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Skibicki v. Plaza

United States District Court, D. Maryland, Southern Division

August 14, 2018

FAIRMONT PLAZA, et al., Defendants.


          Paul W. Grimm United States District Judge.

         Plaintiff Nicole Skibicki informed Defendant Fairmont Plaza (“Fairmont”) that Douglas Skibicki, a relative of hers, fraudulently induced her to sign mortgage documents and a related sales contract making her a co-owner of 4801 Fairmont Plaza, Unit 705, Bethesda, Maryland (the “Property”).[1] Am. Compl. ¶¶ 10, 14, 27-28, ECF No. 29.[2] Despite this knowledge, Fairmont, on its own and through its counsel, Defendant Ellen W. Throop, sent Ms. Skibicki two collection letters in mid-2013 for condominium fees and eventually successfully sued her in the District Court for Montgomery County to recover the unpaid fees. Id. ¶¶ 29-35.

         On April 14, 2017, Ms. Skibicki filed a complaint in the Circuit Court for Montgomery County against Fairmont, Throop, and her firm, Elmore, Throop & Young P.C. See Not. of Removal ¶ 1, ECF No. 1; Compl., ECF No. 2. Defendants removed to this Court, Not. of Removal, and Ms. Skibicki amended her Complaint, Am. Compl., ECF No. 29. In the Amended Complaint, Ms. Skibicki alleges that Defendants' attempts to collect condominium fees that she did not owe violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692; the Maryland Consumer Debt Collection Act (“MCDCA”), Md. Code Ann., Com. Law §§ 14-201 - 204; and the Maryland Consumer Protection Act (“MCPA”), Com. Law §§ 13-101 - 13-501. Am. Compl. ¶¶ 92-110. Ms. Skibicki also claims that she can recover under the theory of respondeat superior. Id. ¶¶ 111-15.

         Defendants have moved to dismiss Ms. Skibicki's claims, ECF No. 37, and the motion has been fully briefed, ECF Nos. 37-1, 38, 40. A hearing is not necessary. See Loc. R. 105.6. Defendants argue, inter alia, that Ms. Skibicki's claims are barred by res judicata and were filed outside the statute of limitations. See Defs.' Mem. 11-19. Because I find that res judicata precludes her claims for alleged violations for the collection of pre-foreclosure fees and her post-foreclosure collection claims are time barred, I will grant Defendants' motion and dismiss this case without reaching Defendants' remaining grounds for dismissal.

         State Court Proceedings

         The Property was foreclosed on by Ocwen Loan Servicing, on May 22, 2013, and the foreclosure sale was ratified on July 19, 2013. Am. Compl. ¶ 43; State Ct. Docket 374639V, Docket Entry 30, On August 23, 2013, Fairmont, through Throop, filed a complaint in the District Court of Maryland for Montgomery County, seeking to recover from Ms. Skibicki $15, 420.90 in unpaid condominium and other fees for the Property. Am. Compl. ¶¶ 57-59; see also State Ct. Docket 060200159742013. Fairmont sought to collect fees owed on the Property both before and after the foreclosure-specifically those that accrued from “April 2011 to the end of 2013.” Am. Compl. ¶¶ 44, 57-59. The State District Court transferred the case to the Circuit Court for Montgomery County when Ms. Skibicki requested a jury trial; Defendants then reduced their demand below the State Circuit Court jurisdictional minimum and objected to the jury trial request, noting that “the foreclosure had been ratified” and arguing that, as a result, Ms. Skibicki's “debt to [Fairmont] had been reduced and no longer exceeded $15, 000.” Cir. Ct. Appeal Op. & Or. 1-2, 4, ECF No. 46-1. The State Circuit Court then remanded the case to the State District Court. Following a trial on May 17, 2017 in which the only issue was Ms. Skibicki's liability for unpaid condominium and other fees that were owed before the foreclosure, judgment was entered against Ms. Skibicki, and Fairmont was awarded $11, 134.19 (inclusive of interest) and $2, 718 in other costs and fees. See Id. at 2; State Ct. Docket 060200159742013.

         Ms. Skibicki filed an appeal with the Circuit Court for Montgomery County. State Ct. Dockets 060200159742013 & 9608D. On January 26, 2018, the State Circuit Court affirmed the State District Court's ruling and found in Fairmont's favor on all counts. Cir. Ct. Appeal Op. & Or. 4-5; State Ct. Docket 9608-D, Entry No. 13. Ms. Skibicki petitioned for a writ of certiorari to the Maryland Court of Appeals, ECF No. 47-1; however, her petition was denied on April 24, 2018. State Ct. Docket 9608-D, Entry No. 15; see also ECF No. 48-1.

         Standard of Review

         Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Under this Rule, Skibicki's Complaint is subject to dismissal if it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). 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), and must state “a plausible claim for relief, ” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Rule 12(b)(6)'s purpose “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.” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). If an affirmative defense “clearly appears on the face of the complaint, ” however, the Court may rule on that defense when considering a motion to dismiss. Kalos v. Centennial Sur. Assocs., No. CCB-12-1532, 2012 WL 6210117, at *2 (D. Md. Dec. 12, 2012) (quoting Andrews v. Daw, 201 F.3d 521, 524 n. 1 (4th Cir. 2000) (citation and quotation marks omitted)). Affirmative defenses include res judicata and statute of limitations. Fed.R.Civ.P. 8(c)(1).

         Ms. Skibicki attached a Fee Statement and a Demand Notice to her Amended Complaint. ECF Nos. 29-6, 29-7. The Court “may consider the complaint itself and any documents that are attached to it.” CACI Int'l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009) (citations and quotation marks omitted); see Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). Where allegations in the Complaint conflict with an attached written instrument, “the exhibit prevails.” Fayetteville Inv'rs v. Commercial Builders, 936 F.2d 1462, 1465 (4th Cir. 1991).


         Res Judicata Res judicata “bars a party from suing on a claim that has already been litigated to a final judgment by that party or such party's privies and precludes the assertion by such parties of any legal theory, cause of action, or defense which could have been asserted in that action.” Reid v. New Century Mortg. Corp., No. AW-12-2083, 2012 WL 6562887, at *3 (D. Md. Dec. 13, 2012) (quoting Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009)) (citation and internal quotation marks omitted). When considering this defense, “a court may take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises no disputed issue of fact.” Kalos, 2012 WL 6210117, at *2 (quoting Andrews, 201 F.3d at 524 n.1). And, when a federal court litigant asserts res judicata based on a state court judgment, “[the] federal court must give to [the] state court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).

         Under Maryland law, res judicata, or claim preclusion, provides grounds for dismissal if a defendant establishes that “(1) the present parties are the same or in privity with the parties to the earlier dispute, (2) the claim presented is identical to the one determined in the prior adjudication, and (3) there has been a final judgment on the merits.” Capel v. Countrywide Home Loans, Inc., No. WDQ-09-2374, 2010 WL 457534, at *3 (D. Md. Feb. 3, 2010) (citing Anne Arundel Cty. Bd. of Educ. v. Norville, 887 A.2d 1029, 1037 (Md. 2005)). Defendants argue (and Plaintiff does not dispute) that they were the same parties in the underlying state court matter, No. 0602-0015974-2013, where Defendants sought to collect unpaid condominium fees from Ms. Skibicki. See Defs.' Mem. 12; Pl.'s Opp'n 10-12. Also, there is a final judgment on the merits, as Ms. Skibicki's petition for writ of certiorari was denied. Hawkins v. Citicorp Credit Servs., Inc., 665 F.Supp.2d 518, 524 (D. Md. 2009) (finding that, following judgment in creditor's favor, denial of a petition for writ of certiorari to the Maryland Court of Appeals constituted a final judgment).

         This leaves only whether the claims are “identical.” Under Maryland law, courts apply the transaction test to determine whether claims are identical. See Kent Cty. Bd. of Educ. v. Bilbrough, 525 A.2d 232, 238 (Md. 1987). “Under the transaction test, a ‘claim' includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the claim arose.” Boyd v. Bowen, 806 A.2d 314, 325 (Md. Ct. Spec. App. 2002) (citing FWB Bank v. Richman,731 A.2d 916, 928 (Md. 1999)). Notably, res judicata bars not only claims from the original litigation, but also other claims that could have been brought in the original litigation. Boyd, 806 A.2d at 325 (citing Gertz v. Anne Arundel Cnty.,661 A.2d 1157, 1161 (Md. 1995)). “[E]ven if a claim or defenses was not ...

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