Young v. Thieblot Ryan P.A.

Filing 16

MEMORANDUM. Signed by Judge Ellen L. Hollander on 12/12/11. (bmh, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ALEXANDER YOUNG,
Plaintiff,
v.

Civil Action No.: ELH-11-01562

THIEBLOT RYAN, P.A.,
Defendant.
MEMORANDUM
On June 8, 2011, Alexander Young, plaintiff, filed suit against defendant Thieblot Ryan,
P.A. (“Thieblot Ryan”) under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§
1692 et seq.1 See Amended Complaint (“Complaint,” ECF 9). Defendant has filed a “Motion
To Dismiss Amended Complaint” (“Motion,” ECF 12), as well as a supportive memorandum
(“Motion Memo,” ECF 12-1), seeking dismissal pursuant to FED. R. CIV. P. 12(b)(6), for failure
to state a claim, and pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction. Motion at
1. In general, defendant asserts the affirmative defenses of limitations2 and bona fide error.
Plaintiff opposes the Motion.

See “Plaintiff‟s Response In Support Of His Objection To

Defendant‟s Motion To Dismiss Amended Complaint” (“Opposition,” ECF 15); Plaintiff‟s
Memorandum In Support Of His Response And Objection To Defendant‟s Motion To Dismiss
Amended Complaint” (“Opposition Memo,” ECF 15-1). As the motion has been fully briefed,
the Court rules now pursuant to Local Rule 105.6, no hearing being necessary.

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Jurisdiction in this case is conferred by 15 U.S.C. § 1692k(d) and 28 U.S.C. § 1331.

Claims under the FDCPA must be brought “within one year from the date on which the
violation occurs.” 15 U.S.C. §§ 1692k(d).

Factual Summary
It is undisputed that plaintiff is a consumer within the meaning of the FDCPA, and that
defendant is a debt collector.3 Id. ¶¶ 4-5. Defendant mailed a “collection letter” to plaintiff,
dated May 30, 2010, in which “it attempted to collect „pre-judgment interest‟ included in the
„principal amount of the debt‟” at issue, “without disclosing to the Plaintiff that it had calculated
pre-judgment interest in the principal amount.” Id. ¶ 9. Further, plaintiff asserts that, on July 20,
2010, defendant “caused to be filed a law suit [against plaintiff] in the District Court of Maryland
on behalf of Bank of America,” regarding that same debt.4 Id. ¶ 7. Plaintiff claims that, at the
time of the alleged violations, he did not owe the subject debt.5 Id. ¶ 15.
Plaintiff contends that defendant‟s alleged failure to “disclose the accurate amount of the
principal amount of debt” constituted a violation of 15 U.S.C. § 1692e(2)(A), which prohibits the
use of “false, deceptive, or misleading representation or means in connection with the collection
of any debt,” and observes that the “false representation of . . . the character, amount, or legal
status of any debt” is a violation of the statute. Id. ¶¶ 10-11, 17. Plaintiff also asserts that, “to
facilitate the cause of action against Plaintiff,” “Defendant created . . . an affidavit which was
sworn to by the Banks [sic] Agent” and which was “on its face . . . false and untrue.” Id. ¶¶ 1819.

Further, plaintiff maintains that 15 U.S.C. § 1692e(10) prohibits the use of “false or
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Although the relevant facts for the purposes of the instant motion are largely
undisputed, the Court construes the facts in the light most favorable to plaintiff, as the party
opposing the motion. See Philips v. Pitt County Memorial Hosp., 572 F.3d 176, 180 (4th Cir.
2009).
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Suit was filed in the District Court for Baltimore City (District 1), a State of Maryland
court. A copy of the complaint in that suit and the supporting documents were attached to
plaintiff‟s initial complaint in the case at bar, but were not appended to the Amended Complaint.
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Plaintiff has appended, as Exhibit 2, a letter sent by Bank of America to Mr. Young,
dated May 25, 2010, showing that $3,150.00 was refunded to his account due to fraud. Id. ¶ 15.
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deceptive means to attempt to collect consumer debt.” Id. ¶ 20. In addition, plaintiff contends
that defendant violated 15 U.S.C. §1692f, because its actions “constitute unfair or
unconscionable means of collecting consumer debt.” Id. ¶ 21.
As noted, in moving to dismiss, defendant contends that the claim is barred by
limitations. In addition, defendant relies on the defense of bona fide error.
Standard of Review
Under FED. R. CIV. P. 8(a)(2), a complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.” The purpose of the Rule is to provide the
defendant with “fair notice” of the claim and the “grounds” for entitlement to relief. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-56 n.3 (2007) (citation omitted). To be sure, the plaintiff
need not include “detailed factual allegations in order to satisfy” Rule 8(a)(2). Id. at 555. But,
the Rule demands more than bald accusations or mere speculation. Id. To satisfy the minimal
requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true)
to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is
improbable and . . . recovery is very remote and unlikely.” Id. at 556. A complaint that provides
no more than “labels and conclusions,” or “a formulaic recitation of the elements of a cause of
action,” is insufficient under the Rule. Id. at 555.
A defendant may test the adequacy of a complaint by way of a motion to dismiss under
Rule 12(b)(6). German v. Fox, 267 F. App‟x 231, 233 (4th Cir. 2008). Both Twombly, 550 U.S.
544, and Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009), make clear that, in order to
survive a motion to dismiss under Rule 12(b)(6), a complaint must contain facts sufficient to
“state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Iqbal, 129 S.
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Ct. at 1953 (“Our decision in Twombly expounded the pleading standard for „all civil
actions‟. . .” (citation omitted)); see Simmons v. United Mortgage and Loan Inv., 634 F.3d 754,
768 (4th Cir. 2011); Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009); Giarratano v. Johnson,
521 F.3d 298, 302 (4th Cir. 2008).
In resolving a Rule 12(b)(6) motion, the court is not required to accept legal conclusions
drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Monroe v. City of
Charlottesville, Va., 579 F.3d 380, 385-86 (4th Cir. 2009), cert. denied, ___ U.S. ___, 130 S. Ct.
1740 (2010). Moreover, a motion pursuant to Rule 12(b)(6) ordinarily “does not resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (internal quotation marks omitted).
Defendant has also moved to dismiss under FED. R. CIV. P. 12(b)(1), claiming lack of
subject matter jurisdiction. “It is well established that before a federal court can decide the
merits of a claim, the claim must invoke the jurisdiction of the court.” Miller v. Brown, 462 F.3d
312, 316 (4th Cir. 2006). “[A] motion to dismiss under Rule 12(b)(1) is nonwaivable and may
be brought at any time-even on appeal-regardless of whether a litigant raised the issue in an
initial pleading.” Sucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 548 (4th Cir.
2006); see FED. R. CIV. P. 12(h)(3) (“If the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.”). Once a challenge is made to subject
matter jurisdiction, the plaintiff bears the burden of proving that the Court has subject matter
jurisdiction. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th
Cir.1999).

However, neither of the defenses asserted by defendant (limitations and the

affirmative defense of bona fide error) implicates the subject matter jurisdiction of the court.
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Discussion
Defendant has proposed two grounds for dismissal.

First, defendant argues that

“Plaintiff‟s claim . . . must be dismissed as this action was filed more than one year from the date
that letter was mailed to Plaintiff,” and is thus outside the FDCPA‟s one year statute of
limitations. Motion Memo at 4. Second, defendant denies liability, arguing: “In sending the
letter to Plaintiff and filing the District Court Complaint on behalf of Bank of America,
Defendant relied upon the representation of Bank of America regarding the validity and amount
of the debt.” Id. at 5.
Neither ground withstands scrutiny. The collection letter is not the only conduct of
defendant about which plaintiff complains. He also complains about the litigation that defendant
commenced in Maryland state court on July 20, 2010, which was clearly within one year of the
date plaintiff filed his initial complaint in the case at bar—June 8, 2011.6 Therefore, plaintiff‟s
claim is not barred by the applicable statute of limitations set forth in 15 U.S.C. §§ 1692k(d).
Defendant also relies on Sayyed v. Wolpoff & Abramson, LLP, 773 F. Supp. 2d 635 (D.
Md. 2010),

which states: “[A]ny false or misleading representations made by Defendant

regarding the debt „solely as a result of inaccurate information provided by its client would be a
bona fide error as defined under 15 U.S.CA. § 1692k(c).‟” Motion Memo at 5. However,
Sayyed also makes clear that the assertion of a bona fide error defense “is not a reason to grant a

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Plaintiff also asserts that, as “defendant has failed as of this date to dismiss the state
court law suit against the Plaintiff and has specific knowledge that the amount of debt they filed
suit on is not owed[, ] their failure to dismiss the state court law suit has itself violated the
FDCPA within the past 12 months.” Complaint ¶ 22. Because the lawsuit was filed in state
court within the limitations period, I need not resolve this contention.
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motion to dismiss for failure to state a claim.” 773 F. Supp. 2d at 640. Indeed, in an earlier
ruling in Sayyed, the Fourth Circuit stated:
On remand, [defendant] may of course (1) contend that there were no statutory
violations, or (2) avail itself of the § 1692k(c) defense by showing by a
preponderance of the evidence that any violations were 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). . . . But the
district court erred in dismissing [plaintiff’s] claims outright on the basis of
this concern. The statutory framework establishes that the proper place for
the inquiry is not at the Rule 12(b)(6) stage.
Sayyed v. Wolpoff & Abramson, 485 F.3d 226, 235 (4th Cir. 2007) (emphasis added).
Whether a defendant is entitled to the bona fide error defense will almost always depend,
as it clearly does in this case, on the determination of facts not included in the pleadings.
Motions to dismiss pursuant to Rule 12(b)(6) “generally cannot reach the merits of an affirmative
defense,” except in the “relatively rare circumstances where facts sufficient to rule on an
affirmative defense are alleged in the complaint” and “the plaintiff's potential rejoinder to the
affirmative defense [is] foreclosed by the allegations in the complaint.” Goodman v. Praxair,
Inc., 494 F.3d 458, 464, 466 (4th Cir. 2007).
For the foregoing reasons, I will deny the motion to dismiss of defendant Thieblot Ryan,
P.A. A separate Order consistent with this Memorandum follows.

Date:_December 12, 2011__

/s/
Ellen Lipton Hollander
United States District Judge

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