¶ 89(d), 90(d), 91(d), 92(d), 93(d), 94(e), 105, 110). Fifth, Olson claims Midland and LDV violated §§ 1692d, 1692e, 1692e(10), and 1692f of the FDCPA by sending him updated interest worksheets on the amount he owed while refusing to serve him with the collection lawsuit and moving to change venue to the county where Olson lived when he did appear in court on August 22, 2012. (Am. Compl. ¶¶ 89(e), 93(f), 94(b), 94(f), 97). Sixth, Olson claims Midland and LDV violated § 1692e(10) of the FDCPA by having no meaningful attorney involvement when it filed suit against Olson. (Am. Compl. ¶ 93(e)). Seventh, and finally, Olson claims MCM violated § 1692c(a)(2) of the FDCPA by communicating with him when Midland knew Olson was represented by counsel with respect to the subject debt. (Am. Compl. ¶ 96).

Midland and LDV seek dismissal on the grounds that some of Olson's FDCPA claims are time-barred and that he has failed to state a claim upon which relief can be granted. The court finds that all of Olson's claims are either time-barred or fail to state a cause of action.

ANALYSIS

When ruling on a motion under Rule 12(b)(6), the court must "accept the well-pled allegations of the complaint as true, " and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). "The mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6)." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and alterations omitted). "To satisfy this standard, a plaintiff need not forecast' evidence sufficient to prove the elements of the claim.... However, the complaint must allege sufficient facts to establish those elements." Walters, 684 F.3d at 439 (quotations and citation omitted). "Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is probable, ' the complaint must advance the plaintiff's claim across the line from conceivable to plausible.'" Id. (quoting Twombly, 550 U.S. at 570).

I. Time-Barred FDCPA Claims

A private action under the FDCPA must be brought within one year of the date of the alleged violation. Kouabo v. Chevy Chase Bank, F.S.B., 336 F.Supp.2d 471, 475 (D. Md. 2004) (citing 15 U.S.C. § 1692k(d)). Olson filed suit against Midland and LDV on May 20, 2013. (Notice of Removal, ECF No. 1, ¶ 1). Because much of the conduct Olson alleges to have violated the FDCPA occurred prior to May 20, 2012, many of his claims are time-barred.

A. Filing of Updated Interest Worksheets

Olson's claims regarding the filing of updated interest worksheets are time-barred. Olson alleges Midland violated §§ 1692d, 1692e, and 1692f by continuing to file updated interest worksheets with the court in the underlying collection suit even though it allegedly had not yet served him with the suit and moved to strike service and transfer venue when Olson did appear for trial.[1] (Am. Compl. ¶¶ 89(e), 93(f), 94(f), 97). The last interest worksheet to which Olson objects was filed on March 19, 2012. (Am. Compl. ¶ 72). This falls outside the one-year limitations period, and his claims are time-barred.

B. Claims Regarding Midland's Filing of a Collection Lawsuit

All of Olson's claims founded on the filing of a collection lawsuit against him are timebarred. For the purpose of calculating the statute of limitations, courts vary as to whether an FDCPA violation based on the filing of a lawsuit occurs at the time of filing or upon service. Compare Serna v. Law Office of Joseph Onwuteaka, P.C., 732 F.3d 440, 445 (5th Cir. 2013) (finding that a violation of § 1692i(a)(2) occurs when the debtor receives notice of the filed lawsuit), and Johnson v. Riddle, 305 F.3d 1107, 1113 (10th Cir. 2002) ("We hold that, where the plaintiff's FDCPA claim arises from the instigation of a debt collection suit, the plaintiff does not have a complete and present cause of action, '... until the plaintiff has been served." (internal citations omitted)), with Naas v. Stolman, 130 F.3d 892, 893 (9th Cir. 1997) ("We hold that the statute of limitations began to run on the filing of the complaint in the Municipal Court."), and Blakemore v. Pekay, 895 F.Supp. 972, 983 (N.D. Ill. 1995) (measuring the statute of limitations from the date a legal action was instituted); see also Winemiller v. Worldwide Asset Purchasing, LLC, 2011 WL 1457749, at *3 (D. Md. 2011) (noting it can be either date)[2]; Prade v. Jackson & Kelly, 941 F.Supp. 596, 600 (N.D.W.V. 1996) (same). The distinction does not make a difference, however, in this case. Midland filed its collection lawsuit against Olson in December 2010 and, although Midland never personally served Olson, it effected service in February 2012 by leaving a copy of the ...


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