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Ben-Davies v. Blibaum & Associates, P.A.

United States District Court, D. Maryland

September 17, 2019

AMBER BEN-DAVIES, Plaintiff,
v.
BLIBAUM & ASSOCIATES, P.A., Defendant. BRYIONE K. MOORE, Plaintiff,
v.
BLIBAUM & ASSOCIATES, P.A., Defendant. LARRY CHAVIS and SHARONE CROWELL, Plaintiffs,
v.
BLIBAUM & ASSOCIATES, PA., Defendant.

          MEMORANDUM

          Catherine C. Blake United States District Judge.

         These are three separate actions brought pursuant to the Fair Debt Collection Practices Act ("FDCPA"), the Maryland Consumer Debt Collection Act ("MCDCA"), and the Maryland Consumer Protection Act ("MCPA"). Pending before the court is Defendant Blibaum & Associates, P.A.'s ("Blibaum") motion for summary judgment. (ECF No. 50).[1]The actions have been consolidated for the purposes of this motion.

         FACTUAL AND PROCEDURAL HISTORY[2]

         At all times relevant to this action, defendant law firm Blibaum & Associates, P. A. ("Blibaum") acted as the agent of Peak Management, LLC ("Peak"), and Henderson-Webb, LLC ("Henderson-Webb), to recover debts owed by the plaintiffs resulting from breaches of residential leases. Blibaum filed breach of contract actions against plaintiffs Amber Ben-Davies, Bryione K. Moore, Larry Chavis, and Sharone Crowell, respectively, seeking damages resulting from breaches of residential leases with either Peak or Henderson-Webb. Blibaum obtained judgments in the District Court of Baltimore County against all four plaintiffs.[3] In each judgment, the court ordered that post-judgment interest would be assessed at the legal rate. As a result of each plaintiffs failure to pay the judgment, Blibaum filed requests for writs of garnishment of wages in the District Court for Baltimore County.[4] Blibaum disclosed that it was using a ten percent post-judgment interest rate in a letter to Ben-Davies, and in the requests for wage garnishment against Moore, Chavis, and Crowell.

         Ben-Davies filed her complaint in this court on August 5, 2016, alleging that Blibaum's use of a ten percent post-judgment interest rate violated the FDCPA, the MCDCA, and the MCPA. (Ben-Davies Compl, ¶¶ 1-2, ECF No. 1). Moore filed her complaint on October 25, 2016, alleging the same. (Moore Compl. ¶¶ 1-2, Civ. No. CCB-16-3546, ECF No. I).[5] Chavis and Crowell filed their complaint on August 7, 2017, alleging violations of the FDCPA and the MCDCA. (Chavis & Crowell Compl. ¶ 1-2, Civ. No. CCB-17-2220, ECF No. 1). Ben-Davies and Moore alleged that because the applicable statutory rate of post-judgment interest is limited to six percent, Blibaum's attempt to collect using a ten percent interest rate violated the FDCPA, the MCDCA, and the MCPA. Chavis and Crowell alleged that Blibaum's attempts to collect on their judgments using the ten percent interest rate violated the FDCPA and the MCDCA (but not the MCPA).

         On July 26, 2017, Blibaum and Ben-Davies filed a joint motion requesting that this court certify a question of law to the Maryland Court of Appeals. (ECF No. 17). The parties sought a stay of their lawsuit until the Maryland Court of Appeals decided whether the legal rate of post-judgment interest to be awarded in a breach of contract action, when the underlying contract is a residential lease, is ten percent or six percent. (Id. at 1-2). The parties agreed that "the question presented [was] a novel issue of Maryland law." (Id. at 2). Blibaum and Moore filed a similar joint motion on July 26, 2017. (Civ. No. CCB-16-3546, ECF No. 21). In light of this court's decision to certify the question of law to the Maryland Court of Appeals, Blibaum, Chavis, and Crowell filed a joint motion to stay their lawsuit until the Court of Appeals decided the question. (Civ. No. CCB-17-2220, ECF No. 5).

         On January 19, 2018, the Court of Appeals issued an opinion in Ben-Davies v. Blibaum & Assocs., P.A., 457 Md. 228 (2018), finding that "where a landlord sues a tenant for breach of contract based on a residential lease, and the trial court enters judgment in the landlord's favor against the tenant and the judgment includes damages for unpaid rent and other expenses, a post-judgment interest rate of 6% applies." Id. at 233.

         STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A dispute is genuine if 'a reasonable jury could return a verdict for the nonmoving party.'" Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Dulcmey v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). "A fact is material if it 'might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]" Anderson, 477 U.S. at 247-48.

         The court must view the evidence in the light most favorable to the nonmoving party, Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam), and draw all reasonable inferences in that party's favor, Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted); see also Jacobs v. N.C Admin. Office of the Courts, 780 F.3d 562, 568-69 (4th Cir. 2015). At the same time, the court must "prevent factually unsupported claims and defenses from proceeding to trial." Boachat v. Bait, Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)).

         ANALYSIS

         A. FDCPA Claims

         The plaintiffs contend that Blibaum violated the FDCPA when it sought to collect on judgments against them using a post-judgment interest rate often percent. The FDCPA protects consumers from abusive and deceptive debt collection practices. United States v. Nat'l Fin. Serv., Inc., 98 F.3d 131, 135 (4th Cir. 1996). Wrongful debt-collection practices include the collection or attempted collection of "any amount (including any interest, . .) unless such amount is expressly authorized by the agreement creating the debt or permitted by law," 15 U.S.C. § 1692f(1). Wrongful debt-collection practices claims brought under the FDCPA must be filed within one year of the alleged violation. 15 U.S.C. § 1692k(d). Thus, for each plaintiffs claim to be actionable under the FDCPA, Blibaum's alleged violation must have occurred less than one year prior to the filing of each complaint. Each plaintiff can point to an occasion when Blibaum's collection or attempted collection of amounts using the ten percent interest rate fell within this actionable window.[6] Blibaum asserts, however, that because it began attempting to collect from each plaintiff before the actionable windows, the plaintiffs' FDCPA claims are time-barred. The current timeliness dispute thus turns on whether Blibaum's collection efforts during the actionable period constitute independent violations of the FDCPA, or whether they are merely continuations of the same unlawful debt collection practice initiated at a date prior to the actionable period.

         The Fourth Circuit has not decided whether FDCPA violations that occur outside the statute of limitations period bar plaintiffs from proceeding on subsequent but related debt-collection communications. But courts in this district have generally followed the rule that "the limitations period for FDCPA claims begins from the date of the first violation, and subsequent violations of the same type do not restart the limitations period." Fontell v. Hassett,870 F.Supp.2d 395, 404 (D. Md. 2012); Archie v. Nagle & Zaller, PC., No. GJH-17-2524, 2018 WL 3475429, at *6 (D. Md. July 19, 2018);[7]Costley v. Bank of America, N.A., No. 13-cv-02488-ELH, 2017 WL 5564641, at *6-7 (D. Md. Nov. 20, 2017); Bey v. Shapiro Brown &Alt, LLP, 997 F.Supp.2d 310, 316 (D. Md. 2014); McGhee v. JP Morgan Chase Bank, N.A., No. DKC 12-3072, 2013 WL 4495797, at *7 n.10 (D. Md. Aug. 20, 2013); Alston v. Cavalry Portfolio Services, LLC, No. 8:12-cv-03589, 2013 WL 665036, at *3 (D. Md. Feb. 22, 2013). Courts in this district have held that repeated attempts to collect on a single debt are "subsequent violations of the same type" that "do not restart the limitations period." Fontell, 870 F.Supp.2d at 404 ("Although each notice was undoubtedly unique in that Plaintiffs initial assessment continued to accrue late fees, the notices all related to collection of the same underlying debt."); see also Costley, 2017 WL 5564641 at *6 (holding that the plaintiffs FDCPA claim was time-barred when the defendant's complained-about ...


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