United States District Court, D. Maryland
K. BREDAR, CHIEF JUDGE
Ellis (“Plaintiff”) filed suit against Palisades
Acquisition LLC and Protas, Spivok & Collins, LLC
(“Defendants”) alleging that Defendants attempted
to collect a debt from Plaintiff that he did not owe and,
consequently, violated the Fair Debt Collection Practices Act
and Maryland state law. Plaintiff seeks actual, statutory,
and punitive damages, as well as costs and reasonable
attorney's fees. Defendants moved to dismiss and,
alternatively, for summary judgment. (ECF No. 6.) Plaintiff
amended his complaint. Defendants again moved to dismiss and,
alternatively, for summary judgment. (ECF No. 11.) The
motions have been fully briefed, and no hearing is required.
See Local Rule 105.6 (D. Md. 2016). For the reasons
set forth below, the Court will deny without prejudice
Defendants' motion for summary judgment. And, the Court
will deny in part and grant in part Defendants' motion to
dismiss the amended complaint.
motion to dismiss stage, the Court takes the allegations of
the complaint as true, see, e.g., Ibarra v.
United States, 120 F.3d 472, 474 (4th Cir. 1997), and
construes any disputed allegations in the light most
favorable to the plaintiff, In re Royal Ahold N.V. Secs.
& ERISA Litig., 351 F.Supp.2d 334, 376 n.32 (D. Md.
2004) (“[R]esolution of [a] factual dispute is
inappropriate when ruling on a motion to dismiss . . .
.”). Here, the Court summarizes Plaintiff's
had a credit card with Providian Bank. Plaintiff used the
credit card “primarily for personal, family or
household purposes.” (Am. Compl. ¶ 8, ECF No. 9.)
Plaintiff incurred a debt on this credit card. (Id.)
In 2005, Centurion Capital Corp., an assignee of Providian
Bank, obtained a judgment against Plaintiff for payment of
the debt in Maryland state court. (Id. ¶ 9.)
Palisades is an entity that focuses on collecting, by mail or
telephone, debts that are in default. (Id. ¶
5.) In April 2007, Centurion assigned the debt to Defendant
Palisades. (Id. ¶ 10.) Defendant Palisades
retained Asset Acceptance to collect the Debt. (Id.
September 2011, Plaintiff satisfied the debt in full by
paying Asset Acceptance. (Id. ¶ 12; Compl. Exh.
A, 9/16/11 Ltr., ECF No. 1-1.) Plaintiff's communications
with Asset Acceptance referred to his debt with Providian but
made no mention of Palisades. (Am. Compl. ¶ 13.)
Plaintiff alleges that “Defendants knew, or should have
known, that the Debt was paid in full by Plaintiff in
September 2011.” (Id. ¶ 14.) But,
Defendant Palisades did not file a satisfaction in Maryland
state court. (Id. ¶ 15.)
Palisades retained Defendant Protas, a law firm, to collect
the debt (now for the second time). (Id. ¶ 16.)
Like, Defendant Palisades, Defendant Protas focuses on
collecting, by mail or telephone, debts that are in default.
(Id. ¶ 6.) Starting in December 2017,
Defendants attempted to collect the allegedly satisfied debt
by serving bank levies and wage garnishment on third parties,
including Plaintiff's prior employer. (Id.
¶ 17-21.) It appears that Plaintiff did not inform
Palisades of its mistake because “Plaintiff was unaware
that the debt at issue was related to the already-paid
Providian account.” (Id. ¶ 26.) Instead,
Plaintiff tried to stop the collection efforts by filing, on
December 13, 2017, a Motion for an Exemption from
Garnishment, which the Maryland state court granted.
(Id. ¶ 27, 28.)
January 26, 2018, in the same state court action, Defendants
filed a Request for Judgment-Garnishment, meaning a request
that a judgment be entered to facilitate the transfer of
funds from Plaintiff to Defendants. (Id. ¶
31-32.) This filing, like the others filed by Defendants in
state court, was signed by Defendant Protas, pursuant to
Maryland Rule 1-311,  indicating that to the best of its
knowledge, information, and belief, there were good grounds
to make the filings. (Id. ¶ 22, 33.) As a
result of the request, funds were taken from Plaintiff's
bank account; his account was overdrawn; the bank charged him
fees for the overdrawn account; and his account was closed.
(Id. ¶ 35-38.) Plaintiff has not been
reimbursed for this withdrawal. (Id. ¶ 39.)
December 19, 2018, Plaintiff filed suit in this Court.
(Compl., ECF No. 1.) Plaintiff alleges that he
“suffered actual damages in the form of loss of access
to his funds, lost wages, bank charges, closure of his bank
account, and emotional distress, including humiliation,
embarrassment, stress, anxiety, and loss of sleep.”
(Am. Compl. ¶ 45.)
amended complaint includes four counts. Plaintiff claims that
Defendants (1) violated three provisions of the Fair Debt
Collection Practices Act, (2) violated four provisions of the
Maryland Consumer Debt Collection Act, (3) violated one
provision of the Maryland Consumer Protection Act, and (4)
committed an abuse of process under Maryland state law.
Defendants move to dismiss the amended complaint and, in the
alternative, for summary judgment. The Court turns to summary
Motion for Summary Judgment
moving for summary judgment, Defendants attach eight
exhibits. These exhibits include the state court case docket
sheet, state court filings, the September 2011 letter, and
affidavits from the Defendants. Plaintiff opposes
consideration of summary judgment and attaches an affidavit
pursuant to Federal Rule of Civil Procedure 56(d). Because
considering summary judgment would be premature, the Court
will deny without prejudice Defendants' motion for
56(d) requires ‘that summary judgment be refused where
the nonmoving party has not had the opportunity to discover
information that is essential to his opposition.'”
Tyree v. United States, 642 Fed.Appx. 228, 230 (4th
Cir. 2016) (quoting Nguyen v. CAN Corp., 44 F.3d
234, 242 (4th Cir. 1995)). Rule 56(d) motions “are
‘broadly favored and should be liberally granted'
in order to protect non-moving parties from premature summary
judgment motions.” McCray v. Md. Dep't of
Transp., Md. Transit Admin., 741 F.3d 480, 484 (4th Cir.
2014) (quoting Greater Balt. Ctr. for Pregnancy Concerns,
Inc. v. Mayor & City Council of Balt., 721 F.3d 264,
281 (4th Cir. 2013)). “A court should hesitate before
denying a Rule 56(d) motion when the nonmovant seeks
necessary information possessed only by the movant.”
Pisano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014).
“But a court may deny a Rule 56(d) motion when the
information sought would not by itself create a genuine issue
of material fact sufficient for the nonmovant to survive
summary judgment.” Id.
raise the issue that discovery is needed, the summary
judgment opponent typically must file a Rule 56(d) affidavit
explaining the specific reasons the opponent cannot present
the facts essential to its opposition without the needed
discovery, Sager v. Hous. Comm'n of Anne Arundel
Cty., 855 F.Supp.2d 524, 542 (D. Md. 2012), and listing
the specific evidence that the opponent seeks to obtain,
Radi v. Sebelius, 434 Fed.Appx. 177, 178 (4th Cir.
2011). The affidavit “cannot conclusorily state that
additional discovery is required” and, instead,
“must identify the probable facts not yet
available.” Ahmed v. Salvation Army, Civ. No.
CCB-12-707, 2012 WL 6761596, at *10 (D. Md. Dec. 28, 2012),
aff'd, 549 Fed.Appx. 196 (4th Cir. 2013) (per
curiam). If the nonmovant successfully shows through its Rule
56(d) affidavit that for specified reasons it cannot present
facts essential to justify its ...