United States District Court, D. Maryland
GRIMM UNITED STATES DISTRICT JUDGE.
Fair Debt Collection Practices Act ("FDCPA") seeks
"to eliminate abusive debt collection practices by debt
collectors." 15 U.S.C. § 1692(e). Here, Plaintiff
Henry Saunders seeks more than $3.5 million in damages from
Capital One Bank (USA), N.A. ("Capital One") and
its chief financial officer, Stephen Crawford (collectively,
"Defendants"), for unspecified violations of the
FDCPA. See Compl. 6, ECF No. 1. Upon review, I agree
with Defendants that Mr. Saunders has failed to allege that
either Capital One or Mr. Crawford qualify as a "debt
collector" under the statute. Defendants' Motion to
Dismiss (ECF No. 12) is therefore granted.
issue before me at this stage of the proceedings is whether
to dismiss Mr. Saunders's Complaint under Rule 12(b)(6),
under which I must assume all facts in the Complaint are
true. See Neitzke v. Williams, 490 U.S. 319, 326-27
(1989). As it happens, this Complaint is fairly short on
facts - and what facts it does allege are not always
consistent with each other.
begin, the Complaint alleges that Mr. Saunders was
"obligated, or allegedly obligated, to pay a debt owed
or due" to "a creditor other than" Capital
One. Compl. ¶ 15. It states that this alleged debt
"arises from a transaction in which the money, property,
insurance, or services that are the subject of the
transaction were incurred primarily for personal, family, or
household purposes." Id. ¶ 16. The
Complaint does not specify the amount of the debt or explain
when or how it was incurred. And while at one point it
asserts the debt was "owed or due a creditor other
than" Defendants, id. ¶ 15, it later
alleges that Capital One, in its attempts to collect on the
debt, stated in the collection letter that Mr. Saunders
"owed an alleged debt to Capital One Bank,"
to the Complaint, Capital One sent its letter and a bill to
Mr. Saunders on August 15, 2018. Id. ¶ 18. Mr.
Saunders, in turn, mailed the company a "Notice of
Presentment" disputing the existence of a debt and
demanding verification under the FDCPA and Maryland law.
See Notice of Presentment, ECF No. 1-3. There, Mr.
Saunders ordered Capital One to "cease and desist any
and all collection activity, in any and every form (including
telephone contact)," until verification is provided.
Id. at 1. The letter purported to be a
"self-executing contract" and stated that the
company's failure to provide the requested verification
would operate to wipe away the debt. See Id. at 4
("Payment shall be deemed refused, and/or no obligation
exists, if'Lender' does not provide verification
and/or adequate assurance of the alleged debt as herein
requested . . . ."); id. at 6 ("Failure to
respond to this letter within five (5) days of receipt will
be taken as an administrative default as per the
Administrative Procedures Act of 1946.").
did not respond to Mr. Saunders's letter, see
Compl. ¶2O, so Mr. Saunders commissioned a notary public
to send a follow-up letter. See Id. ¶2l. The
notary's letter, addressed to Capital One Financial
Corporation's chief financial officer, was styled as a
"Notice of Dishonor" and purported to give the
company 10 days to respond to Mr. Saunders's "Notice
of Presentment," or else the company would be estopped
"as to the matter at hand" and would be liable for
thousands of dollars in damages under various federal laws.
See Notice of Dishonor 1-2, ECF No. 1-4. Later,
after some time passed without a response from the Capital
One, the notary sent another letter (under the header
"Certificate of Protest") asserting that the
company "has dishonored this Notary's Notice of
Dishonor by non-response/nonperformance, and has therefore
stipulated, confessed, and agreed to all terms and conditions
stated in Presentment and Notice of Dishonor."
Certificate of Protest, ECF No. 1-5. The letter alleged that,
as a consequence of the "dishonor," the company was
liable to Mr. Saunders for $3, 543, 339. Id. at 1.
Saunders filed his Complaint in this Court on October 17,
2018, alleging Defendants "violated one or more
provisions of the FDCPA." Compl. ¶ 27. Defendants
soon afterward moved to dismiss the Complaint under Rule
12(b)(6), arguing it "plainly fails to state a claim
upon which relief can be granted" because "neither
Capital One nor Crawford are 'debt collectors' under
the FDCPA." Defs.' Mem. 5, ECF No. 13. The motion is
fully briefed. See ECF Nos. 13, 18, 19. A hearing is
not required. See Loc. R. 105.6.
12(b)(6) of the Federal Rules of Civil Procedure authorizes
parties in a civil action to seek the dismissal of a claim or
complaint on the grounds that it fails to state a claim upon
which relief can be granted. See Fed. R. Civ. P.
12(b)(6); Tucker v. Specialized Loan Servicing, LLC,
83 F.Supp.3d 635, 647-48 (D. Md. 2015). This rule'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." Presley
v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006). To survive a motion to dismiss, 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,
679 (2009). Where, as here, the plaintiff has filed a
pleading without the aid of counsel, the court must construe
the pleading liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam); White v. White, 886
F.2d 721, 722-23 (4th Cir. 1989). Liberal construction,
though, does not mean a court may overlook a clear failure in
the pleading to allege facts that set forth a cognizable
claim. See Weller v. Dep 't of Soc. Servs., 901
F.2d 387, 391 (4th Cir. 1990). "Threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Iqbal,
556 U.S. at 678. "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." Id.
when a defendant moves to dismiss a complaint under Rule
12(b)(6), courts are limited to considering the sufficiency
of allegations set forth in the complaint and the
'documents attached or incorporated into the
complaint.'" Zak v. Chelsea Therapeutics
Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015)
(quoting E.I. du Pont de Nemours & Co. v. Kolon
Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011)). Where,
as here, a plaintiff has attached exhibits to the complaint,
these exhibits are considered part of the pleading. See
Fayetteville Inv'rs v. Commercial Builders, Inc.,
936 F.2d 1462, 1465 (4th Cir. 1991); Bryant v. Wash. Mut.
Bank, 524 F.Supp.2d 753, 757 n.4 (W.D. Va. 2007),
aff'd, 282 Fed.Appx. 260 (4th Cir. 2008).
Saunders has brought this case under the FDCPA, a statute
that "regulates interactions between consumers and debt
collectors by imposing affirmative statutory obligations upon
debt collectors and proscribing certain abusive
conduct." Russell v. Absolute Collection Servs.,
Inc., 763 F.3d 385, 388-89 (4th Cir. 2014). "Debt
collectors who violate the statute are liable to the debtor
for actual damages, costs, and reasonable attorney's
fees." Id. at 389 (citing 15 U.S.C. §
l692k(a)(1)). "To state a claim for relief under the
FDCPA, a plaintiff must allege that '(1) he has been the
object of collection activity arising from consumer debt, (2)
the defendant is a debt collector as defined by the FDCPA,
and (3) the defendant has engaged in an act or omission
prohibited by the FDCPA.'" Smith v. Cohn,
Goldberg & Deutsch, LLC, 296 F.Supp. 3D 754, 758 (D.
Md. 2017) (quoting Webber v. Maryland, No.
RDB-16-2249, 2017 WL 86015, at *4 (D. Md. Jan. 10, 2017)).
argue the Complaint fails to plead the second requirement.
See Defs.' Mem. 4. They point, in particular, to
Paragraph 18 of the Complaint, which alleges that "[i]n
connection with the collection of an alleged debt, Capital
One Bank, on or around August 15, 2018, sent a letter and
bill to Petitioner, and at such time, claiming that