United States District Court, D. Maryland
ROBERT L. BENDER and DEBORAH A. BENDER, Plaintiffs,
ELMORE & THROOP, P.C. Defendant.
Catherine C. Blake United States District Judge.
a case about consumer debt-collection practices. The
plaintiffs own a home in Bel Air, Maryland, that sits within
a homeowners' association called "Country Walk
Community Association, Inc." (hereafter "Country
Walk"). Am. Compl. ¶ 11. Defendant Elmore &
Throop, P.C. is a law firm retained by Country Walk to
collect debts owed to it by constituent homeowners,
including, as relevant here, delinquent assessment payments.
Am. Compl. ¶¶ 17-18. In this case, the plaintiffs
say that the defendant's efforts to collect supposedly
outstanding assessment payments violates the Fair Debt
Collection Practices Act (hereafter "FDCPA") in two
respects. First, they say, the defendant unlawfully
communicated with the plaintiff about the debt at issue after
being advised that the plaintiffs disputed the debt and
requested that the defendant cease communication. Second, the
defendant allegedly attempted to collect attorney's fees
and other collection charges that were not authorized by the
agreement between the plaintiffs and Country Walk. At issue
here is the defendant's motion .to dismiss the amended
complaint, or in the alternative, for summary judgment. (ECF
No. 12.) The defendant contends that dismissal under Rule
12(b)(6) is warranted because the plaintiffs have failed to
comply with the applicable one-year statute of limitations.
Even if their claims were not time barred, the defendant
asserts, it complied with the FDCP A and is thus entitled to
summary judgment. Because the plaintiffs did not bring their
claims within a year of the alleged violations of the FDCP A,
the defendant's motion to dismiss will be granted.
plaintiffs have owned their home at 546 Country Ridge Circle
in Bel Air, Maryland, since 1996. Am. Compl. ¶ 11. The
property is located within Country Walk. Id. On
April 16, 2016, the plaintiffs found a letter dated February
26, 2016, from Elmore & Throop, P.C. taped to their door,
claiming that they had failed to pay $77.09 in assessment
charges that had accrued from October 1, 2015, through
February 29, 2016, and stating that they were now obligated
to pay $1048.60 (or $1, 096.52) to satisfy their debt and to
cover fees, costs, and attorney's fees incurred by their
delinquency. Am. Compl. ¶¶ 21-22. A series of
communications then ensued between Mr. Bender and Elmore
& Throop, P.C. that provide the factual predicate for
April 21, 2016, Mr. Bender responded to the posted letter,
explaining that the outstanding assessment payments had, in
fact, been paid on time, and enclosing cancelled checks
showing as much. Am. Compl. ¶ 24. On April 25, 2016, the
Benders received a letter from Ms. Elmore acknowledging that
the October 2015 and January 2016 quarterly assessment
payments had been received but claiming that late fees,
interest, costs, and attorney's fees remained
outstanding. Am. Compl. ¶ 25. There occurred another
round of correspondence in May 2016, in which Mr. Bender sent
a letter to Elmore & Throop insisting that, even
according to the defendant's own records, the
Benders' assessment payments were timely, and the
defendant responded with a request for payment of a balance
owed. Am. Compl. ¶¶ 27-28. Mr. Bender's next
letter, delivered May 18, 2016, included a request that
Elmore & Throop cease communication with the Benders
about the supposed outstanding debt. Am. Compl. ¶ 29.
Ostensibly, Elmore & Throop complied with this request
because the next event in the alleged timeline occurred in
January 2017, when Mr. Bender, apparently still
"[f]rustrated with what was happening," attended
the annual HOA meeting. Am. Compl. ¶ 30. Mr. Bender
submitted his next quarterly assessment payment at the
meeting and yet, for untold reasons, was directed to leave by
the president of the property management company (MRA
Property Management, Inc.) and was delivered that evening a
"banning letter" prohibiting him from returning to
the annual meeting's location for a year. Am. Compl.
¶¶ 31-34. There are no additional details in the
complaint, nor the subsequent briefing, about what transpired
at the annual meeting.
additional dates are relevant to the present motion. On
February 7, 2017, -Ms. Elmore wrote to the Benders
acknowledging receipt of the assessment payment made at the
annual meeting but stating that they still owed outstanding
debt. Am. Compl. ¶ 35. In March 2017, Mr. Bender
reiterated that he disputed the debt and asked again that
communications about the debt cease. Am. Compl. ¶ 36.
The Benders then received, on March 14, 2017, a letter
updating their account ledger in response to a verification
request they did not make. Am. Compl. ¶¶ 37-38.
Nine months went by. In January 2018, Mr. Bender commenced an
effort to attend the 2018 annual HOA meeting (from which he
was still banned), which entailed calling Ms. Throop to
discuss his options. Am. Compl. ¶ 42. It is alleged that
on the phone call about Mr. Bender's ability to attend
the meeting, Ms. Throop remarked, "well this whole thing
would not have happened if you would just pay your
bills." Am. Compl. ¶ 44. Mr. Bender insisted they
were current, and Ms. Throop went over the Benders'
updated account ledger, informing Mr. Bender that there was
now a lien against the property. Am. Compl. ¶¶
45-48. In February 2018, the Benders received another account
verification notice listing the outstanding debt. The
plaintiffs filed this action on April 5, 2018. (Compl, ECF
plaintiffs make two arguments for relief under the FDCPA.
First, they contend that the January 2018 phone call with Ms.
Throop and the February 2018 letter containing an updated
account ledger violate 15 U.S.C. § l692c(c) and its
general prohibition on communications with consumer debtors
after a written cease and desist request. Am. Compl. ¶
95. Second, they maintain that the February 2018 letter
constitutes a false or misleading representation and an
unfair debt collection practice under 15 U.S.C. §
I692e-f, in part because it includes an attempt to collect
undue interest, late fees, attorney's fees, and costs not
provided for in the agreement between the plaintiff and
Country Walk. In its motion to dismiss the amended complaint,
or in the alternative, motion for summary judgment, the
defendant contends that the plaintiffs' claims are barred
by the FDCPA's one-year statute of limitations and that,
at all times, it complied with the FDCPA. (Def.'s P.
& A. Mot. Dismiss / Mot. Summ. J. at p. 1, ECF No. 12-1.)
Standard of Review
defendant has moved to dismiss for failure to state a claim
under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for
summary judgment under Fed.R.Civ.P. 56. A court considers
only the pleadings when deciding a Rule 12(b)(6) motion.
Where the parties present matters outside of the pleadings
and the court considers those matters, the motion is treated
as one for summary judgment. See Fed. R. Civ. P.
12(d); Gadsby by Gadsby v. Grasmick, 109 F.3d 940,
949 (4th Cir. 1997); Paukstis v. Kenwood Golf &
Country Club, Inc., 241 F.Supp.2d 551, 556 (D. Md.
2003). Because this case is decided on the pleadings,
Fed.R.Civ.P. 12(b)(6) provides the operative standard of
review and no Rule 12(d) conversion to summary judgment is
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 plaintiffs
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. Zakv. Chelsea Therapeutics Intern.,
Lid., 780 F.3d 597, 606-07 (4th Cir. 2015). While the
inquiry is centered on the sufficiency of the complaint, in
"relatively rare circumstances where facts sufficient to
rule on an affirmative defense are alleged in the complaint,
[an affirmative] defense may be reached by a motion to
dismiss filed under Rule 12(b)(6)." Goodman v.
Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007).
debt-collection practices claims brought under the FDCPA must
be filed within one year of the alleged violation. 15 U.S.C.
§ l692k(d). This case was filed on April 5, 2018, which
means, to be actionable, the defendant's alleged actions
must have occurred on or after April 5, 2017. With this much
the plaintiffs agree. (See Pis.' Resp.
Def.'s Mot. Dismiss / Mot. Summ. J. at p. 25, ECF No.
11). Two events in the timeline delineated above occurred
within the actionable window: (1) the January 2018 telephone
call between Mr. Bender and Ms. Throop and (2) the final
account verification letter sent from Elmore & Throop to
the Benders in February 2018. Id. at pp. 25-27.
Thus, the crux of the present timeliness dispute is whether
the alleged actions taken by the defendant within the
actionable period constitute independent violations of the
FDCPA or whether they are merely subsequent iterations of the
same allegedly unlawful debt collection practice initiated at
a date preceding the actionable window.
Fourth Circuit has not decided whether communications or
FDCPA violations that occur outside the limitations period
bar consumer plaintiffs from proceeding on subsequent but
related debt-collection communications. But courts in this
district have generally followed the rule, apparently first
articulated in Fontell v. Hassett, that "the
limitations period for FDCPA claims begins from the date of
the first violation, and subsequent violations of the same
type do not restart the limitations period." 970
F.Supp.2d 395, 404 (D. Md. 2012); Bey v. Shapiro Brown
& Alt, LLP,997 F.Supp.2d 310, 316 (D. Md. 2014);
Brooks-McCollum v. Aspen Prop. Mgrnt. Co., 551
Fed.Appx. 677, 680 (4th Cir. 2014); Costley v. Bank of
America, N.A., 2017 WL 5564641, at *6-7 (D. Md. Nov. 20,
2017); McGhee v. JP Morgan Chase Bank, N.A., 2013 WL
4495797, at' *7 n.10 (D. Md. Aug. 20, 2013).
Fontell similarly involved an HOA management
company's repeated attempts to collect assessment
payments and ...