Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Cohn, Goldberg & Deutsch, LLC

United States District Court, D. Maryland

October 30, 2017

JAMES A. SMITH, Plaintiff,
v.
COHN, GOLDBERG & DEUTSCH, LLC, Defendant.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge

         Plaintiff James A. Smith (“Smith” or “Plaintiff”) has filed this class action lawsuit[1]against 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.

         BACKGROUND

         This 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.

         (ECF 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 ¶¶ 24-25.)

         Smith 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.[2] (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 ¶ 29.)

         Per the 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.)

         STANDARD OF REVIEW

         Rule 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. 2017).

         Under 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.