United States District Court, D. Maryland
THEODORE D. CHUANG, JUDGE
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.
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
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.
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
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.
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
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.
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).
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 ...