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McCray v. Samuel I. White, P.C.

United States District Court, D. Maryland

December 18, 2019

RENEE L. McCRAY, Plaintiff,



         Plaintiff Renee L. McCray, who is self-represented, has filed suit against Defendants Samuel I. White, P.C. ("Samuel White"), a law firm; and Sara K. Turner, John E. Driscoll, III, Arnold Hillman, Robert H. Hillman, and Deena L. Reynolds, all of whom are employed by Samuel White (collectively, "Defendants"). McCray asserts that, as part of efforts to foreclose on her home, Defendants violated certain provisions the Fair Debt Collection Practices Act ("FDCPA",, 15 U.S.C. SS 1692-1692p (2018). Defendants have filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, which McCray opposes. Having reviewed the submitted materials, the Court finds no hearing necessary. See D. Md. Local R. 105.6. For the reasons set forth below, Defendants' Motion, treated as a Motion to Dismiss, will be GRANTED.


         In 2005, McCray took out a mortgage loan for 109 North Edgewood Street in Baltimore, Maryland ("the Property"). At some point, McCray defaulted on the mortgage, and in February 2013, Samuel White initiated foreclosure proceedings in the Circuit Court for Baltimore City, Maryland. Driscoll, III v. McCray, No. 24-0-13000-528 (Cir. Ct. Balt. City). Over the ensuing several years, that continuing foreclosure proceeding spawned a number of other lawsuits in which McCray asserted claims based on Defendants' allegedly unlawful collection efforts related to the foreclosure. See, e.g., McCray v. Fed. Home Loan Mortgage Corp., No. GLR-13-1518 (D. Md.); McCray v. Wells Fargo, No. GLR-14-3445 (D. Md.); McCray v. Samuel I. White, No. GLR-16-0934 (D. Md.).

         In the present suit, McCray makes various allegations, stretching back to 2012, about Defendants' conduct prior to and during the foreclosure action. Although McCray recites at length the history of the foreclosure action, her present claims focus on 2017 communications from Defendants related to the foreclosure, which McCray has attached to the Complain.. Specifically, McCray asserts that on April 21, 2017, she received a letter from Defendants that included a copy of a newspaper advertisement notifying the public of the foreclosure sale of the Property scheduled for May 17, 2017. The mailing included a letter from Samuel White stating that it was providing McCray with a copy of the advertisement pursuant to foreclosure notice requirements set forth in Maryland law. At the bottom of the letter was a section entitled "NOTICE," which stated that, pursuant to the FDCPA, Samuel White was advising McCray that it was a debt collector attempting to collect a debt.

         In response, on May 12, 2017, McCray sent a letter to Defendants stating that she wished them to cease all communication with her pursuant to 15 U.S.C. S 1692c(c), which provides that upon notice from a consumer to cease further communication, a debt collector shall not communicate with the consumer about the debt except in certain specific circumstance.. After receiving McCray's letter, Defendants sent McCray three other communications-on July 24, 2017; August 22, 2017; and October 17, 2017-each of which was the same in substance as the April 2017 letter and foreclosure notice and notified McCray of specific rescheduled dates for the foreclosure sale.

         On November 15, 2017, the Property was sold at a foreclosure sale. On December 11, 2017, a Notice of Report of Sale was docketed with the state court. The state court issued an Order ratifying the sale, which became final on November 26, 209.. McCray has since filed an appeal of that Order to the Maryland Court of Special Appeals, where it remains pending.

         On November 13, 2018, McCray filed this action, asserting three FDCPA claims based on the 2017 foreclosure notices. First, she asserts a claim for a violation of 15 U.S.C. S 1692c(c), on the theory that Defendants were required, but failed, to cease communications with her after they received her May 12, 2017 letter. Second, she asserts a claim for a violation of S 1692e(5), which makes it unlawful for a debt collector to make a false or misleading representation in the collection of a debt by threatening to "take any action that cannot legally be taken or that is not intended to be taken." 15 U.S.C. S 1692e(5). McCray asserts that the 2017 foreclosure notices violated this section because Defendants could not prove that they had a legal right to foreclose on the Property and thus could not lawfully threaten to foreclose. Third, she asserts a claim for a violation of S 1692f(6), which makes it unlawful for a debt collector to take or threaten to take "any non-judicial action to effect dispossession" of property if the debt collector has "no present right of possession to the property." 15U.S.C. S 1692f(6)(A). As to this cause of action, McCray adopts the argument advanced for her S 1692e claim.


         Defendants assert a number of arguments for dismissal, including that McCray lacks standing to pursue her FDCPA claims because her mortgage debt was discharged in bankruptcy and thus she no longer has any personal obligation for the mortgage debt; that based on the United States Supreme Court's recent holding in Obduskey v. McCarthy & Holthus LLP, 139 S.Ct. 1029 (2019), they are not debt collectors within the meaning of the FDCPA; that McCray's claims are barred by res judicata or collateral estoppl; and that McCray fails to state a claim as to her three causes of action.

         I. Legal Standard

         Defendants' Motion is styled as a motion to dismiss, under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment, under Rule 56. Typically, when deciding a motion to dismiss under Rule 12(b)(6), the Court considers only the complaint and any documents "integral to the complaint." Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Here, McCray has attached as part of her Complaint the correspondence that she alleges was sent in violation of the FDCPA. Defendants, in turn, attach to their Motion docket sheets and court opinions, of which the Court may take judicial notice. Fed.R.Evid. 201(b)(2). Where the Complaint and other court records provide a sufficient record for this Court to adjudicate Defendants' Motion, the Court sees no need to convert the Motion to one for summary judgment and will thus treat the filing as a Motion to Dismiss.

         To defeat a motion to dismiss under Rule 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Although courts should construe pleadings of self-represented litigants liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007), legal conclusions or conclusory statements do not suffice, Iqbal, 556 U.S. at 678. The Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd of Comm'rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).

         II. ...

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