United States District Court, D. Maryland
James E. Cooper
Fulton Bank, N.A., et al.
Catherine C. Blake United States District Judge
plaintiff, James E. Cooper, claims that the defendants,
Fulton Bank, N.A. and Richard & Associates, Inc.,
(“R&A”), violated the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692e,
the Maryland Consumer Debt Collection Act
(“MCDCA”), Md. Com. Law Code Ann. §
14-202(9), and committed several other state law violations:
negligence; breach of contract; trespass to land; conversion;
trespass to chattel; and violation of § 9-609 of
Maryland's Commercial Code.
has requested leave to file a first amended complaint and
both defendants have filed motions to dismiss. The court will
grant the plaintiff's request but, because Cooper's
federal claim is improperly asserted against the defendants
and the defendants did not breach the peace, the complaint
will be dismissed.
August 2015, Cooper defaulted on an installment contract he
entered five years earlier with Fulton Bank for the purchase
of a camper. (Am. Compl. ¶¶ 15, 17-18). Despite
being notified of the late payment by Fulton Bank, Cooper
failed to cure his delinquent account. (Id. at
¶ 18). As a result, Fulton Bank hired R&A to
repossess the camper. (Id. at ¶ 25). Two
R&A representatives attempted to do so on October 26,
2015, without warning Cooper. (Id. at ¶¶
19, 25). Fearing a home invasion after seeing two men run up
to his camper, Cooper retrieved his gun to detain the men.
(Id. at ¶¶ 28-32). During the altercation, the
R&A men identified themselves as repossessors from the
Pennsylvania Department of Banking, but Cooper suspected that
the men were lying. (Id. at ¶¶ 40-41). The
police, who were called by a passerby, did not. (Id.
at ¶ 45). Cooper was arrested and eventually charged
with “two counts of first degree assault; two counts of
second degree assault; three counts of reckless
endangerment;” and two handgun offenses. (Id.
at ¶ 47). He was tried and acquitted of these crimes.
(Id. at ¶ 48).
December 30, 2016, Cooper filed a complaint in federal court
arguing that the defendants violated the Fair Debt Collection
Practices Act, the Maryland Consumer Debt Collection Act, and
committed several other violations under state law. Cooper
seeks to recover the lost wages and attorneys' fees
caused by his arrest and prosecution. Both defendants have
filed motions to dismiss all counts in the complaint arguing,
among other things, that the FDCPA does not apply to them and
they never breached the peace. Oral argument was heard on
October 30, 2017. The court will grant the defendants'
motions to dismiss.
survive a motion to dismiss, the factual allegations of a
complaint “must be enough to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). “To
satisfy this standard, a plaintiff need not
‘forecast' evidence sufficient to prove the
elements of the claim. However, the complaint must allege
sufficient facts to establish those elements.”
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012) (citation omitted). “Thus, while a plaintiff does
not need to demonstrate in a complaint that the right to
relief is ‘probable, ' the complaint must advance
the plaintiff's claim ‘across the line from
conceivable to plausible.'” Id. (quoting
Twombly, 550 U.S. at 570). And the plaintiff
typically must do so by relying solely on facts asserted
within the four corners of his complaint. Zak v. Chelsea
Therapeutics Intern., Ltd., 780 F.3d 597, 606-07 (4th
federal claim fails because Fulton Bank is not a debt
collector and R&A's repossession activity is not
covered by § 1692e. Cooper's state law claims fail
because the defendants did not breach the peace.
Debt Collection Practices Act Claim
defendants argue that Cooper's FDCPA claim should be
dismissed for four reasons: (1) the defendants did not use
“false, deceptive, or misleading” practices when
attempting to repossess Cooper's camper; (2) Fulton Bank
is not a “debt collector” within the meaning of
the FDCPA; (3) repossession is not covered by § 1692e;
and (4) Cooper's claim is time-barred under §
1692k(d) of the FDCPA which requires claims to be brought
within a year of an alleged violation.
Fulton Bank is not a “debt collector” within the
meaning of the FDCPA
Bank argues that it is not a debt collector within the
meaning of § 1692e. Section 1692e of the FDCPA states in
relevant part that “[a] debt collector may not use any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C.
§ 1692e. To determine whether an entity is a debt
collector the court “must first determine whether the
[entity] satisfies one of the statutory definitions given in
the main text of § 1692a(6) before considering whether
that person falls into one of the exclusions contained in
subsections § 1692a(6)(A)-(F).” Henson v.
Santander Consumer USA, Inc., 817 F.3d 131, 136 (4th
Cir. 2016), aff'd, 137 S.Ct. 1718 (2017).
Because Fulton Bank does not satisfy any of the definitions
in § 1692a there is no need for the court to consider
the statute's exclusions.
FDCPA defines a debt collector as:
“[A]ny person who uses any instrumentality of
interstate commerce or the mails in any business the
principal purpose of which is the collection of any debts, or
who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due
another. Notwithstanding the exclusion provided by clause (F)
of the last sentence of this paragraph, the term includes any
creditor who, in the process of collecting his own debts,
uses any name other than his own which would indicate that a
third person is collecting or attempting to collect such
debts. For the purpose of section 1692f(6) of this title,
such term also includes any person who uses any
instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the enforcement of
15 U.S.C. § 1692a(6). Under this definition, courts have
held that “creditors are not liable under the
FDCPA.” Sterling v. Ourisman Chevrolet of Bowie
Inc., 943 F.Supp.2d 577, 586 (D. Md. 2013) (quoting
Eley v. Evans, 476 F.Supp.2d 531, 534 (E.D. Va.
2007)). Cooper asserts that Fulton Bank is a debt collector
because it attempted to repossess his camper. Not only is
such conduct not debt collection under § 1692e, it also
does not show that Fulton Bank's principal purpose is the
collection of debts. Cooper does not respond to this argument
in his opposition to Fulton Bank's motion to dismiss, nor
are there any allegations in his complaint, besides
unsupported legal conclusions, to undermine it.
Iqbal, 556 U.S. at 678 (internal quotations
omitted). (A complaint does not “suffice if it tenders