United States District Court, D. Maryland
RENEE L. MCCRAY, Plaintiff,
SAMUEL I. WHITE, P.C., et al., Defendants.
L. Russell, III United States District Judge.
MATTER is before the Court on Defendants' Motion to Dismiss
under Federal Rule of Civil Procedure 12(b)(6) or, in the
alternative, for Summary Judgment under Rule 56. (ECF No. 7).
The Motion is ripe for disposition, and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2016). For the reasons
outlined below, the Court will grant in part and deny without
prejudice in part the Motion.
the third action Plaintiff Renee L. McCray has filed in this
Court to challenge the attempted foreclosure of her home at
109 North Edgewood Street, Baltimore, Maryland (the
“Property”). Subject to one exception that the Court
will outline below, in this action, McCray focuses on the
conduct of Defendants after the United States Bankruptcy
Court for the District of Maryland (the “Bankruptcy
Court”) granted her a discharge in 2014. Though McCray
alleged in previous actions that Defendants violated the Fair
Debt Collection Practices Act
(“FDCPA”) in attempting to foreclose on the
Property, she asserts that this action arises out of
“new and continuous violations of the FDCPA.”
(Compl. ¶¶ 3, 16, ECF No. 1). McCray maintains that
Defendants “continue to foreclose on [the Property]
without providing verified evidence [that] they have a legal
right to do so.” (Id. ¶ 16).
September 2013, while a foreclosure was pending on the
Property, McCray filed for Chapter 13 bankruptcy in the
Bankruptcy Court. (Id. ¶ 24). The Bankruptcy
Court later converted McCray's bankruptcy petition into
one under Chapter 7. (Id. ¶ 26). In July 2014,
the Bankruptcy Court ordered that McCray's debts be
discharged. (Id. ¶ 27). In December 2015, the
Bankruptcy Court issued a final decree and closed
McCray's bankruptcy case. (Id. ¶ 28).
January 11, 2016, Defendants filed in McCray's state
foreclosure case a “Notice of Termination of Automatic
Stay of 11 U.S.C. Section 362.” (Id. ¶
29). Defendants attached the final decree from McCray's
bankruptcy case and asserted that they intended to resume
foreclosure proceedings. (Id.). McCray received
Defendants' January 11 notice on January 13, 2016.
(Id. ¶ 30). That same day, McCray sent
Defendants a “Notice to Debt Collector” in which
she afforded Defendants ten days to (1) “provide
verified evidence that they had a right to continue the
foreclosure action after the bankruptcy discharge, ”
(id. ¶ 31); (2) rebut her notice “line by line,
” (id.); (3) “cease and desist any and all
foreclosure actions that have not been rendered by a judgment
issued through a court of record, ” (id. ¶ 32);
and (4) “provide a verified proof of claim that
indicates that you are the holder in due course, ” (ECF
No. 1-2 at 4). Defendants failed to respond to McCray's
January 13, 2016 notice. (Compl. ¶ 34).
February 25, 2016, McCray received from Defendants a notice
dated February 22, 2016 that her home would be sold in a
foreclosure sale. (Id. ¶ 35). The notice
provided the following: “Pursuant to Maryland Rule
14-210 and pursuant to Section 7-105.2 of the Real Property
Article of the Maryland Code, we are hereby notifying you
that the foreclosure sale of [the Property] has been
scheduled.” (ECF No. 1-4 at 3). Defendants attached a
copy of the newspaper advertisement that they intended to run
to set forth the time, place, and terms of the foreclosure
sale (the “Advertisement”). (Compl. ¶ 35).
The Advertisement states that “the holder of the
indebtedness secured by this Deed of Trust [has] appointed
[Defendants]” to carry out the foreclosure sale. (ECF
No. 1-4 at 4). McCray alleges that Defendants ran the
Advertisement in The Daily Record on March 4, 11, and 18,
2016 in the “Public Notice” section. (Compl.
¶ 45). She further alleges that between March 4 and
March 21, 2016, Defendants advertised the foreclosure sale of
the Property on the website of Harvey West Auctioneers, LLC.
(Id. ¶ 44).
March 2, 2016, McCray sent Defendants a “Demand Notice
to Cease and Desist Foreclosure Sale.” (Id.
¶ 38). In addition to ceasing and desisting from selling
her home, McCray's notice contained two demands. First,
Defendants must “provide within 72 hours verification
of the debt they were collecting, since the alleged debt was
discharged on July 14, 2014 in [the Bankruptcy Court].”
(Id. ¶ 39). Second, Defendants must
“provide within 72 hours, verification that [the] SIWPC
Defendants had an enforceable security interest to take any
non-judicial action to effect dispossession or disablement of
[the Property].” (Id. ¶ 40).
Defendants did not respond to McCray's March 2, 2016
notice, on March 14, 2016, she sent them a “Notice of
Fault and Opportunity to Cure - Demand Notice to Cease and
Desist and Violations of the [FDCPA].” (Id.
¶ 41). McCray again requested that Defendants validate
the debt. (ECF No. 1-5 at 3). When Defendants failed to
respond, on March 21, 2016, McCray sent them a “Notice
of Default in Dishonor and Consent to Judgment and Notice of
Pending Lawsuit to Enforce Violations of the [FDCPA].”
(ECF No. 1-6). In her March 21, 2016 notice, McCray appears
to assert that she is entitled to a default judgment that
Defendants violated multiple sections of the FDCPA.
the end of her Complaint, McCray abruptly returns to events
that occurred in 2013. She alleges that in February 2013,
Defendants filed “an illegal substitution of trustee
document” in her state foreclosure case. (Compl. ¶
48). McCray does not, however, elaborate on why the
substitution was illegal.
sued Defendants in this Court on April 4, 2016. (ECF No. 1).
She alleges that Defendants violated seven subsections of
Section 1692 of the FDCPA: (1) c(a); (2) c(b); (3) c(c); (4)
e(2)(A); (5) f(6)(A); (6) g(b); and (7) j(a). Defendants
filed their Motion on May 27, 2016. (ECF No. 7). McCray filed
an opposition on July 1, 2016. (ECF No. 11). To date, the
Court has no record that Defendants replied.
Standard of Review 1. Rule 12(d)
style their Motion as a motion to dismiss under Rule 12(b)(6)
or, in the alternative, for summary judgment under Rule 56. A
motion styled in this manner implicates the Court's
discretion under Rule 12(d). See Kensington Vol.
Fire Dept., Inc. v. Montgomery Cty., 788
F.Supp.2d 431, 436-37 (D.Md. 2011), aff'd sub nom.,
Kensington Volunteer Fire Dep't, Inc. v.
Montgomery Cty., 684 F.3d 462 (4th Cir. 2012). This Rule
provides that when “matters outside the pleadings are
presented to and not excluded by the court, the [Rule
12(b)(6)] motion must be treated as one for summary judgment
under Rule 56.” Fed.R.Civ.P. 12(d). The Court
“has ‘complete discretion to determine whether or
not to accept the submission of any material beyond the
pleadings that is offered in conjunction with a Rule 12(b)(6)
motion and rely on it, thereby converting the motion, or to
reject it or simply not consider it.'”
Wells-Bey v. Kopp, No. ELH-12-2319, 2013 WL 1700927,
at *5 (D.Md. Apr. 16, 2013) (quoting 5C Wright & Miller,
Federal Practice & Procedure § 1366, at 159 (3d ed.
2004, 2012 Supp.)).
United States Court of Appeals for the Fourth Circuit has
articulated two requirements for proper conversion of a Rule
12(b)(6) motion to a Rule 56 motion: notice and a reasonable
opportunity for discovery. See Greater Balt. Ctr.
for Pregnancy Concerns, Inc. v. Mayor of Balt.,
721 F.3d 264, 281 (4th Cir. 2013). When the movant expressly
captions its motion “in the alternative” as one
for summary judgment and submits matters outside the
pleadings for the court's consideration, the parties are
deemed to be on notice that conversion under Rule 12(d) may
occur. See Moret v. Harvey, 381 F.Supp.2d 458, 464
(D.Md. 2005). The Court “does not have an obligation to
notify parties of the obvious.” Laughlin v.
Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th
summary judgment is inappropriate when “the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448 (4th Cir. 2011). Yet, “the
party opposing summary judgment ‘cannot complain that
summary judgment was granted without discovery unless that
party had made an attempt to oppose the motion on the grounds
that more time was needed for discovery.'”
Harrods Ltd. v. Sixty Internet Domain
Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting
Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996)). To raise sufficiently the
issue that more discovery is needed, the non-movant must
typically file an affidavit or declaration under Rule 56(d),
explaining the “specified reasons” why “it
cannot present facts essential to justify its
opposition.” Fed.R.Civ.P. 56(d).
Fourth Circuit has warned that it “‘place[s]
great weight on the Rule 56[d] affidavit' and that
‘a reference to Rule 56[d] and the need for additional
discovery in a memorandum of law in opposition to a motion
for summary judgment is not an adequate substitute for a Rule
56[d] affidavit.'” Harrods, 302 F.3d at 244
(quoting Evans, 80 F.3d at 961). Failing to file a Rule 56(d)
affidavit “is itself sufficient grounds to reject a
claim that the opportunity for discovery was
inadequate.” Id. (quoting Evans, 80 F.3d at
961). Nevertheless, the Fourth Circuit has indicated that
there are some limited instances in which summary judgment
may be premature notwithstanding the non-movants' failure
to file a Rule 56(d) affidavit. See Id. A court may
excuse the failure to file a Rule 56(d) affidavit when
“fact-intensive issues, such as intent, are
involved” and the nonmovant's objections to
deciding summary judgment without discovery “serve as
the functional equivalent of an affidavit.”
Id. at 245 (quoting First Chicago
Int'l v. United Exch. Co., 836 F.2d 1375, 1380-81
the Court concludes that both requirements for conversion are
satisfied. The parties were on notice that the Court might
resolve Defendants' Motions under Rule 56 because
Defendants style their Motions in the alternative for summary
judgment and present extensive extra-pleading material for
the Court's consideration. See Moret, 381 F.Supp.2d at
464. McCray neither objects to converting Defendants'
Motion nor presents a Rule 56(d) affidavit, or a functional
equivalent, expressing a need for discovery. Instead, she
attaches her own extra-pleading material for the Court's
consideration. Accordingly, the Court will construe
Defendants' Motion as one for summary judgment.
reviewing a motion for summary judgment, the Court views the
facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party's favor. Ricci
v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970)). Summary judgment is proper when the movant
demonstrates, through “particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
. . . admissions, interrogatory answers, or other materials,
” 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), (c)(1)(A).
motion for summary judgment is properly made and supported,
the burden shifts to the nonmovant to identify evidence
showing there is genuine dispute of material fact. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). The nonmovant cannot create a
genuine dispute of material fact “through mere
speculation or the building of one inference upon
another.” Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985) (citation omitted).
“material fact” is one that might affect the
outcome of a party's case. Anderson, 477 U.S. at 248; see
also JKC HoldingCo. v. Wash. Sports Ventures,
Inc.,264 F.3d 459, 465 (4th Cir. 2001) (citing
Hooven-Lewis v. Caldera,249 F.3d 259, 265 (4th Cir.
2001)). Whether a fact is considered to be
“material” is determined by the substantive law,
and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson, 477
U.S. at 248; accord Hooven-Lewis, 249 F.3d at 265. A
“genuine” dispute concerning a
“material” fact arises when the evidence is
sufficient to allow a reasonable jury to return a verdict in
the nonmoving party's favor. Anderson, 477 U.S. at 248.
If the nonmovant has failed to make a sufficient showing on
an essential element of her case where she has the burden of
proof, “there can be ‘no genuine ...