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Bender v. Elmore & Throop, P.C.

United States District Court, D. Maryland

March 24, 2019

ELMORE & THROOP, P.C. Defendant.


          Catherine C. Blake United States District Judge.

         This is 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.


         The 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 this lawsuit.

         On 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.

         A few 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 No. 1.)

         The 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.)


         I. Standard of Review

         The 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 necessary.

         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 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).

         II. Discussion

         Wrongful 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.

         The 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 ...

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