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Martynuska v. National Payment Relief, LLC

United States District Court, District of Maryland

August 22, 2014

STEVE MARTYNUSKA, Plaintiff,
v.
NATIONAL PAYMENT RELIEF, LLC, et al., Defendants.

MEMORANDUM OPINION

Richard D. Bennett United States District Judge

The Plaintiff Steve Martynuska asserts claims against the Defendants National Payment Relief, LLC, Alberto Artasanchez, Rosalie Bucci, and John Does 1-10 (“Unknown Eviction/Cleaner Company and Employees”)[1] (collectively, “Defendants”) for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”), the Maryland Consumer Protection Act (“MCPA”), Md. Code Ann., Com. Law § 13-301, et seq. via the Maryland Consumer Debt Collection Act (“MCDCA”), Md. Code Ann., Com. Law § 14-201, et seq., and the Maryland Mortgage Fraud Act, Md. Code Ann., Real Prop. § 7-401, et seq. Pending before this Court are Defendant Rosalie Bucci’s Motion to Dismiss for Insufficiency of Service of Process or in the Alternative for Lack of Personal Jurisdiction (ECF No. 22), Defendant Alberto Artasanchez’s Motion to Dismiss for Insufficiency of Process or in the Alternative for Lack of Personal Jurisdiction (ECF No. 36), Defendant Rosalie Bucci’s Motion for Leave to File a Reply Brief (ECF No. 37), and the Plaintiff’s Motion for Partial Summary Judgment (ECF No. 41).[2] The parties’ submissions have been reviewed and no hearing is deemed necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Defendant Rosalie Bucci’s Motion for Leave to File a Reply Brief (ECF No. 37) is GRANTED, Defendant Rosalie Bucci’s Motion to Dismiss for Insufficiency of Service of Process or in the Alternative for Lack of Personal Jurisdiction (ECF No. 22) is DENIED, Defendant Alberto Artasanchez’s Motion to Dismiss for Insufficiency of Process or in the Alternative for Lack of Personal Jurisdiction (ECF No. 36) is DENIED, and the Plaintiff’s Motion for Partial Summary Judgment (ECF No. 41) is DENIED WITHOUT PREJUDICE.

BACKGROUND

This Court accepts as true the facts alleged in the Complaint (ECF No. 2). See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). The Plaintiff Steve Martynuska is a Maryland resident and the owner of real property at 3830 Greenbridge Drive, Monrovia, Maryland (the “Property”). Compl. ¶ 5. Non-party Wendy Cottrell acted as his agent in the course of the transactions giving rise to this case. Id. ¶ 5. Defendant National Payment Relief, LLC (“National Payment Relief”) is a Pennsylvania limited liability company that purchases defaulted mortgages and provides financial advice to the mortgagors in default. Id. ¶ 6. National Payment Relief has never been licensed in Maryland as a mortgage lender or collection agency. Id. Defendant Alberto Artasanchez is a New Jersey resident who is a managing member of National Payment Relief. Id. ¶ 7. Artasanchez directs National Payment Relief’s day-to-day operations, including foreclosures, acquisition of mortgage notes, evictions, and selling of properties. Id. ¶ 7. Defendant Rosalie Bucci is also a member of National Payment Relief. Id. Non-party Re/Max Results, Inc. (Re/Max) is a Maryland corporation licensed as a realtor. Id. ¶ 8.

The Property is subject to a first and second mortgage. The Plaintiff suffered financial hardship and the last payment he made on the second mortgage lien was applied to an installment due in 2011. Id. ¶ 44. As a result, Martynuska sought to modify the first and second mortgage liens on the Property. Id. ¶ 40.

National Payment Relief acquired the Plaintiff’s second mortgage and associated Deed of Trust on January 26, 2012, when the Plaintiff was in default on the second mortgage. Id. On or about July 24, 2012, National Payment Relief and Artasanchez directed non-parties attorney Cindy Diamond and her firm, Rosen Hoover P.A., to send Martynuska a Notice of Intent to Foreclose in an attempt to collect on the second mortgage. Id. ¶ 47. Martynuska alleges that National Payment Relief, Artasanchez, and Bucci participated in scheme to conceal the foreclosure proceeding while feigning negotiation with Martynuska. Id. ¶¶ 48-50. Beginning in September of 2012, Bucci requested information and payment several times from Martynuska’s agent, Cottrell, in order to stop National Payment from proceeding with a foreclosure sale. Id. However, on or about September 28, 2012, National Payment Relief and Artasanchez authorized Diamond and Rosen Hoover P.A. to file a foreclosure action against the Plaintiff and the Property in the Circuit Court for Frederick County, Maryland.[3] Id. ¶ 48. The Plaintiff alleges that National Payment Relief, Bucci, and Artasanchez continued to negotiate with him as an alternative to foreclosure with the intent to prevent him from requesting mediation, a stay, or a dismissal of the foreclosure proceeding before the Defendants could effect a foreclosure sale. Id. ¶ 49. Although the Defendants and their agents communicated extensively with the Plaintiff, he contends that no one ever told him that National Payment Relief had conducted a foreclosure sale on March 12, 2013. Id. ¶ 50.

He alleges that the Defendants knowingly tricked him into paying money that National Payment Relief was not entitled to collect. Id. ¶ 51. After the foreclosure sale, the Plaintiff alleges that National Payment Relief, through its agents Artasanchez, Bucci, Re/Max, and the Unknown Eviction/Cleaner Company illegally evicted him from the Property on or before May 6, 2013 and illegally seized his personal property. Id. ¶ 52. Re/Max then listed the Property for sale. Id. ¶ 59. Thereafter, Bucci requested payment from Martynuska to redeem the Property, even though the Plaintiff alleges that she knew this was illegal. Id. ¶ 49. The attorney/plaintiff in the foreclosure case, Diamond, denied knowledge of the eviction. Id. ¶ 53. The Plaintiff was unable to ascertain the identity of the Unknown Eviction/Cleaner Company from Re/Max or National Payment Relief. Id. ¶ 63.

Martynuska alleges that on March 14, 2013, just after the Property was sold, he reached a “sustainable modification” with the holder of his first mortgage lien, J.P. Morgan Chase Bank, N.A. Id. ¶ 41. Then, on May 6, 2013, he alleges that an unknown individual pretending to be Martynuska contacted J.P. Morgan Chase by telephone and requested a payoff amount because, “I plan to short sale my home.” Id. ¶ 64. The Plaintiff alleges that it was Artasanchez or another person associated with National Payment Relief who made this call, based on the fact that the call came from the same area code as that used by Artasanchez. Id.

The Plaintiff further alleges that the foreclosure action never had a ratified sale, National Payment Relief never paid the purchase price, and the Circuit Court for Frederick County never granted National Payment Relief the right to evict the Plaintiff and take possession of the Property. Id. ¶ 54-57. On June 3, 2013 Frederick County Circuit Court entered an Order granting Withdrawal of Report of Sale. ECF No. 9.

Martynuska alleges that Defendants National Payment Relief, Artasanchez, and Bucci acted as debt collectors against the Plaintiff without the mandatory State licenses. Id. ¶ 32-33. The Plaintiff alleges that he has suffered economic damages, damage to his credit, and emotional damages. Id. ¶ 69.

Martynuska filed a Complaint in the Circuit Court for Frederick County Maryland (ECF No. 2), asserting claims against National Payment Relief, Artasanchez, and Bucci for: (Count 1) violation of the Maryland Consumer Debt Collection Act, Md. Code Ann., Com. Law § 14-201, et seq.; (Count 2) violation of the Maryland Consumer Protection Act, Md. Code Ann., Com. Law § 13-101, et seq.; (Count 3) violation of the Mortgage Fraud Protection Act, Md. Code Ann., Real Prop. § 7-401, et seq.; and (Count 4) violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.[4]

Re/Max crossclaimed against National Payment Relief, Artasanchez, and Bucci. ECF No. 11. On November 26, 2013, the Frederick County Circuit Court dismissed Re/Max from the case with prejudice. See Stipulation of Partial Dismissal with Prejudice, ECF No. 17. Then, Re/Max dismissed its crossclaim on December 5, 2013 (ECF No. 19).

Bucci originally moved to dismiss in the Circuit Court for Frederick County on December 20, 2013 (ECF No. 22). National Payment filed a Counterclaim against Martynuska on December 30, 2013 (ECF No. 2).

On January 28, 2014, Defendant Artasanchez removed the case to this Court on the basis of federal question jurisdiction, 28 U.S.C. §§ 1331; 1441(c), to which Bucci and National Payment Relief consented (ECF No. 30). After the case was removed, Artasanchez also moved to dismiss (ECF No. 36).

The Plaintiff moved for partial summary judgment in his favor as to: (1) liability against National Payment Relief, Artasanchez, and Bucci; (2) National Payment’s third affirmative defense; and (3) his own affirmative defenses I through III of his Answer to the Counterclaim (ECF No. 41).

STANDARD OF REVIEW

A. Motion to Dismiss

1. Insufficient Service of Process

Under Rule 12(b)(5) of the Federal Rules of Civil Procedure, a defendant may move to dismiss for insufficient service of process. Fed.R.Civ.P. 12(b)(5). If service is contested, the plaintiff “bears the burden of establishing its validity, ” pursuant to Rule 4. O’Meara v. Waters, 464 F.Supp.2d 474, 476 (D. Md. 2006); Fed.R.Civ.P. 4. “Generally, when service of process gives the defendant actual notice of the pending action, the courts may construe Rule 4 liberally to effectuate service of process and uphold the jurisdiction of the court.” Id. (citing Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963)). Additionally, “[i]n cases removed to federal court, state law ...


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