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Cooke v. Carrington Mortgage Services

United States District Court, D. Maryland

July 17, 2019

GLORIA COOKE, Plaintiff,
v.
CARRINGTON MORTGAGE SERVICES, Defendant.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, JUDGE

         Plaintiff Gloria Cooke has filed this action against Carrington Mortgage Services ("Carrington") alleging various federal and state statutory violations in connection with Carrington's efforts to foreclose on Cooke's mortgage. Pending before the Court is Carrington's second Motion to Dismiss, ECF No. 46, in which Carrington seeks partial dismissal of the Second Amended Complaint filed by Cooke. 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.

         BACKGROUND

         The factual background is set forth in the Court's Memorandum Opinion on Carrington's first Motion to Dismiss and is incorporated by reference. See Cooke v. Carrington Mortg. Servs., No. TDC-18-0205, 2018 WL 6323116, at *l-2 (D. Md. Dec. 3, 2018). The Court therefore summarizes only the procedural history and new allegations relevant to the present Motion.

         On December 19, 2016, Cooke filed the present case in the Circuit Court for Prince George's County, Maryland. After Carrington timely removed the action to this Court, Cooke filed an Amended Complaint alleging 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 2013); 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. §§ 1681-1681x (2012). On May 18, 2018, Carrington filed a Motion to Dismiss the Amended Complaint for failure to state a claim.

         On December 3, 2018, the Court issued a Memorandum Opinion granting in part and denying in part Carrington's first Motion to Dismiss. The Court dismissed Cooke's FDCPA claims under 15 U.S.C. §§ 1692e(5), 1692e(10), and 1692f, as well as her MCDCA claims and her MCPA claims based on the MCDCA. The Court denied the Motion as to the remaining counts.

         On December 17, 2018, Cooke filed a Notice of Intent to File a Motion for Reconsideration and/or a Motion for Leave to File a Second Amended Complaint pursuant to the Court's Case Management Order. After a conference with counsel for both parties, the Court granted Cooke leave to file a Second Amended Complaint but ordered that "[t]he amendments shall be limited to the counts that were dismissed in the Court's December 3, 2018 Memorandum Opinion and the deficiencies identified therein." ECF No. 39. Similarly, the Court ordered that any subsequent motion to dismiss filed by Carrington be limited to Cooke's new allegations.

         Cooke filed her Second Amended Complaint on January 31, 2019. The Second Amended Complaint asserts additional bases for liability against Carrington under the FDCPA, MCDCA, and RESPA.

         DISCUSSION

         In its second Motion to Dismiss, Carrington argues that (1) the amended FDCPA claims should be dismissed because it is not a "debt collector" subject to the FDCPA and because Cooke fails to allege that it engaged in conduct prohibited by the FDCPA; (2) the amended MCDCA claims should be dismissed because Cooke fails to allege plausibly that Carrington did not have a right to foreclose on her property or that it acted with the required knowledge; and (3) the amended RESPA claim should be stricken because it is outside the scope of the Court's order granting Cooke leave to file her Second Amended Complaint.

         I. Legal Standard

         To 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).

         II. FDCPA

         In Count One of the Second Amended Complaint, Cooke asserts additional bases for liability against Carrington under the FDCPA. The FDCPA is violated when (1) the plaintiff has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector under the FDCPA; and (3) the defendant has engaged in an act or omission in violation of the FDCPA. Stewart v. Bierman, 859 F.Supp.2d 754, 759 (D. Md. 2012), aff'd sub. nom.,Lembach v. Bierman,528 Fed.Appx. 297 (4th Cir. 2013). Carrington does not dispute the first element but argues that Cooke's amended FDCPA ...


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