United States District Court, D. Maryland
MEMORANDUM AND ORDER
P. Gesner United States Magistrate Judge.
above-referenced case was referred to the undersigned for all
proceedings with the parties' consent, pursuant to 28
U.S.C. § 636(c) and Local Rule 301.4. (ECF No. 24.)
Currently pending before the court are: (1) Plaintiffs'
Motion for Partial Summary Judgment (“Plaintiffs'
Motion”) (ECF No. 59); (2) Defendants' Opposition to
Plaintiffs' Motion and Defendants' Motion for Summary
Judgment (“Defendants' Motion”) (ECF No. 60);
(3) Plaintiffs' Reply in Support of Plaintiffs'
Motion (ECF No. 63) (Plaintiffs' Reply); and (4)
Defendants' Reply in Opposition to Plaintiffs' Motion
and in Support of Defendants' Motion
(“Defendants' Reply”) (ECF No. 64). The
issues are fully briefed, and no hearing is necessary. Loc.
R. 105.6. For the reasons stated below, Plaintiffs'
Motion is DENIED, and Defendants' Motion is DENIED.
Abdul and Daday Conteh (“plaintiffs”) allege
violations of the Fair Debt Collection Practices Act
(“FDCA”), the Maryland Consumer Debt Collection
Act (“MCDCA”), and the Maryland Consumer
Protection Act (“MCPA”) in connection with
defendants Shamrock Community Association, Inc.
(“Shamrock”) and Nagle & Zaller, P.C.'s
“defendants”) efforts to satisfy a judgment
entered against plaintiffs in the District Court for Anne
Arundel County (“District Court”) in 2013. On
September 3, 2015, this court granted defendants' motion
to dismiss plaintiffs' amended complaint (ECF Nos. 34,
35), and plaintiffs timely appealed. On May 19, 2016, the
United States Court of Appeals for the Fourth Circuit
affirmed this court's judgment in part, vacated it in
part, and remanded the case for further proceedings. (ECF No.
their Motion, plaintiffs argue that the undisputed evidence
establishes that defendant Nagle: (1) violated 15 U.S.C.
§ 1692e (FDCA) when it attempted to file a Request for
Writ of Execution (the “Writ”) in the District
Court that overstated the amount due to defendant Shamrock by
$80; and (2) violated 15 U.S.C. § 1692f(1) (FDCA) and
Md. Code Ann., Com. Law § 14-202(8) (MCDCA) when it
attempted to collect and actually collected an unauthorized
$15 filing fee. (ECF No. 59-1 at 11-16.) Defendants
contend that the Writ did not contain any unauthorized costs
and was accurate at the time it was prepared. (ECF No. 60-1
at 4-5, 8.) Alternatively, defendants argue that, even if the
Writ incorrectly stated plaintiffs' outstanding balance,
the error did not constitute a material misrepresentation in
violation of the FDCA. (Id. at 5-8.)
court must grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A genuine dispute exists “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
deciding a motion for summary judgment, the court views all
facts and makes all reasonable inferences in the light most
favorable to the nonmoving party. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). The nonmoving party, however, may not rest on its
pleadings, but must show that specific, material facts exist
to create a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). Summary judgment
should be denied only where a court concludes that a
reasonable jury could find in favor of the nonmoving party.
Anderson, 477 U.S. at 252.
PLAINTIFFS' § 1692e (FDCA) CLAIM
FDCA prohibits debt collectors from using “any false,
deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. Whether a communication is false, misleading,
or deceptive is determined from the vantage of the
“least sophisticated consumer.” Powell v.
Palisades Acquisition XVI, LLC, 782 F.3d 119, 126 (4th
Cir. 2014). A misstatement must be material to sustain a
claim under section 1692e, meaning that it must be the type
of misstatement that “would have been important to the
consumer in deciding how to respond to efforts to collect the
debt.” Id. at 127. The Fourth Circuit remanded
for consideration of two specific issues: “[T]he degree
to which the amount due on [plaintiffs'] debt was
overstated and whether the extent of the overstatement would
have been material to the least sophisticated
consumer.” (ECF No. 39 at 5.)
argue that defendants overstated plaintiffs' outstanding
balance on the Writ by $80, which is an amount
“sufficient to be important to how the least
sophisticated consumer responds by causing confusion and a
potential challenge by the consumer to the writ.” (ECF
No. 59-1 at 12-13 (quoting ECF No. 39 at 6).) Both parties
agree that the Writ stated that plaintiffs owed $1748.98 on
the judgment, and that this balance included credit for four
previous $100 payments by plaintiffs. Beyond that, however,
the parties offer competing accounts of how much plaintiffs
actually owed, when defendants received and credited
plaintiffs' additional payments, and whether defendants
sought to recover any additional costs. The court thus
concludes that each party has presented sufficient evidence
for a reasonable jury to find in its favor, and therefore
neither party is entitled to summary judgment on
plaintiffs' FDCA claim.
to plaintiffs, defendants produced a statement of account
(ECF No. 59-3) (“Plaintiffs' Exhibit No. 2”)
during discovery which showed that plaintiffs initially owed
a total balance of $2168.98. (ECF No. 59-1 at 4-5.) Plaintiffs
claim that, by July 2, 2013, they had reduced the balance to
$1768.98 after making four $100 payments. (Id. at
5.) Plaintiffs further allege that, on July 23, 2013,
defendant Nagle added an unauthorized $15 “judgment
lien filing fee” to the statement of account, which
erroneously increased plaintiffs' balance to $1783.98.
(Id.) Plaintiffs claim that Nagle credited another
$100 payment on August 12, 2013, thereby reducing the actual
balance to $1668.98 (although the statement of account now
reflected a total of $1, 683.98). (Id. at 6.)
Finally, on September 3, 2013, plaintiffs received the
stating that plaintiffs owed an outstanding balance of
$1748.98, including “$65.00 in court costs for this
Writ.” (Id.; ECF No. 59-4 at 3.) Plaintiffs
argue that the $80 difference between the $1, 683.98 they
actually owed and the $1748.98 that defendants sought to
recover is attributable to the $15 filing fee and the $65 in
court costs, neither of which defendants had actually
incurred or been validly awarded. (ECF No. 59-1 at 6.)
contend that the Writ did not contain any misleading or
deceptive statements, and have provided sufficient evidence
to support their version of the facts. First, defendants
claim that Plaintiffs' Exhibit No. 2 is an updated
version of the statement of account created after the Writ
was prepared, and that an earlier version (ECF No. 60-7)
(“Defendants' Exhibit No. 6”) formed the
basis of the balance asserted in the Writ. (ECF No. 60-1 at
4.) Notably, Defendants' Exhibit No. 6 shows an initial
balance of $2148.98 (rather than $2168.98) and does not
contain the $15 filing fee or the $65 in court
costs. (ECF No. 60-7.) Defendants do not dispute
that, as of July 2, 2013, Nagle had received and credited
four $100 payments from plaintiffs, but contend that those
payments reduced plaintiffs' outstanding balance to
$1748.98, as shown in Defendants' Exhibit No. 6. (ECF No.
60-1 at 2.) Defendants also do not dispute that they received
a fifth $100 payment from plaintiffs on August 5, 2013, but
claim that, “due to normal lag time and processing,
” Nagle did not credit this payment to the statement of
account until after defendants attempted to file the Writ on
September 3, 2013. (Id.) Thus, according to
defendants, plaintiffs actually owed $1748.98 as of the date
the Writ was prepared, and the alleged overstatement merely
reflects the pending August 5, 2013 payment. (Id. at
numerous discrepancies between the parties' accounting
methods clearly demonstrate that a genuine dispute exists as
to whether and to what extent defendants materially misstated
the amount due on plaintiffs' debt. At the very
least, the court is unable to determine, as a matter of law,
which of the two undated and apparently authentic statements
of account formed the basis of the amount defendants claimed
in the Writ. Moreover, there is a factual issue as to whether
defendants' alleged overstatement was the result of a
typographical or mathematical error by defendant Nagle, or if
defendants affirmatively misrepresented the judgment balance
in an attempt to collect unauthorized fees. Simply put, the
numbers do not add up, and genuine issues of material fact
remain for the jury. See Buchanan v. Northland Group,
Inc., 776 F.3d 393, 397 (6th Cir. 2015)
(“Generally speaking, a jury should determine whether
[a debt collection] letter is deceptive and
misleading.” (internal quotation marks omitted)).
PLAINTIFFS' § 14-202(8) (MCDCA)
the MCDCA, a debt collector may not “[c]laim, attempt,
or threaten to enforce a right with knowledge that the right
does not exist.” Md. Code Ann., Com. Law §
14-202(8). A debt collector may violate this provision by,
for example, placing a lien on the debtor's property for
an amount in excess of that to which the debt collector is
rightfully entitled, when the excess amount claimed is
attributable to an unauthorized processing fee. See
Allstate Lien & Recovery Corp. v. Stansbury, 101
A.3d 520, 529-30 (Md. Ct. Spec. App. 2014),
aff'd, 126 A.3d 40 (Md. 2015). Citing
Shula, plaintiffs claim that defendants violated
section 14-202(8) by attempting to collect the $15
“judgment lien filing fee” that had never been
validly awarded by the court. (ECF No. 59-1 at 16.)
Defendants dispute that plaintiffs were actually charged the
filing fee, but also suggest in their Reply that Maryland law
authorizes judgment creditors to recover administrative costs
without prior court order. (ECF No. 64-1 at 1-2 (citing Md.
Rules, Rule 3-603).) Thus, it is apparent from the record
that plaintiffs' claim under the MCDCA arises out of the
same disputed facts as plaintiffs' claim under the FDCA.
Accordingly, the court declines to grant summary judgment in
favor of either party on this claim.