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Figgs v. Lendmark Financial Services, LLC

United States District Court, D. Maryland

June 15, 2016

SHERRYL FIGGS
v.
LENDMARK FINANCIAL SERVICES, LLC

          MEMORANDUM

          J. Frederick Motz United States District Judge

         Plaintiff Sherry 1 Figgs brings a putative class action against defendant Lendmark Financial Services, LLC ("Lendmark") relating to Lendmark's loan refinancing practices. Lendmark removed the case from Baltimore Circuit Court and Figgs has now filed a motion to remand. The parties have fully briefed the motion and no oral argument is necessary. See Local Rule 105.6. For the reasons set forth below, Figgs's motion is granted.

         BACKGROUND

         In June 2012, Lendmark issued a loan to plaintiff Sherryl Figgs for $2, 000.15. (ECF No. 5, ¶¶19-20). In November 2012, Lendmark offered Figgs another cash loan, which it promised to "tie in to the first loan." Id. at ¶ 22. In light of this offer, Figgs entered into another loan agreement with Lendmark, combining the first and second loan, which provided her with another $750.15 in cash. Id. at ¶ 24. After losing her job, Figgs fell into default on the loan and Lendmark filed a debt collection action in the District Court for Baltimore City. Id. at ¶ 43. On November 17, 2015, Figgs filed a putative class action complaint against Lendmark, alleging that Lendmark had charged usurious interest rates when it double charged Figgs for "bogus insurance premiums and finance charges." (ECF No. 2, ¶ 5). Figgs asserted claims for violations of the Maryland Credit Grantor Closed End Credit Provisions ("CLEC"), Md. Code Ann., Com. Law §§ 12-1001, et seq., the Maryland Consumer Debt Collection Act ("MCDCA"), Md. Code Ann., Com. Law §§ 14-201, et seq., and the Maryland Consumer Protection Act ("MCPA"), Md. Code Ann., Com. Law §§ 13-301, et seq. On February 8, 2016, Figgs filed an amended complaint, in which she deleted her allegations that Lendmark had double charged her. In their place, Figgs added allegations that Lendmark's loan fee and finance charges exceeded 10% of the original extension of credit and drove the overall interest rate for Figgs's loan higher than 24% in violation of Maryland law. Figgs again asserted counts against Lendmark for violations of the Maryland CLEC, MCDCA, and MCPA and added a claim for unjust enrichment and restitution.

         Figgs's putative class consisted of:

All persons who were consumer borrowers that entered into a contract with Lendmark pursuant to a credit contract governed by CLEC, and as to whom Lendmark charged an effective rate of simple interest in excess of 24% per year.
And/or
All persons who were consumer borrowers that entered into a contract with Lendmark pursuant to a credit contract governed by CLEC, and as to whom Lendmark charged loan fees and other charges in excess often percent of the original extension of credit.

Id. at ¶ 55. Lendmark removed the case from Baltimore City Circuit Court on February 26, 2016 pursuant to the Class Action Fairness Act of 2005("CAFA"), 28 U.S.C. § 1453, and 28 U.S.C. § 1332(d). (ECF No. 1). Now pending is Figgs's motion to remand the case back to state court.

(ECF No. 12).

         STANDARD

         Plaintiff seeks to remand the case on the ground that defendant's notice of removal was untimely. 28 U.S.C. § 1446(b) requires that a notice of removal be filed within 30 days of defendant's receipt of an initial pleading or, if the initial pleading does not provide a basis for removal, 30 days after receipt by the defendant of an amended pleading from "which it may first be ascertained that the case is one which is or has become removable." When a defendant fails to timely remove a case, the right to remove is forfeited. See McKinney v. Bd. of Trustees of MaylandCmty. Coll., 955 F.2d 924, 925 (4th Cir. 1992).

         ANALYSIS

         Plaintiff seeks to remand this case on two independently sufficient grounds. First, plaintiff contends that Lendmark has not established jurisdiction as required under CAFA. Second, plaintiff argues that Lendmark filed an untimely notice of removal. Because I find that Lendmark did not file the notice of ...


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