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Cooper v. Fulton Bank, N.A.

United States District Court, D. Maryland

November 15, 2017

James E. Cooper
v.
Fulton Bank, N.A., et al.

          MEMORANDUM

          Catherine C. Blake United States District Judge

         The 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.

         Cooper 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.[1]

         Background

         In 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).[2] 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).

         On 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.

         Standard of Review

         To 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 Cir. 2015).

         Analysis

         Cooper's 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.

         I. Fair Debt Collection Practices Act Claim

         The 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.

         A. Fulton Bank is not a “debt collector” within the meaning of the FDCPA

         Fulton 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.

         The 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 security interests.”

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 ...


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