United States District Court, D. Maryland
JAMES A. SMITH, Plaintiff,
COHN, GOLDBERG & DEUTSCH, LLC, Defendant.
Richard D. Bennett United States District Judge
James A. Smith (“Smith” or
“Plaintiff”) has filed this class action
lawsuitagainst Defendant Cohn, Goldberg &
Deutsch, LLC (“Cohn” or “Defendant”)
alleging Cohn failed to properly name the creditor to whom
the debt was owed as required by 15 U.S.C. § 1962g(a)(2)
in its initial written communications to Maryland consumers,
or within five days thereafter. (ECF No. 1 at ¶¶
10; 28.) Defendant Cohn has filed a Motion to Dismiss
Plaintiff's Complaint (“Cohn's Motion”),
asserting that Smith's claims fail as a matter of law,
because Cohn's Initial Communication Letter provides the
name of the owner of the note and does not contain any false
or misleading statements, meeting the requirements of §
1962g(a)(2). (ECF No. 9.) Currently pending before this Court
is Defendant's Motion to Dismiss. (Id.) The
parties' submissions have been reviewed, and no hearing
is necessary. See Local Rule 105.6 (D. Md. 2016).
For the following reasons, Defendant's Motion to Dismiss
(ECF No. 9) is DENIED.
Court accepts as true the facts alleged in Plaintiff's
complaint. See Aziz v. Alcolac, Inc., 658
F.3d 388, 390 (4th Cir. 2011). On or about November 15, 2016,
Defendant Cohn sent Plaintiff Smith an Initial Communication
Letter (the “Letter”) in connection to the
collection of a debt. (Compl., ECF No. 1 at ¶ 22.) The
Letter asserts that on November 18, 2005, Smith purchased
property at 9411 Lyonswood Drive, Owings Mills, Maryland
21117 financed through a mortgage with Mortgage Lenders
Network USA, Inc. (See ECF No. 1-1; see
also ECF No. 9-1 at 2.) The Letter states:
On November 18, 2005, you executed a Deed of Trust and Note
secured by the above referenced property, and borrowed money
in connection with a loan made by Mortgage Lenders Network
USA, Inc.. [sic] The current owner of the note is
U.S. Bank National Association, as Trustee, for Residential
Asset Securities Corporation, Home Equity Mortgage
Asset-Backed Pass-Through Certificates, Series 2006-EMX1, and
the current servicer of the above-referenced loan is Wells
Fargo Bank, N.A.. [sic] The loan has been referred
to this office for legal action based upon a default under
the terms of the loan agreement. . . .
Upon your written request within the thirty (30) day period,
this office will provide the name and address of the original
creditor if different from the current creditor.
IF YOU ARE A DEBTOR, OR AN ATTORNEY REPRESENTING A DEBTOR,
THIS COMMUNICATION IS AN ATTEMPT TO COLLECT A DEBT, AND ANY
INFORMATION OBTAINED HEREBY WILL BE USED FOR THAT PURPOSE.
No. 1-1.) The Letter was the first communication that Smith
received from Cohn, and other than an additional letter of
the same date concerning the Servicemembers Civil Relief Act,
Smith did not receive any other communication from Cohn
within five days of the Letter. (ECF No. 1 at ¶¶
claims that the Letter violated 15 U.S.C. § 1692g(a)(2)
of the Fair Debt Collection Practices Act
(“FDCPA”), because it “fail[ed] to clearly
specify, in a manner in which the least sophisticated
consumer could understand, the name of the creditor to whom
the Debt was owed.” (Id. at ¶ 28.)
Smith's Complaint states that he was confused about which
one of the entities listed in the Letter was the creditor
owed the debt. (Id. at ¶ 26.) The Complaint
further states that there were five entities listed in the
Letter. (Id. at ¶ 29.) The Letter
includes the following entities that are related to the debt
in question: Mortgage Lenders Network USA, Inc.; U.S. Bank
National Association; Residential Asset Securities
Corporation, Home Equity Mortgage Asset-Backed Pass-Through
Certificates, Series 2006-EMX1; Wells Fargo Bank, N.A.; and
“this office” (Cohn). (Id. at ¶
direction of the Letter, Smith wrote a letter to Cohn dated
December 7, 2016, in order to verify the debt. (Id.
at ¶ 36.) Subsequently, Smith filed this action alleging
that the Letter violates the FDCPA, because the Letter did
not contain the proper disclosures required by 15 U.S.C.
§ 1692g(a)(2). (Id. at 3.) Specifically, Smith
argues that the Letter failed to specify the name of the
creditor to whom the debt is owed, and Cohn did not provide
such disclosures within five days after. (Id.)
12(b)(6) of the Federal Rules of Civil Procedure authorizes
the dismissal of a complaint if it fails to state a claim
upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The
purpose of Rule 12(b)(6) is “to test the sufficiency of
a complaint and not to resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses.” Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006); see also Goines v.
Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir.
2016). The sufficiency of a complaint is assessed by
reference to the pleading requirements of Rule 8(a)(2), which
provides that a complaint must contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a
motion under Rule 12(b)(6), a complaint must contain facts
sufficient to “state a claim to relief that is
plausible on its face.” Bell Atl., Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009). Under the plausibility
standard, a complaint must contain “more than labels
and conclusions” or a “formulaic recitation of
the elements of a cause of action.” Twombly,
550 U.S. at 555; see Painter's Mill Grille, LLC v.
Brown, 716 F.3d 342, 350 (4th Cir. 2013). In reviewing a
Rule 12(b)(6) motion, a court “‘must accept as
true all of the factual allegations contained in the
complaint'” and must “‘draw all
reasonable inferences [from those facts] in favor of the
plaintiff.'” E.I. du Pont de Nemours & Co.
v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Houck v. Substitute Tr. Servs.,
Inc., 791 F.3d 473, 484 (4th Cir. 2015); Semenova v.
Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir.
limited exceptions, a court may consider documents beyond the
complaint without converting the motion to dismiss to one for
summary judgment. Goldfarb v. Mayor & City Council of
Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). A court
may properly consider documents that are “explicitly
incorporated into the complaint by reference and those
attached to the complaint as exhibits . . . .”
Goines, 822 F.3d at 166 (citations omitted);
U.S. ex rel. Oberg, 745 F.3d at 136 (quoting
Philips v. Pitt Cty Memorial Hosp., 572 F.3d 176,
180 (4th Cir. 2009)); Anand v. Ocwen Loan Servicing,
LLC, 75 ...