United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
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”). Am. Compl. ¶¶ 10, 14, 27-28,
ECF No. 29. 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.
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.
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.
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
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
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.
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.
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.
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).
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).
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 ...