United States District Court, D. Maryland
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.
Gloria Cooke has filed this action against Carrington
Mortgage Services (“Carrington”) alleging various
federal and state statutory violations in connection with
Carrington's servicing of Cooke's mortgage loan.
Pending before the Court is Carrington's Motion to
Dismiss the Amended Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). Having reviewed the submitted
materials, the Court finds that no hearing is necessary. D.
Md. Local R. 105.6. For the reasons set forth below, the
Motion to Dismiss is GRANTED IN PART and DENIED IN PART.
purposes of the Motion, the Court accepts the facts asserted
in Cooke's Amended Complaint.
2003, Cooke obtained a mortgage loan from Countrywide Home
Loans, Inc., (“Countrywide”). The loan was later
assigned to Bank of America (“BOA”). After Cooke
missed payments or made late payments on her loan in 2014,
BOA sent a Notice of Intent to Foreclose to Cooke on July 16,
2014. In the ensuing months, Cooke and BOA tried but failed
to negotiate a loan modification agreement. Then, in December
2015, BOA transferred Cooke's mortgage account to
Carrington, a loan servicer. According to BOA, Cooke's
mortgage loan was in default at the time of the transfer.
about December 15, 2015, Cooke received an official Notice of
Servicing Transfer from Carrington. Also contained in the
Notice was a description of Cooke's rights under the Fair
Debt Collection Practices Act, including that Cooke had 30
days to request verification or validation of the debt. A
week later, on December 22, 2015, Carrington sent to Cooke a
Notice of Intent to Foreclose, which was accompanied by a
letter stating that Cooke's loan could be accelerated and
sold at a foreclosure sale if Cooke failed to cure the
default within 45 days.
February 10, 2016, Shapiro & Brown, LLP
(“S&B”) sent a letter to Cooke stating that
it had been retained by Carrington to enforce the deed of
trust; that as of February 9, 2016, the debt was $25, 045.69;
that the creditor for the mortgage loan was BOA; and that it
would cease foreclosure activities if Cooke disputed the
debt. The next day, February 11, 2016, Carrington retained
S&B as the substitute trustee in order to enforce the
deed of trust. In the absence of any communication from Cooke
disputing the debt, S&B filed an Order to Docket
Foreclosure on March 7, 2016. Five days later, on March 12,
2016, Cooke sent S&B a letter disputing the debt and
requesting that it be verified. In response, S&B sent a
letter to Cooke dated April 12, 2016 accompanied by a copy of
the Promissory Note, a copy of the Deed of Trust, a copy of
the Assignment of Deed of Trust and a Statement of Debt
identifying the payoff amount as $29, 489.31.
continued to service Cooke's mortgage loan after S&B
filed the Order to Docket Foreclosure. Between July 2016 and
August 2017, Cooke sent several written inquiries to
Carrington regarding her mortgage loan. Specifically, Cooke
sent letters to Carrington on July 2, 2016, October 27, 2016,
December 22, 2016, March 6, 2017, April 6, 2017, April 29,
2017, June 12, 2017, and August 24, 2017. In all but the
October 2016 and March 2017 letters, Cooke disputed various
charges that appeared in her mortgage statements from
Carrington and requested information about the charges in her
letters. In addition, in her letters dated July 2, 2016,
October 27, 2016, March 6, 2017, April 6, 2017, and August
24, 2017, Cooke requested information regarding the Note and
asked that Carrington provide her with a certified copy of
the Note. Cooke also challenged Carrington's ability to
enforce the Note in her letters dated April 6, 2017 and
August 24, 2017. Carrington responded to some of Cooke's
inquiries but failed to respond to others. Cooke was not
satisfied with Carrington's responses to her multiple
inquiries and with its overall servicing of her loan.
December 19, 2016, Cooke filed the present case in the
Circuit Court for Prince George's County, Maryland, which
Carrington timely removed to this Court. In her Amended
Complaint, Cooke alleges violations of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§§ 1692-1692p (2012); the Maryland Consumer Debt
Collection Practices Act (“MCDCA”), Md. Code
Ann., Com. Law §§ 14-201 to 14-204 (West 2010); the
Maryland Consumer Protection Act (“MCPA”), Md.
Code Ann., Com. Law §§ 13-101 to 13-501; the Real
Estate Settlement Procedures Act (“RESPA”), 12
U.S.C. §§ 2601-2617 (2012); and the Fair Credit
Reporting Act (“FCRA”), 15 U.S.C. §§
Motion to Dismiss, Carrington argues that (1) the ongoing
state foreclosure proceeding bars Cooke's FDCPA and MCDCA
claims; (2) the FDCPA claims should be dismissed because
Cooke makes only conclusory allegations without factual
support; (3) the MCDCA claims should be dismissed because
Cooke fails plausibly to allege that Carrington did not have
a right to collect on the Note; (4) the MCPA claims should be
dismissed because Cooke fails to allege sufficiently a
violation of the provision of the MCPA requiring a response
to written complaints within 15 days, including by failing to
plead an actual injury or loss; (5) the RESPA claims should
be dismissed because Cooke fails plausibly to allege that her
letters constituted Qualified Written Requests such that
RESPA's requirements were triggered; and (6) the FCRA
claims should be dismissed because Cooke fails plausibly to
allege a violation of the FCRA.
defeat a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the complaint must allege enough facts to
state a plausible claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible
when the facts pleaded allow “the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Legal conclusions or
conclusory statements do not suffice. Id. The Court
must examine the complaint as a whole, consider the factual
allegations in the complaint as true, and construe the
factual allegations in the light most favorable to the
plaintiff. Albright v. Oliver, 510 U.S. 266, 268
(1994); Lambeth v. Bd. of Comm'rs of Davidson
Cty., 407 F.3d 266, 268 (4th Cir. 2005).
The State Foreclosure Proceeding
first argues that Cooke's FDCPA and MCDCA claims must be
dismissed because they contest the right to foreclose, in
circumvention of the exclusive state court foreclosure
process and state law rules governing such challenges.
See Md. R. 14-211. This argument fails because
Cooke's FDCPA and MCDCA claims do not seek injunctive
relief barring foreclosure; rather they seek damages relating
to the manner in which Carrington attempted to collect the
debt owed by Cooke. “When a[n] FDCPA claim concerns
collection activities, a[n] FDCPA claim does not arise out of
the transaction creating the debt.” Senftle v.
Landau, 390 F.Supp.2d 463, 469-70 (D. Md. 2005) (holding
that an FDCPA claim “pertaining to the manner in which
[the defendant] collected [the] debt” was not an appeal
of the state court determination that the plaintiff owed the
underlying debt). See also Bauman v. Bank of Am.,
N.A., 808 F.3d 1097, 1102 (6th Cir. 2015) (holding that
the lenders' claim on the underlying mortgage was not a
compulsory counterclaim in the debtor's FDCPA action
because an FDCPA claim “raises different issues of law
from those that a foreclosure action would present” and
“does not focus on the validity of the debt, but
instead on the use of unfair methods to collect it”)
(citations omitted); Peterson v. United Accounts,
Inc., 638 F.2d 1134, 1136-37 (8th Cir. 1981) (holding
that an FDCPA claim, which is brought to enforce federal
policy regulating debt collection practices, is not a
compulsory counterclaim to a debt collection action).
Accordingly, the FDCPA and MCDCA claims are distinct from
foreclosure claims and are properly before the Court.
Count One of the Amended Complaint, Cooke alleges that
Carrington committed multiple violations of the FDCPA,
including violations of 15 U.S.C. §§ 1962e, 1692f,
and 1692g. “The FDCPA protects consumers from abusive
and deceptive practices by debt collectors, and protects
non-abusive debt collectors from competitive
disadvantage.” United States v. Nat'l Fin.
Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996). To state
a claim under the FDCPA, Cooke must allege that (1) she has
been the object of collection activity arising from consumer
debt; (2) Carrington is a debt collector as defined by the
FDCPA; and (3) Carrington has engaged in an act or omission
prohibited by the FDCPA. Ademiluyi v. PennyMac Mortg.
Inv. Trust Holdings I, LLC, 929 F.Supp.2d 502, 524 (D.
Md. 2013) (citations omitted); see also Levins v.
Healthcare Revenue Recovery Grp. LLC, 902 F.3d 274, 280
(3d Cir. 2018). Carrington does not dispute the first two
elements and instead argues generally that Cooke “makes
conclusory statements without factual support” and thus
fails to allege sufficient facts to demonstrate that it
engaged in conduct prohibited by the FDCPA.
only alleged FDCPA violation against which Carrington offers
a specific argument is Cooke's claim that Carrington
violated 15 U.S.C. § 1692g by contradicting or
overshadowing her rights to dispute the debt. Section 1692g
provides that a debt collector must disclose certain
information in its initial communication to a debtor or
within five days of that communication. 15 U.S.C. §
1692g. Specifically, a debt collector must send the consumer
a written debt validation notice containing the amount of the
debt, the name of the creditor to whom the debt is owed, and
“[a] statement that unless the consumer, within thirty
days after receipt of the notice, disputes the validity of
the debt, or any portion thereof, the debt will be assumed to
be valid by the debt collector.” 15 U.S.C. §
1692g(a). To prevent debt collectors from engaging in
collection practices that might confuse debtors about their
debt validation rights, § 1692g also bars sending a
technically compliant notice, but then
“overshadowing” it with other communications:
“Any collection activities and communication during the
30-day [validation] period may not overshadow or be
inconsistent with the disclosure of the [debtor's] right
to dispute the debt.” Id. § 1692g(b).