James McLean v. Ronald Ray

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UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cv-00456-LO-TCB Copies to all parties and the district court/agency. [998896416].. [11-1544]

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Appeal: 11-1544 Doc: 35 Filed: 07/17/2012 Pg: 1 of 18 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1544 JAMES L. MCLEAN; EDITH L. MCLEAN, Plaintiffs – Appellants, v. RONALD A. RAY, Esquire; ECONOMOU, FORRESTER & RAY, Defendants – Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:10-cv-00456-LO-TCB) Argued: May 16, 2012 Before AGEE and Circuit Judge. DIAZ, Decided: Circuit Judges, and July 17, 2012 HAMILTON, Senior Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Agee and Senior Judge Hamilton joined. ARGUED: Allen Huberth Sachsel, Fairfax, Virginia, for Appellants. David John Gogal, BLANKINGSHIP & KEITH, PC, Fairfax, Virginia, for Appellees. ON BRIEF: Michael L. Chang, BLANKINGSHIP & KEITH, PC, Fairfax, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. Appeal: 11-1544 Doc: 35 Filed: 07/17/2012 Pg: 2 of 18 DIAZ, Circuit Judge: Edith and James McLean sued Ronald Ray, an attorney, and his law firm, Economou, Forrester & Ray, alleging that Ray violated the Fair Debt Collections Practices Act in the course of seeking to collect a debt the McLeans owed to his client. Finding the McLeans’ granted Ray’s motion claims for meritless, summary the judgment McLeans’ cross motion for summary judgment. appealed. district and court denied the The McLeans timely We affirm. I. A. Edith McLean is a ninety-six-year-old widow. Edith’s son, James McLean, manages her affairs and finances under general and medical powers facility in of attorney. Maryland, Edith Currently twice at resided nursing home facility in Arlington, Virginia. a at medical care ManorCare, a Edith was first admitted to ManorCare on July 30, 2006 and was discharged on September 7, 2006. Upon Edith’s first admission to ManorCare, James signed a contract with the facility providing that the McLeans would be liable for all costs (to include attorney’s fees) incurred account. upon by ManorCare in collecting payment on the The contract also provided that it would terminate Edith’s date of discharge; 2 however, if Edith were Appeal: 11-1544 Doc: 35 Filed: 07/17/2012 Pg: 3 of 18 readmitted within fifteen days of discharge, the contract would continue in effect as of the date of readmission. In November 2007, Ray sued Edith in Arlington County General District Court on behalf of ManorCare, to collect a debt allegedly owed to ManorCare for services it rendered to Edith during her first stay. The parties resolved the matter and ManorCare nonsuited the case. Approximately twenty months after her first stay, Edith was readmitted to ManorCare without signing a new contract. disputes again arose between the McLeans and Payment ManorCare, and ManorCare again engaged Ray to attempt to collect the amounts it claimed it was owed. On March 25, 2009, while Edith was still a resident at ManorCare, Ray mailed Edith a letter claiming that she owed ManorCare $15,814.44, attorney’s fees, and costs. plus interest, reasonable Two days later, Ray sued Edith in the Arlington County Circuit Court (the “Arlington Complaint”) alleging that she failed to pay ManorCare for services rendered. In standard preparing collection agreement, and an the Arlington referral itemized form, Complaint, Ray Edith’s earlier statement pertaining reviewed to a residence Edith’s account, all of which he had received from ManorCare consistent 3 Appeal: 11-1544 Doc: 35 Filed: 07/17/2012 Pg: 4 of 18 with his normal practice before filing debt collection actions. 1 The referral sheet stated that Edith had been admitted ManorCare on July 30, 2006 and remained in the facility. to Ray noticed that the amount sought on the referral sheet did not match the figures ManorCare provided on the itemized statement. After consulting with ManorCare, Ray revised the draft complaint to state a reduced amount owed. The Arlington Complaint, however, also asserted--incorrectly it turns out--that Edith had resided continuously at ManorCare since her initial admission in July 2006, and therefore alleged a breach of the contract James signed in connection with that admission. Before Ray filed suit, his secretary called his attention to the 2007 lawsuit that the parties had resolved. Ray admitted that he reviewed the file pertaining to the earlier matter in a cursory fashion, concluding that the dated information was not 1 Ray admitted that he also customarily received a sworn affidavit from his clients attesting to the amount sought, but that he did not receive one from ManorCare in this instance. Ray explained that he typically requests an affidavit to facilitate the entry of a default judgment pursuant to Virginia state court procedures. In this case, Ray explained that--given the adversarial nature of the proceedings from an early stage-he had no reason to expect that the McLeans would default and thus no practical need for the affidavit. Moreover, the district court found it undisputed that Ray “decided not to use a supporting affidavit in the McLean matter because Ms. McLean continued to reside at the facility, and Mr. Ray assumed that he would need to amend the complaint prior to the entry of a final judgment order to include claims for additional services.” J.A. 994-95. 4 Appeal: 11-1544 Doc: 35 Filed: 07/17/2012 Pg: 5 of 18 useful and that he had no reason to otherwise question the facts provided by ManorCare with respect to the 2009 claim. Edith left ManorCare on May 8, 2009. In the months following her departure, Ray exchanged several emails and phone calls with the McLeans’ attorneys. It was not until the end of September, however, that the McLeans first asserted that the 2006 contract was no longer valid because of the twenty-month lapse between Edith’s discharge readmission in April 2008. in September 2006 and Ray responded that he would look into the matter and “clean up” the lawsuit if he confirmed that the 2006 contract no longer applied. Ray requested Edith’s file from his ManorCare some time to retrieve it. an amended complaint (the J.A. 561. client, To that end, but it took In the interim, Ray filed “Arlington Amended Complaint”) on October 29, 2009 without striking the claim for attorney’s fees. The Arlington Amended Complaint increased the ad damnum to $70,147.67 to encompass services rendered to Edith from the filing of the initial Arlington Complaint until her discharge. The Arlington Amended Complaint further alleged that Edith, by accepting the benefit of the services ManorCare rendered to her, implicitly obligated herself to pay ManorCare in quantum meruit for their reasonable value. The Arlington Amended Complaint also continued to seek interest, and attorney’s fees and costs based on the 2006 contract. The 5 next day, Edith’s counsel Appeal: 11-1544 Doc: 35 served Filed: 07/17/2012 and an filed Answer Pg: 6 of 18 and Counterclaim, pleading as a defense that there was no written contract between the parties and providing specific dates of Edith’s discharge and readmission to ManorCare. By November 2009, Ray was able to confirm that Edith had not continuously resided at ManorCare, and conceded that no written contract existed to support a claim for attorney’s fees. In January dismissing 2010, the the parties written presented contract claim and an agreed granting amend the suit to include an oral contract claim. order leave to Ray filed a Second Amended Complaint, asserting claims for breach of an oral contract and attorney’s an implied fees, and contract, seeking dropping judgment in the claim for the amount of $65,809.50. B. In the course of litigating the debt collection proceeding, the McLeans requested a information. request, sought list discovery. of ManorCare ManorCare listing the Among prepared national other employees a list headquarters and documents, their responsive address they contact to and the phone number as the contact information for several employees, and submitted it to Ray. contact information Ray noticed that the list was missing for two ManorCare 6 employees, which he Appeal: 11-1544 Doc: 35 inserted Filed: 07/17/2012 before forwarding Pg: 7 of 18 the discovery response to the McLeans. While the debt collection action was pending, Ray filed a separate action for the conservator for Edith. warranted by James’s including his appointment of a guardian and Ray contended that this proceeding was history purported of failure neglect of to for pay Edith’s her needs, care and residence at another nursing home, which ultimately resulted in the termination of Edith’s residence agreement at that facility. Ray admitted that recovering the debt owed to ManorCare was one purpose for filing the guardianship proceeding, but that his legitimate actions. concerns for Edith’s welfare also motivated his Ray prosecuted the guardianship proceeding against the McLeans for nearly three months after Edith left ManorCare, but then nonsuited the action. C. The McLeans sued Ray and his law firm in federal district court for violations of the Fair Debt Collections Practices Act (“FDCPA”). They twice amended their complaint; the second amended complaint, the operative complaint before the district court, initially contained twenty-four counts, twelve counts for James and twelve for Edith, alleging the same violations of the FDCPA for dismissed each plaintiff. several counts, However, including 7 the McLeans twelve voluntarily claims that the Appeal: 11-1544 Doc: 35 Filed: 07/17/2012 Pg: 8 of 18 district court indicated were likely time-barred by the FDCPA’s statute of limitations. 2 two other counts The McLeans also voluntarily dismissed alleging that Ray violated the FDCPA by “instituting and/or continuing and prosecuting” the guardianship proceeding, id. 27, which they argued Ray initiated “to bring pressure on James, using the proceeding as a ‘club’ to induce or threaten James to pay a claimed, but disputed, debt,” id. 23-24. The district court thus had before it ten remaining counts alleging that Ray violated the FDCPA by (1) seeking incorrect amounts, seeking attorney’s fees, and failing to determine the accuracy of ManorCare’s claim prior to signing and filing the Arlington Amended Complaint, (2) falsely making a quantum meruit claim “with no basis in fact,” (3) falsely representing that he would not assert the 2006 contract as a basis for recovery when amending the complaint, and (4) providing cross-moved for summary a false discovery response. The parties district court granted in favor of Ray. appealed, challenging the award of judgment, which the The McLeans timely summary judgment and a discovery ruling by the magistrate judge. 2 On appeal, Ray argues that all of the claims are barred by the FDCPA’s statute of limitations. Because we conclude that the McLeans’ claims fail on the merits, we need not address this separate argument. 8 Appeal: 11-1544 Doc: 35 Filed: 07/17/2012 Pg: 9 of 18 II. We review de novo a grant or denial of summary judgment, applying the same standard applied by the district court. Overstreet v. Ky. Cent. Life Ins. Co., 950 F.2d 931, 938 (4th Cir. 1991). Summary judgment is appropriate only when the record shows “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(c). A district court considering a motion for summary judgment “must view the evidence in the light most favorable to the nonmoving party,” Unus v. Kane, 565 F.3d 103, 115 (4th Cir. 2009), and draw all inferences in favor of the nonmovant, Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). III. The FDCPA is a strict liability statute that prohibits false or deceptive representations in collecting a debt, as well as certain abusive debt collection practices. 3 3 Attorneys seeking The prohibited practices include “any false deceptive, or misleading representation or means in connection with the collection of any debt”; 15 U.S.C. § 1692e, “false representation of the character, amount, or legal status of any debt;” id. § 1692e(2)(A); “use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer;” id. § 1692e(10); “use [of] unfair or unconscionable means to collect or attempt to collect any debt;” id. § 1692f, and “collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly (Continued) 9 Appeal: 11-1544 the Doc: 35 Filed: 07/17/2012 repayment of a debt on Pg: 10 of 18 behalf of a collectors within the ambit of the FDCPA. 514 U.S. 291, 292 (1995). litigation constitute client are debt Heintz v. Jenkins, False statements in the course of violations of the act. See Sayyed v. Wolpoff & Abramson, 485 F.3d 226, 229 (4th Cir. 2007) (rejecting the argument that an attorney debt collector was entitled to immunity for his litigating activities). contains a “bona fide error” defense The FDCPA, however, that absolves a debt collector from liability for a violation if he can show by a preponderance of the evidence that “the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” 15 U.S.C. § 1692k(c). A. The McLeans assert that Ray’s claims as to the amounts due to ManorCare violated the FDCPA in several respects. First, they contend that Ray misrepresented the debt owed by improperly requesting attorney’s fees despite the fact that the break in Edith’s stay at ManorCare rendered ManorCare to such fees inapplicable. the contract entitling On this point, the McLeans argue first that Ray’s review of his own files--specifically, authorized by the agreement creating the debt or permitted by law;” id. § 1692f(1). 10 Appeal: 11-1544 Doc: 35 Filed: 07/17/2012 Pg: 11 of 18 the file pertaining to the 2007 lawsuit--should have alerted him to the break in stay, and further that he was alerted to it by the McLeans’ counsel. Next, they contend that Ray violated the FDCPA payment by seeking the of prejudgment interest in the complaint. The McLeans further argue that the bona fide error defense does not shield Ray because he knew the amounts claimed were erroneous and did not maintain adequate procedural safeguards to avoid such errors. On the latter point, the McLeans argue that Ray’s of dereliction his own protocol--of requesting and receiving a sworn affidavit from his clients attesting to the amount of the claimed debt--establishes his failure to comply with procedures for avoiding error. In granting summary judgment in favor of Ray, the district court--relying on our decision in Amond v. Brincefield, Hartnett & Assocs., P.C., 175 F.3d 1013, 1999 WL 152555 (4th Cir. Mar. 22, 1999) (unpublished table decision)--determined that the bona fide error defense applied to absolve Ray of liability. Although by unpublished decision, this court in Amond affirmed the district court’s finding that debt collector lawyers had no reason to question the amount of debt they were attempting to collect for their clients, stating that lawyers “cannot be held liable for what appears to be an honest dispute regarding the amount of the debt, so long as there exists a colorable factual 11 Appeal: 11-1544 Doc: 35 Filed: 07/17/2012 Pg: 12 of 18 basis for the higher amount claimed by their client.” (quoting the district court). This court also Id. at *2 rejected the Amond plaintiff’s argument that the FDCPA created a heightened duty of investigation collection activity. for lawyers engaged in ordinary debt Id. at *3. Noting that ManorCare had provided Ray a referral form, a residence agreement, and an itemized bill for services, which Ray reviewed concluded claim. (and that challenged), there was a the district colorable basis court for correctly ManorCare’s Addressing the McLeans’ argument that Ray would have been alerted to the fact that Edith did not reside continuously at ManorCare had he more carefully reviewed his own files, the district court also correctly concluded that Amond permitted Ray to rely on his client’s word. 4 As for the McLeans’ separate argument that Ray deliberately asserted a false claim for attorney’s fees despite having been put on notice by the McLeans’ attorneys that there was a break in Edith’s stay at ManorCare, the district court found (and we agree) that Ray was diligent in investigating the matter. 4 From Like the district court, we credit Ray’s explanation for why he did not insist on receiving a sworn affidavit from ManorCare for the amount owed. At bottom, our inquiry focuses on whether the procedures Ray employed were reasonably adapted to avoid error. We are satisfied that they were, and that Ray is thus entitled to the benefit of the bona fide error defense. 12 Appeal: 11-1544 Doc: 35 Filed: 07/17/2012 Pg: 13 of 18 the moment Ray was alerted to the contention that there was a break in Edith’s stay that rendered the attorney’s fees provision of the initial contract inapplicable, he diligently investigated to confirm the truth of the assertion. We also agree with the district court that Ray amended the complaint to remove the claim for attorney’s fees as soon as he was able to confirm that the 2006 contract no longer applied. The district court also correctly rejected the McLeans’ allegation that Ray violated the FDCPA by seeking prejudgment interest. As the district court noted, Virginia law permits plaintiffs to seek prejudgment interest, which is awarded at the discretion of the trier of fact. See, e.g., Upper Occoquan Sewage Auth. v. Blake Constr. Co., 655 S.E.2d 10, 23 (Va. 2008) (citing Va. Code Ann. § 8.01-382). protest that purportedly Ray owed sought by the The McLeans nevertheless prejudgment McLeans that payable, as they had not yet been billed. interest were not on yet amounts due and However, the district court determined that “the complaint is fairly read as seeking only pre-judgment interest on the amounts past due at the time of judgment.” J.A. 1001. this score, as well. We agree with the district court on Further, any risk that ManorCare would have been able to recover damages to which it was not entitled-i.e., prejudgment interest on amounts that were not yet due and payable--is mitigated by the fact that a decision to award such 13 Appeal: 11-1544 Doc: 35 Filed: 07/17/2012 Pg: 14 of 18 interest in the first instance is determined at the discretion of a presumably competent and reasonable trier of fact. B. The McLeans next assert that the quantum meruit claims lacked a factual basis, and that the amount asserted therefore violates the FDCPA. McLeans’ In support, they cite Ray’s response to the interrogatory that sought the basis for ManorCare’s allegation that each charge represented the reasonable value of the item or service ManorCare provided Edith. explained that the charges were “determined Ray’s response based upon the reasonable value of the time or service charged, the charges for such items by other facilities in the market and a cost basis evaluation as determined by ManorCare in setting prices based on its overall operating income and expenses.” Id. The McLeans contend that the FDCPA requires--at the time a debt collector asserts a debt--an accounting of how the amount was calculated. to constitute According to the McLeans, Ray’s response fails a good faith, pre-suit rationale of a claimed debt, because it is merely “a list of factors that will be considered to support a later rationalization,” Appellants’ Br. 47, which they claim does not satisfy the requirements of the FDCPA. The McLeans’ position is unpersuasive, as they fail to cite any authority for this proposition. 14 We agree with the district Appeal: 11-1544 court Doc: 35 that Filed: 07/17/2012 Ray’s response Pg: 15 of 18 clearly stated the basis for the quantum meruit figure: “a reasonable value of the services, as determined by the market, plus costs.” J.A. 1001. Further, we agree with the district court that the McLeans have done no more than suggest that the numbers “smell fishy,” id. 1002, which does not satisfy their burden in opposing summary judgment. C. The McLeans also allege that Ray violated the FDCPA when he falsely represented that he would not assert the 2006 contract (the contract signed upon Edith’s first admission to ManorCare) as a basis for recovery and for attorney’s fees when amending the Arlington Complaint. This allegation stems from a statement Ray made in a sworn affidavit he submitted to the district court that, before amending the complaint the first time, he “would inquire with [ManorCare] regarding the applicability of the 2006 contract and . . . would clean up the lawsuit if [he] confirmed that there was a problem with that part of the claim.” Id. 561. The McLeans interpret Ray’s statement as an unconditional vow to amend the initial complaint to remove the breach written contract claim and the claim for attorney’s fees. of The district court, however, correctly interpreted Ray’s statement with the qualifier in context: that Ray would “clean up the lawsuit” if and when he confirmed the applicability of the 2006 contract, and not that he made 15 an unconditional promise to Appeal: 11-1544 Doc: 35 remove the Filed: 07/17/2012 claim for Pg: 16 of 18 attorneys’ fees. Several obstacles-- including the fact that ManorCare had misplaced Edith’s file-prevented Ray from confirming the facts any sooner. The record shows that Ray amended the complaint to remove the claim for attorney’s fees as soon as he was able to determine that the 2006 contract did not support it. We thus agree with the FDCPA by district court that this claim lacks merit. D. The McLeans also allege that Ray providing a false discovery response. violated the According to the McLeans, Ray falsely provided the ManorCare national headquarters address and phone number as the contact information for several ManorCare employees, when he knew that those employees were not in fact based at the company’s Ohio headquarters. As to this claim, the district court correctly noted that there was neither factual nor legal support for the notion that Ray made a “false statement” or “misrepresentation” within the meaning of the FDCPA when he forwarded the list of employees from ManorCare to the McLeans. Assuming that Ray’s action constituted a “representation” or “means of collecting a debt,” the district court nevertheless concluded that it was not false, deceptive, or misleading, let alone “unfair or unconscionable” as prohibited by the act. 16 Appeal: 11-1544 Doc: 35 Again, Filed: 07/17/2012 contention the on McLeans appeal legally incorrect. court that that that no the authority district to support court’s their reasoning is To the contrary, we agree with the district there specifying cite Pg: 17 of 18 was nothing certain wrong ManorCare or dishonest employees could about be Ray reached through the company’s headquarters. E. Finally, entered by the the McLeans seek magistrate to judge appeal in a this discovery case. In order their complaint, the McLeans asserted two separate FDCPA violations premised on the view that Ray abused the separate guardianship proceeding as a coercive debt collection tool. In support discovery McLean, Edith of directing at L. all Ray times McLean’s propounded their claims, to admit hereto that relevant, affairs.” interrogatories the Id. and McLeans propounded “Plaintiff was 211. requests James properly In L. managing Ray production for response, of documents seeking information relating to James’s management of Edith’s financial affairs. When the McLeans refused to provide the information, the magistrate judge granted Ray’s motion to compel. opted to Rather than comply with the order, however, the McLeans dismiss the two claims. At the same time, they objected to the magistrate judge’s order, contending that it was an abuse of discretion and should be set aside. 17 The district Appeal: 11-1544 court Doc: 35 Filed: 07/17/2012 overruled the Pg: 18 of 18 objection, finding that “the information sought by Defendants is plainly relevant to Plaintiffs’ claims . . . [and] Defendants are entitled to develop their response to Plaintiffs’ allegations documents.” through discovery of all relevant Id. 388. On appeal, the McLeans argue that the magistrate judge and the district court erred in ordering the McLeans to disclose Edith’s assets. They ask us to reverse the district court’s order and to remand the case with instructions to reinstate the two counts alleging violations of the FDCPA pertaining to the guardianship claims. We conclude, however, that this assignment of error is now moot, given that the McLeans elected rather than comply with the order. to dismiss the claims In any event, we discern no error, as we agree with the district court that the discovery was plainly relevant to the issues in the case. IV. For the foregoing reasons, the judgment of the district court is AFFIRMED. 18

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