United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE
case arises under of the Fair Debt Collection Practices Act
(“FDCPA”), as amended, 15 U.S.C. § 1692
et seq. See ECF 1-3 (the “Complaint”).
Plaintiff Alexandra Deitemyer, who is self-represented, sued
defendants Steven Ryback, Esq.; Jonathan W. Bierer, Esq.;
Bierer Law Group, P.A. (“BLG”) (collectively, the
“Attorney Defendants”); Transworld Systems, Inc.
(“Transworld” or “TSI”), and 10
unnamed defendants, alleging multiple violations of the
FDCPA. According to plaintiff, the Attorney Defendants
violated 15 U.S.C. § 1692c(b) by communicating with
third parties about the debt, without plaintiffs consent, ECF
1-3, ¶¶ 34-35, 38-42; they violated §
1692i(b), by bringing an unauthorized legal action against
her, id. ¶ 35; the Attorney Defendants violated
§ 1692e by misrepresenting the identity of plaintiff s
“creditor”, id. ¶¶ 36, 51; and
they violated § 1692g(a) by failing to provide plaintiff
with a validation notice within five days of their first
communication. Id. ¶¶ 37, 51. Plaintiff
also alleges that TSI is vicariously liable for the conduct
of the Attorney Defendants. Id. ¶¶ 48, 51.
Attorney Defendants filed a “Motion To Dismiss, Or In
The Alternative, Motion For Summary Judgment” (ECF 4),
supported by a memorandum of law (ECF 4-2) (collectively, the
“Motion”) and several exhibits. See ECF
4-3 to ECF 4-10. Transworld joined the Motion. ECF 6.
Deitemyer opposes the Motion. ECF 8 (the
“Opposition”). The Attorney Defendants have
replied. ECF 9 (the “Reply”).
Motion is fully briefed and no hearing is needed to resolve
it. See Local Rule 105.6. For the reasons that
follow, I shall grant the Motion in part and deny it in part.
In particular, I shall grant the Motion as to plaintiff's
claims under 15 U.S.C. § 1692c(b) and § 1692i(b),
and deny the Motion as to plaintiff's claims under 15
U.S.C. § 1692e and § 1692g(a).
Factual Background 
a professional association that maintains its principal
office in Baltimore, Maryland. ECF 1-3, ¶ 5. Bierer, an
attorney licensed in Maryland, is lead counsel for BLG.
Id. ¶ 6. Ryback is also an attorney licensed in
Maryland, and he is an associate attorney for BLG.
Id. ¶ 7. Plaintiff alleges that Bierer and
Ryback are “debt collectors” under §
1692a(6). Id. ¶¶ 6-7. The Attorney
Defendants are counsel for TSI, a corporation formed under
the laws of California, with its principal office in Santa
Rosa, California. Id. ¶¶ 8, 32.
Accordingly, plaintiff asserts that Transworld is vicariously
liable for the conduct of the Attorney Defendants.
Id. ¶¶ 48, 54.
August 24, 2005, Deitemyer executed a promissory note (the
“Note”) and credit agreement in the principal
amount of $16, 042.78 in connection with a student loan made
to her by JP Morgan Chase Bank, N.A. (“JP
Morgan”). Id. ¶ 11. Deitemyer alleges
that an anonymous investor (the “Investor”)
invested in the Note, “became creditor, ” and
appointed Transworld to service the Note. Id. ¶
turn, JP Morgan allegedly “lodged” the Note in an
irrevocable trust (“Intermediate Trust”) for the
benefit of the Investor. Id. ¶ 16. JP Morgan,
“the investor, the custodian/services, and TSI, were
privies to the Intermediate Trust having duties as trustees,
co-trustees, their servicers or partners.” Id.
According to Deitemyer, if she defaulted on the Note, the
Intermediate Trust would transfer the Note to a Delaware
statutory trust called National Collegiate Student Loan Trust
2005-3 (“NCSLT”). Id. ¶¶ 13,
16. NCSLT “would then receive transfer and assignment
of the defaulted debt solely to facilitate collection for the
investor.” Id. ¶ 16. Plaintiff claims
that the use of the Intermediate Trust provided JP Morgan and
NCSLT with the benefits of “tax avoidance, bankruptcy
remoteness, protection from creditors, and privacy[.]”
defaulted on the Note on December 3, 2012. Id.
¶ 36. She alleges that the Note was not “deposited
into the NCSLT 2005-3 by any express Deposit and Sale
Agreement or Pool Supplement (whether describing either past
or future events), by any signature pages by the NCSLT
2005-3, or reflected in any documents uploaded to the SEC
website, or any loan schedules, if any.” Id.
¶ 14. Yet, by unspecified means, the Intermediate Trust
transferred the Note to NCSLT on February 6, 2017.
Id. ¶ 17. The right to collect on the debt for
NCSLT was transferred to Transworld. Id.
April 6, 2017, the Attorney Defendants, on behalf of their
client, NCSLT, filed suit against Deitemyer in the District
Court of Maryland for Montgomery County, alleging that she
defaulted on her student loan obligations in the amount of
$22, 220.94. Id. ¶ 35; see National
Collegiate Student Loan Trust 2005-3 v. Alexandra
Marino, No. D-111-CV-18-000575 (Apr. 6, 2017); see
also ECF 4-9 (Docket for No. D-111-CV-18-000575).
contends that on November 21, 2017, the Attorney Defendants
sent her a “first communication, ” in which
Dudley Turner, a Transworld employee, stated that “the
debt balance of $22, 220.94 [on the Note] was ‘charged
off'” on December 3, 2012. ECF 1-3, ¶
36. Plaintiff claims that Turner falsely “purports to
list, as proof of the NCSLT 2005-3's ownership of the
debt, successive owners and intermediate transfers of the
Note, ” while failing to “mention the transfer
[of the debt] to the Intermediate Trust nor . . . whether he
or TSI has information related to the debt that was not
included” in his statement. Id. Further,
Deitemyer alleges that after this initial communication,
defendants did not provide her with a written notice
regarding the debt, as required by the FDCPA. Id.
January 11, 2018, the Attorney Defendants moved to transfer
their suit to the District Court of Maryland for Frederick
County. Id. ¶ 38. In so doing, they allegedly
conveyed information regarding plaintiff's debt.
on February 20, 2018, Deitemyer sent the Attorney Defendants
a letter stating that “the NCSLT 2005-3 is not her
creditor under § 1692a(4) and that their pleadings and
their contents are susceptible to [suit under 15 U.S.C.]
§§ 1692c and 1692e.” Id. ¶ 39;
see also ECF 4-6 (Deitemyer's notice to BLG).
With the letter, she also enclosed an invoice dated February
19, 2018, for $137, 426.16 in damages. See ECF 4-6
February 21, 2018, the Attorney Defendants mailed Deitemyer a
copy of their “Motion to Set on Affidavit Trial
Docket.” ECF 1-3, ¶ 40. In response, on
March 1, 2018, Deitemyer filed a “Notice of Intention
to Defend.” Id.; see ECF 4-9. On
April 20, 2018, the Attorney Defendants moved for sanctions
and entry of a default judgment against plaintiff regarding
her debt. ECF 1-3, ¶ 41. The underlying litigation
proceeded to trial in State court on June 11, 2018.
Id. at 2, 5. However, plaintiff failed to appear,
and judgment was entered in favor of NCSLT, in the amount of
$22, 477.16. Id.; ECF 4-9 at 2.
Standard of Review
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss under Rule 12(b)(6). In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines
v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th
Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010), aff'd sub nom.,
McBurney v. Young, 569 U.S. 221 (2013); Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
A Rule 12(b)(6) motion constitutes an assertion by a
defendant that, even if the facts alleged by a plaintiff are
true, the complaint fails as a matter of law “to state
a claim upon which relief can be granted.”
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” The purpose of the
rule is to provide the defendants with “fair
notice” of the claims and the “grounds” for
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must contain facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009) (citation omitted)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . . .
.”); see also Paradise Wire & Cable Defined
Benefit Pension Plan v. Weil, 2019 WL 1105179, at *3
(4th Cir. Mar. 11, 2019); Willner v. Dimon, 849 F.3d
93, 112 (4th Cir. 2017). To be sure, a plaintiff need not
include “detailed factual allegations” in order
to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.
Moreover, federal pleading rules “do not countenance
dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., 574 U.S. 10, ____, 135 S.Ct. 346,
346 (2014) (per curiam). But, mere “‘naked
assertions' of wrongdoing” are generally
insufficient to state a claim for relief. Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation
other words, the rule demands more than bald accusations or
mere speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555.
“[A]n unadorned, the-defendant-unlawfully-harmed-me
accusation” does not state a plausible claim of relief.
Iqbal, 556 U.S. at 678. Rather, to satisfy the
minimal requirements of Rule 8(a)(2), the complaint must set
forth “enough factual matter (taken as true) to
suggest” a cognizable cause of action, “even if .
. . [the] actual proof of those facts is improbable and . . .
recovery is very remote and unlikely.”
Twombly, 550 U.S. at 556 (internal quotation marks
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “draw all reasonable
inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Semenova v. MTA, 845 F.3d
564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs.,
Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert.
denied, 565 U.S. 943 (2011). But, a court is not
required to accept legal conclusions drawn from the facts.
See Papasan v. Allain, 478 U.S. 265, 286 (1986);
Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th
Cir. 2010). “A court decides whether [the pleading]
standard is met by separating the legal conclusions from the
factual allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without
a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),
cert. denied, 566 U.S. 937 (2012).
ordinarily do not “‘resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses'” through a Rule 12(b)(6) motion.
Edwards, 178 F.3d at 243 (quoting Republican
Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)).
However, “in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (en banc); accord Pressley v. Tupperware Long
Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009).
Because Rule 12(b)(6) “is intended [only] to test the
legal adequacy of the complaint, ” Richmond,
Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d
244, 250 (4th Cir. 1993), “[t]his principle only
applies . . . if all facts necessary to the affirmative
defense ‘clearly appear[ ] on the face of the
complaint.'” Goodman, 494 F.3d at 464 (quoting
Forst, 4 F.3d at 250) (emphasis added in
when a defendant moves to dismiss a complaint under Rule
12(b)(6), courts are limited to considering the sufficiency
of allegations set forth in the complaint and the
‘documents attached or incorporated into the
complaint.'” Zak v. Chelsea Therapeutics
Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015)
(quoting E.I. du Pont de Nemours & Co., 637 F.3d
at 448). The court “may not consider any documents that
are outside of the complaint, or not expressly incorporated
therein . . . .” Clatterbuck v. City of
Charlottesville, 08 F.3d 549, 557 (4th Cir. 2013);
see Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450
(4th Cir. 2007).
under limited circumstances, when resolving a Rule 12(b)(6)
motion, a court may consider documents beyond the complaint
without converting the motion to dismiss to one for summary
judgment. Goldfarb v. Mayor & City Council of
Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). In
particular, a court may properly consider documents that are
“explicitly incorporated into the complaint by
reference and those attached to the complaint as
exhibits.” Goines, 822 F.3d at 166 (citation
omitted); see also Six v. Generations Fed. Credit
Union, 891 F.3d 508, 512 (4th Cir. 2018); Anand v.
Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir.
2014); U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance
Agency, 745 F.3d 131, 136 (4th Cir. 2014); Am.
Chiropractic Ass'n v. Trigon Healthcare, Inc., 367
F.3d 212, 234 (4th Cir. 2004), cert. denied, 543
U.S. 979 (2004); Phillips v. LCI Int'l Inc., 190
F.3d 609, 618 (4th Cir. 1999).
“before treating the contents of an attached or
incorporated document as true, the district court should
consider the nature of the document and why the plaintiff
attached it.” Goines, 822 F.3d at 167 (citing
N. Ind. Gun & Outdoor Shows, Inc. v. City of S.
Bend, 163 F.3d 449, 455 (7th Cir. 1998)). Of import
here, “[w]hen the plaintiff attaches or incorporates a
document upon which his claim is based, or when the complaint
otherwise shows that the plaintiff has adopted the contents
of the document, crediting the document over conflicting
allegations in the complaint is proper.”
Goines, 822 F.3d at 167. Conversely, “where
the plaintiff attaches or incorporates a document for
purposes other than the truthfulness of the document, it is
inappropriate to treat the contents of that document as
may also “consider a document submitted by the movant
that [is] not attached to or expressly incorporated in a
complaint, so long as the document was integral to the
complaint and there is no dispute about the document's
authenticity.” Goines, 822 F.3d at 166
(citations omitted); see also Woods v. City of
Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert.
Denied, ____ U.S. ____, 138 S.Ct. 558 (2017);
Oberg, 745 F.3d at 136; Kensington Volunteer
Fire Dep't. v. Montgomery Cty., 684 F.3d 462, 467
(4th Cir. 2012).
“integral, ” a document must be one “that
by its ‘very existence, and not the mere
information it contains, gives rise to the legal rights
asserted.'” Chesapeake Bay Found., Inc. v.
Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611
(D. Md. 2011) (citation omitted) (emphasis in original).
See also Fed. R. Civ. P. 10(c) (“A copy of a
written instrument that is an exhibit to a pleading is a part
of the pleading for all purposes.”).
addition, “a court may properly take judicial notice of
‘matters of public record' and other information
that, under Federal Rule of Evidence 201, constitute
‘adjudicative facts.'” Goldfarb, 791
F.3d at 508; see also Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007); Katyle v.
Penn Nat'l Gaming, Inc., 637 F.3d 462, 466 (4th Cir.
2011), cert. denied, 565 U.S. 825 (2011);
Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180
(4th Cir. 2009). But, under Fed.R.Evid. 201, a court may take
judicial notice of adjudicative facts only if they are
“not subject to reasonable dispute, ” in that
they are “(1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.”
context of a motion to dismiss, “[a] court may take
judicial notice of docket entries, pleadings and papers in
other cases without converting a motion to dismiss into a
motion for summary judgment.” Brown v. Ocwen Loan
Servicing, LLC, PJM-14-3454, 2015 WL 5008763, at *1 n. 3
(D. Md. Aug. 20, 2015), aff'd, 639 Fed.Appx. 200
(4th Cir. May 6, 2016); cf. Anderson v. Fed. Deposit Ins.
Corp., 918 F.2d 1139, 1141 n. 1 (4th Cir. 1990) (holding
that a district court may “properly take judicial
notice of its own records”). However, “these
facts [must be] construed in the light most favorable”
to the non-movant. Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013)
(abrogated on other grounds by Reed v. Town of
Gilbert, Ariz., 576 U.S. ____, 135 S.Ct. 2218 (2015), as
recognized in Cahaly v. Larosa, 796 F.3d 399 (4th
Attorney Defendants submitted seven exhibits related to
NCSLT's State court suit against Deitemyer. Three of the
exhibits are integral to and explicitly discussed in the
Complaint: NCSLT's complaint against plaintiff (ECF 4-3);
plaintiff's “Notice of Intention to Defend”
(ECF 4-4); and a letter from Deitemyer to the attorney
defendants and NCSLT (ECF 4-6). See ECF 1-3, ¶
35 (NCSLT's complaint); id. ¶ 39 (letter
from Deitemyer to the Attorney Defendants); id.
¶ 40 (Notice of Intention to Defend). Accordingly, I may
consider them without converting the Motion to one for
other four exhibits related to the State court suit are
public records: plaintiff's opposition to NCSLT's
“Motion to Set on Affidavit Trial Docket” (ECF
4-5); Deitemyer's “Motion to Strike Plaintiff's
Affidavit and Certification of Dudley Turner” (ECF
4-7); the State court's judgment of June 11, 2018 (ECF
4-8); and the docket from the State suit. ECF 4-9. Although
they are not integral to the Complaint, the Court may take
judicial notice of them. See Philips, 572 F.3d at
180 (“In reviewing a Rule 12(b)(6) dismissal, we may
properly take judicial notice of matters of public
Attorney Defendants also submitted an Affidavit of Jonathan
Bierer, Esq. (ECF 4-10), regarding BLG's policies and
practices in debt collection cases. The Affidavit is not
integral to the Complaint. Accordingly, I may not consider it
at this juncture.
plaintiff is self-represented, the Court must construe the
Complaint liberally. But, there are limits. In granting a
motion to dismiss a complaint brought by a self-represented
plaintiff, Judge Bennett explained in Jackson v. Experian
Fin. Servs., RDB-13-1758, 2014 WL 794360, at *1 (D. Md.
Feb. 26, 2014) (alterations in Jackson):
As this Court has held, “‘the proper length and
level of clarity for a pleading cannot be defined with any
great precision and is largely a matter for the discretion of
the trial court.'” Stone v. Warfield, 184
F.R.D. 553, 555 (D. Md. 1999) (quoting Charles A. Wright
& Arthur R. Miller, 5 Federal Practice & Procedure
§ 1217 (2d ed. 1990)). Although a pro se plaintiff is
generally given more leeway than a party represented by
counsel, this Court “has not hesitated to require even
pro se litigants to state their claims in an understandable
and efficient manner.” Id. (citing
Anderson v. Univ. of Md. Sch. of Law, 130 F.R.D.
616, 617 (D. Md. 1989), aff'd, 900 F.2d 249,
1990 WL 41120 (4th Cir. 1990) (unpublished table decision)).
To that end, a district court “is not obliged to ferret
through a [c]omplaint, searching for viable claims.”
Wynn-Bey v. Talley, No. RWT-12-3121, 2012 WL
5986967, at *2 (D. Md. Nov. 28, 2012). Rather, a court
“may dismiss a complaint that is so confused,
ambiguous, vague or otherwise unintelligible that its true
substance, if any, is well disguised.” Id.
(quoting Salhuddin v. Cuomo, 861 F.2d 40, 42 (2d
Green v. United States, GLR-15-2026, 2016 WL 7338408
(D. Md. Dec. 19, 2016), Judge Russell dismissed a suit,
sua sponte, and explained, id. at *1:
The instant Complaint “places an unjustifiable burden
on defendants to determine the nature of the claim against
them and to speculate on what their defenses might be”
and imposes a burden on the court to sort out the factual
basis of any claims fairly raised, making dismissal under
Rule 8 appropriate. Holsey v. Collins, 90 F.R.D. 122
(D. Md. 1981); see also Spencer v. Hedges, 838 F.2d
1210 (Table) (4th Cir. 1988). To comply with the rule, a
Plaintiff must provide enough detail to illuminate the nature
of the claim and allow Defendants to respond. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although
district courts have a duty to construe self-represented
pleadings liberally, Plaintiff must nevertheless allege facts
that state a ...