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Proctor v. Ally Financial Inc.

United States District Court, D. Maryland

August 2, 2019

ALLY FINANCIAL INC., et al., Defendants.



         Pro se Plaintiff Lelia Proctor filed this suit, initially styled as a Motion for Preventative Injunctive Relief, against Ally Financial Inc., and Ally Bank on September 27, 2018. Defendants filed an Answer and Counterclaim on December 20, 2018. The Court has before it Defendants' Motion for Entry of Default on their Counterclaim (ECF No. 15) and their Motion for Judgment on the Pleadings (ECF No. 17). For the reasons that follow, the Court GRANTS the Motion for Judgment on the Pleadings and DISMISSES WITHOUT PREJUDICE the case. The Motion for Clerk's Entry of Default is therefore MOOT.


         On September 27, 2018, Lelia Proctor filed the instant Complaint, styled as a Motion for Preventative Injunctive Relief. The Complaint is somewhat difficult to understand, but appears to allege violations of the Federal Debt Collection Practices Act (FDCPA) and the Fair Credit Reporting Act (FCRA). Plaintiff was apparently complaining that Defendants had repossessed her car, which was subject to an outstanding loan and was about to be auctioned. The Complaint was signed by Plaintiff, as well as by one Gary W. Proctor-Bey, who described himself as "Personal Representative In Propria Persona Sui Juris, All Rights Reserved." ECF No. 1 at 16. Proctor-Bey also signed the Civil Cover Sheet as "Attorney of Record." Id. at 17. The Complaint noted that Plaintiff sought to "delegate [her] authority to Gary W. Proctor-Bey as [her] Personal Representative in this matter." Id. at 16.

         The Court initially treated this matter as a request for a Temporary Restraining Order, and on September 28, 2018, at approximately 9:00 a.m., the Court's law clerk spoke with a Mr. Proctor-Bey, as to whom the Court could not find a record of his admission to practice law in the District of Maryland. Through that conversation, the Court learned that Mr. Proctor-Bey was not an attorney, that Proctor had not to that point served Defendants, and that the auction for the automobile was not actually scheduled to occur the next day, as initially alleged.

         On October 2, 2018, the Court issued an Order denying Plaintiffs Motion to Proceed In Forma Pauperis, giving her leave to re-file the Motion if the monthly income she had listed was instead, accidentally, her annual income. ECF No. 5 at 1. The Order also noted that Proctor-Bey had neither entered his appearance in the case nor certified that he was licensed to practice in this Court, nor sought to appear pro hac vice, and directed him to submit appropriate filings if he is, in fact, a licensed attorney seeking to represent Plaintiff. Id. The Court explained, "[t]o the extent Plaintiff seeks to assign the authority to litigate this action to Proctor-Bey as a non-attorney, this is not permitted. An individual may litigate her own interests pro se or may appear through counsel; she may not designate another person as her representative in this Court. Because Plaintiff has personally signed the Complaint this filing will remain on the docket. However, Plaintiff is cautioned that, unless Proctor-Bey is a licensed attorney who complies with this Court's rules regarding attorney appearances, any future filings that Proctor-Bey submits on Plaintiffs behalf will be stricken from the docket." Id. at 2.

         On October 25, 2018, Plaintiff submitted a Memorandum, signed by both herself and Proctor-Bey. to "preserve the error by this Court in the order striking" a motion that had been submitted only by Proctor-Bey.[1] ECF No. 8 at 1. The Memorandum explained that "[t]he Proctor [sic] that The Court presumes and categorizes as a non-attorney is by definition a procurator, proxy, or attorney.... A procurator by definition in the civil law is a Proctor..." Id. at 2. Proctor-Bey cited Black's Law Dictionary, 1st Edition (1891) for the proposition that he is an attorney by right of name, but nevertheless failed to file any proof at all that he is an attorney licensed to practice in this Court. His presence in the case, therefore, is not recognized.

         Plaintiff returned an executed summons on December 12, 2018. On December 20, 2018. Defendants submitted an Answer and a Counterclaim against Plaintiff. The Counterclaim alleges Breach of Contract stemming from Plaintiffs failure to make all the required payments on her car loan, ECF No. 12 at 15, and seeks damages of $9, 954.00-purportedly the total outstanding balance on the loan. Plaintiff did not file an Answer to the Counterclaim and on January 15, 2019, Defendants filed a Motion for Clerk's Entry to Default on the Counterclaim. ECF No. 15.

         On January 25, 2019, however, Proctor-Bey, once again without authority to appear in the case, apparently submitted a document to the Clerk's office entitled "Consumer Questions to Defendant.'" It was returned to him, with instructions to refer to the Court's Order of October 2, 2018. because it had not been signed by Plaintiff on her own behalf. ECF No. 16 (Return Pleading Order).

         On February 21, 2019, Defendants filed the instant Motion for Judgment on the Pleadings. ECF no. 17. Once again Proctor-Bey attempted to submit documents which were returned to him on February 26, 2019 ("Consumer Questions on Defendant," ''Consumer Motion to Deny Dismissal," ECF Nos. 19, 20), March 18, 2019 (''Deny Motion for Summary Judgment and Quo Warrantor ECF No. 22), March 29, 2019 ("Consumer Motion to Deny Dismissal, Consumer Questions to Defendant, and Consumer demand for documents," ECF No. 24), April 17, 2019 ("Consumer Decree of Default Judgment," ECF No. 25), and April 26, 2019 ("Demand for Quo Warranto," ECF No. 26). On March 18, 2019, the Court issued another Order directing non-party Proctor-Bey to cease making filings in the case. ECF No. 23. Because these purported filings were returned to Proctor-Bey with a direction to comply with the Court's Order of October 2, 2018, they have never been filed or received in full by the Court and are therefore not considered here.


         The standard for evaluating a Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c) is the same as for a Rule 12(b)(6) Motion to Dismiss. See, e.g., Independence News, Inc. v. City of Charlotte, 568 F.3d 148, 154 (4th Cir. 2009). All reasonable inferences and assumptions are to be made in favor of the non-moving party (i.e. Plaintiff), and the Court assumes as true all well-pleaded facts from her Complaint. Nemet Chevrolet, Lid. v., Inc., 591 F.3d 250, 253 (4th Cir. 2009). The Complaint must be dismissed if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell All Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         The Fair Debt Collection Practices Act (FDCPA). 15 U.S.C. § 1692a defines a "creditor" as "any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another." A "debt collector" is defined as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692(a)(6). The Fourth Circuit has explained that "If]he material distinction between a debt collector and a creditor-at least with respect to the second definition of 'debt collector' provided by § 1692a(6) - is therefore whether a person's ...

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