Abdul Conteh v. Shamrock Community Assoc

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cv-00794-BPG. Copies to all parties and the district court/agency. [999827402] [15-2171]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2171

ABDUL CONTEH; DADAY CONTEH,
Plaintiffs - Appellants,
v.
SHAMROCK COMMUNITY ASSOCIATION, INC.; NAGLE & ZALLER, P.C.,
Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Beth P. Gesner, Magistrate Judge.
(1:14-cv-00794-BPG)

Submitted:

April 29, 2016

Decided:

May 19, 2016

Before KEENAN, WYNN, and THACKER, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

E. David Hoskins, Steven B. Isbister, THE LAW OFFICES OF E.
DAVID HOSKINS, LLC, Baltimore, Maryland, for Appellants.
Craig
B. Zaller, Brian R. Fellner, NAGLE & ZALLER, P.C., Columbia,
Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Abdul

and

Daday

Conteh

(Conteh)

appeal

the

magistrate

judge’s order dismissing their complaint that featured claims
under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.
§§ 1692-1692p (2012), the Maryland Consumer Debt Collection Act,
Md.

Code

Ann.,

Com.

Law

§§ 14-201

to

-204

(2013),

and

the

Maryland Consumer Protection Act (MCPA), Md. Code Ann., Com. Law
§§ 13-101 to -501 (2013).

Conteh’s claims stem from Nagle &

Zaller, P.C. (“Nagle”) filing a writ of execution to satisfy a
judgment in favor of Shamrock Community Association (“Shamrock”)
for condominium homeowner payments that Conteh failed to timely
pay.

Conteh’s complaint alleged that the judgment principal and

amount owed on the judgment as listed in the writ of execution
exceeded the actual judgment principal and amount owed on the
judgment.

The

parties

consented

complaint by a magistrate judge.

to

the

resolution

of

the

Pursuant to Fed. R. Civ. P.

12(b)(6), the magistrate judge dismissed Conteh’s complaint in
its entirety.
We

review

de

novo

the

district

court’s

dismissal

failure to state a claim under Fed. R. Civ. P. 12(b)(6).

for
Sec’y

of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700,
705 (4th Cir. 2007).
dismiss,

a

judge

“[W]hen ruling on a defendant’s motion to

must

accept

as

true

allegations contained in the complaint.”
2

all

of

the

factual

Erickson v. Pardus,

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551 U.S. 89, 94 (2007). “While a complaint attacked by a Rule
12(b)(6)

motion

to

dismiss

does

not

need

detailed

factual

allegations, . . . a formulaic recitation of the elements of a
cause of action will not do” and the complaint must contain
“enough facts to state a claim to relief that is plausible on
its face.”
(2007).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570

Having reviewed the record and the relevant case law,

we affirm the magistrate judge’s order in part, vacate in part,
and remand for further proceedings.
I.
Conteh’s

complaint

provisions

of

listed

inflated

an

judgment.

the

FDCPA

alleged
by

judgment

that

filing

a

principal

Nagle

writ
and

violated
execution

of

two
that

amount

due

on

the

Turning to Conteh’s first claim under the FDCPA, a

debt collector is prohibited from using “any false, deceptive,
or misleading representation or means in connection with the
collection

of

any

debt.”

15

U.S.C.

§ 1692e.

“Whether

a

communication is false, misleading, or deceptive in violation of
§ 1692e

is

determined

sophisticated consumer.’”

from

the

vantage

of

the

‘least

Powell v. Palisades Acquisition XVI,

LLC, 782 F.3d 119, 126 (4th Cir. 2014) (internal quotation marks
omitted).

When viewing a misstatement from the perspective of

the “least sophisticated consumer,” we “consider how a naive
consumer would interpret the statement.”
3

Elyazidi v. SunTrust

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Bank,

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780

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F.3d

marks omitted).

227,

234

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(4th

Cir.

2015)

(internal

quotation

A misstatement must be material to sustain a

claim under 15 U.S.C. §1692e; that is, the misstatement must
have

the

potential

to

“frustrate

[the

least

sophisticated]

consumer’s ability to intelligently choose his or her response,”
id. (internal quotation marks omitted), or must be the type of
misstatement that “would have been important to the consumer in
deciding how to respond to efforts to collect the debt,” Powell,
782 F.3d at 127.
Although
sophisticated

the

magistrate

consumer”

test,

judge
the

stated

magistrate

the

judge

“least
erred

by

relying on how Conteh actually acted when determining whether
Nagle’s misstatement regarding the judgment principal and amount
owed

on

the

judgment

was

material.

Instead,

as

stated

in

Powell, the proper analysis requires consideration of the degree
to which the amount due on the debt was overstated and whether
the extent of the overstatement would have been material to the
least sophisticated consumer.

Id. at 126-27 (noting that “mere

technical falsehoods” are not actionable and that a de minimis
misstatement might not be actionable but that an overstatement
of 50% “easily satisf[ied]” the materiality requirement).

Here,

the writ of execution identified $1,748.98 as the amount Conteh
owed while Conteh’s amended complaint alleged that the amount
due

on

the

judgment

at

the

time
4

the

writ

was

filed

was

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$1,583.96.

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Accordingly,

the

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writ

allegedly

amount owed by $165.02, or by 10.4%.

overstated

the

While the degree of the

alleged overstatement is not as significant as the overstatement
in

Powell,

sufficient

we
to

conclude
be

that

important

an
to

overstatement
how

the

of

least

10.4%

is

sophisticated

consumer responds by causing confusion and a potential challenge
by the consumer to the writ.
increased

potential

for

In so concluding, we note the

confusion

where

the

writ

allegedly

identified a judgment principal from a prejudgment demand letter
even though the state court judgment awarded Shamrock a lesser
judgment

principal

magistrate

judge’s

than

demanded.

dismissal

of

Therefore,
Conteh’s

15

we

vacate

U.S.C.

the

§ 1692e

claim.
Turning to Conteh’s second claim under the FDCPA, a debt
collector

is

prohibited

from

“engag[ing]

in

any

conduct

the

natural consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt.”
§ 1692d.

15 U.S.C.

Other circuits have concluded that the filing of a

debt collection action, or the threat of such action, does not
constitute

harassment

or

abuse

of

the

debtor

where

collector relies on valid state court proceedings.

the

debt

See Harvey

v. Great Seneca Fin. Corp., 453 F.3d 324, 330-31 (6th Cir. 2006)
(holding

that

filing

of

debt

collection

action

did

not

constitute harassment or abuse even when debt collector lacked
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means to establish debt at time of filing action); Jeter v.
Credit

Bureau

Inc.,

760

F.2d

1168,

1179

(11th

Cir.

1985)

(holding that threat of legal action if debt not paid does not
harass

or

abuse

the

debtor).

In

the

context

of

15

U.S.C.

§ 1692f, we have found that a debt collector’s “enforce[ment]
[of] their contractual rights in compliance with state court
procedure”

cannot

plausibly

unconscionable” conduct.

be

construed

as

“unfair

Elyazidi, 780 F.3d at 235.

or

We apply

our holding in Elyazidi and adopt the position stated in Harvey
to conclude that a debt collector’s initiation of a state court
proceeding cannot legally constitute harassment, oppression, or
abuse of the debtor. 1

Accordingly, we affirm the magistrate

judge’s dismissal of Conteh’s claim under 15 U.S.C. § 1692d.
II.
With

respect

to

the

MCDCA,

Conteh’s

amended

complaint

alleged that the filing of and the misstatement in the writ of
execution violated Md. Code Ann., Com. Law §§ 14-202(6), (8).
The magistrate judge concluded that Nagle and Shamrock did not
1

On appeal, Conteh contends that the filing of the writ of
execution constituted harassment because Nagle knew there was no
equity in the condominium unit in seeking to force its sale to
satisfy the judgment in favor of Shamrock.
We find no legal
authority supporting Conteh’s argument and decline to adopt the
argument, given that the alleged lack of equity in the
condominium at the time the writ was filed did not necessarily
foreclose Nagle from recovering all or part of the judgment owed
through the sale of the condominium.

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violate § 14-202(6) because the filing of a writ of execution is
not a communication with the debtor and that no violation of
§ 14-202(8) occurred because, although the writ of execution may
have sought an amount in excess of the amount owed, the writ was
filed in an effort to recover a valid debt.
Under

Md.

Code

Ann.,

Com.

Law

§ 14-202(6),

a

debt

collector, in collecting or attempting to collect an alleged
debt, may not “[c]ommunicate with the debtor or a person related
to him with the frequency, at the unusual hours, or in any other
manner as reasonably can be expected to abuse or harass the
debtor.”
conclude

As with Conteh’s claim under 15 U.S.C. § 1692d, we
that

a

debt

collector’s

resort

to

state

court

proceedings and the filing of a writ of execution cannot legally
constitute a communication that harasses or abuses the debtor.
Accordingly, we decline to address whether the filing of a writ
of execution constitutes a type of communication sufficient to
trigger

the

protections

afforded

by

Md.

Code

Ann.,

Com.

Law

§ 14-202(6); instead, we affirm the magistrate judge’s dismissal
on this alternative ground.
Sys.,

Inc.,

432

F.3d

564,

Cf. Toll Bros., Inc. v. Dryvit
572

(4th

Cir.

2005)

(noting

that

appellate court may affirm a grant of summary judgment “on any
ground appearing in the record”).
Pursuant to Md. Code Ann., Com. Law § 14-202(8), a debt
collector may not “[c]laim, attempt, or threaten to enforce a
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right with knowledge that the right does not exist.”

A debt

collector

on

violates

this

provision

by

placing

a

lien

the

debtor’s property for an amount in excess of the amount to which
the debt collector is rightfully entitled if the amount sought
exceeds the amount owed as a result of the debt collector’s
inclusion of an unauthorized type of charge.

See Allstate Lien

& Recovery Corp. v. Stansbury, 101 A.3d 520, 529-30 (Md. Ct.
Spec. App. 2014) (holding that debt collector’s inclusion of
unauthorized $1,000 processing fee in filing of lien constituted
seeking right that did not exist for purposes of § 14-202(8)
even though lien was filed on valid debt).

Although the writ of

execution allegedly sought an amount in excess of what Conteh
owed, because the magistrate judge dismissed the case prior to
discovery,

it

is

not

apparent

from

the

record

whether

the

alleged misstatement of the amount owed was the result of a
typographical or mathematical error by Nagle or whether it was
the result of Nagle and Shamrock including a type of charge not
authorized

by

satisfaction.

the

underlying

Therefore,

we

judgment
vacate

on
the

which

they

magistrate

sought
judge’s

dismissal of Conteh’s claim under Md. Code Ann., Com. Law § 14202(8) and remand for further proceedings. 2

2

Because we vacate the dismissal of one of Conteh’s claims
under the MCDCA, we also vacate the magistrate judge’s dismissal
of Conteh’s claim under the MCPA.
See Md. Code Ann., Com. Law
(Continued)
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Accordingly, we affirm the magistrate judge’s order with
respect

to

the

dismissal

of

Conteh’s

claims

under

15

U.S.C.

§ 1692d and Md. Code Ann., Com. Law § 14-202(6), but vacate the
order with respect to the dismissal of Conteh’s claims under 15
U.S.C.

§1692e

and

Md.

Code

Ann.,

Com.

Law

§ 14-202(8).

We

remand for further proceedings consistent with this opinion.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

§ 13-301(14)(iii) (providing that plaintiff makes out viable
claim for violation of MCPA by pleading viable MCDCA violation).

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