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Ellis v. Palisades Acquisition XVI LLC

United States District Court, D. Maryland

July 26, 2019

DONALD ELLIS, Plaintiff
v.
PALISADES ACQUISITION XVI LLC, and, PROTAS, SPIVOK & COLLINS, LLC, Defendants

          MEMORANDUM

          JAMES K. BREDAR, CHIEF JUDGE

         Donald 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.

         I. Background

         At the 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 allegations.

         Plaintiff 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.)

         Defendant 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. ¶ 11.)

         In 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.)

         Defendant 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.)

         On 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, [1] 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.)

         On 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.)

         II. Analysis

         The 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 judgment first.

         A. Motion for Summary Judgment

         In 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 summary judgment.

         “Rule 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.

         To 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 ...


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