Kevin Betskoff, Sr. v. Bank of America National Assoc
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999097576-2] Originating case number: 1:12-cv-01998-CCB Copies to all parties and the district court/agency. [999180295].. [13-1352]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1352
KEVIN C. BETSKOFF, SR., on behalf of himself,
Plaintiff - Appellant,
v.
BANK OF AMERICA NATIONAL ASSOCIATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:12-cv-01998-CCB)
Submitted:
August 20, 2013
Decided:
August 26, 2013
Before MOTZ, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kevin C. Betskoff, Sr., Appellant Pro Se.
Mark W. Kinghorn,
MCGUIREWOODS, LLP, Charlotte, North Carolina; Craig Robert
Haughton, MCGUIREWOODS, LLP, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kevin C. Betskoff, Sr., appeals the district court’s
orders declining
to
remand
to
Maryland
state
court
his
suit
against Bank of America, dismissing his complaint for failure to
state a claim, and denying his motion to reconsider.
Given
that
Betskoff’s
complaint
We affirm.
established
both
diversity and federal question jurisdiction, the district court
properly denied Betskoff’s motion to remand the case to state
court.
See 28 U.S.C. § 1441(a), (b) (2006); Francis v. Allstate
Ins. Co., 709 F.3d 362, 366-67 (4th Cir. 2013).
Nor did the
district court abuse its discretion in exercising supplemental
jurisdiction over his closely associated state law claims.
See
28 U.S.C. § 1367(a) (2006); Crosby v. City of Gastonia, 635 F.3d
634, 644 (4th Cir. 2011).
We
also
conclude
that
the
district
court
properly
granted Bank of America’s Fed. R. Civ. P. 12(b)(6) motion to
dismiss.
As the district court observed, Betskoff’s attempts to
assert claims under the Maryland Consumer Debt Collection Act,
Md. Code Ann., Com. Law §§ 14-201 to 14-204 (LexisNexis 2005),
the Maryland Consumer Protection Act, Md. Code Ann., Com. Law
§§ 13-101
to
13-501
(LexisNexis
2005
&
Supp.
2012),
and
the
Truth In Lending Act, 15 U.S.C. § 1666h(a) (2006), must each
fail
because
consumer
the
credit
statutory
schemes
transactions;
they
2
in
do
question
not
protect
provide
only
causes
of
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action
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relating
entities.
2005);
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to
credit
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transactions
between
corporate
See Md. Code Ann., Com. Law § 14-201(c) (LexisNexis
Md.
Code
Ann.,
Com.
Law
§§
13-101(c)-(d),
13-303
(LexisNexis Supp. 2012); 15 U.S.C. §§ 1603(1), 1666h(a) (2006).
By Betskoff’s own representation, the bank account involved in
his suit is a corporate account belonging to a limited liability
company, and the debt that was offset by Bank of America had
accrued on a credit card associated with that corporate account.
The
three
statutory
schemes
that
he
attempts
to
invoke
are
therefore inapplicable to his circumstances.
As
for
Betskoff’s
state
law
conversion
claim,
we
recognize that a defendant may commit conversion even if acting
in “good faith” and without “any consciousness of wrongdoing.”
Nickens v. Mount Vernon Realty Group, LLC, 54 A.3d 742, 757 (Md.
2012)
(citation
omitted).
Yet
Betskoff’s
claim
must
fail
because Maryland law established that money, as an intangible,
is not subject to a claim for conversion unless “a plaintiff can
allege
that
the
defendant
identifiable funds.”
converted
specific
segregated
or
Allied Inv. Corp. v. Jasen, 731 A.2d 957,
966 (Md. 1999); see also Darcars Motors of Silver Spring, Inc.
v. Borzym, 841 A.2d 828, 833 n.3 (Md. 2004).
Because Betskoff’s
funds were commingled with others not only when he deposited
them into a third party’s account but also when Bank of America
used the account funds to offset the credit card delinquency,
3
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“the
cash
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los[t]
Maryland
law,
it
identity
necessary
its
no
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specific
longer
for
identity”
retained
such
that,
discrete,
interests
Betskoff’s
the
in
redressed under a theory of conversion.
under
unitary
it
to
be
Allied Inv. Corp., 731
A.2d at 967; Lasater v. Guttmann, 5 A.3d 79, 88 (Md. Ct. Spec.
App. 2010).
Finally, Betskoff’s claim for intentional infliction
of emotional distress is also doomed, as Bank of America would
not be liable even if it did what the complaint alleges:
It
would not be “extreme and outrageous” for Bank of America to
offset a debt associated with a bank account with funds that
were
deposited
in
that
account,
especially
as
Betskoff
has
admitted that Bank of America did not know the true source of
the funds.
See Manikhi v. Mass Transit Admin., 758 A.2d 95, 113
(Md. 2000) (discussing elements).
Accordingly,
proceed
in
judgment.
legal
before
forma
although
pauperis,
we
we
grant
affirm
Betskoff
the
leave
district
to
court’s
We dispense with oral argument because the facts and
contentions
this
court
are
and
adequately
argument
presented
will
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
4
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