Garner v. Claimassist, LLC, et al
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 3/22/2017. (bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Individually and on behalf of all others
Civil Action No. ELH-16-1260
CLAIMASSIST, LLC, et al.
Jessica Garner, plaintiff, individually and on behalf of all others similarly situated,
initiated a class action against defendants ClaimAssist, LLC (“ClaimAssist”); Credit Control
Services, Inc. (“CCS”); and CCS Financial Services, Inc. (“CCS Financial”), 1 alleging violations
of the Fair Debt Collection Practices Act (“FDCPA” or “Act”), as amended, 15 U.S.C. § 1692 et
seq. ECF 1. According to plaintiff, ClaimAssist, CCS, and CCS Financial operate, in effect, as a
single entity. ECF 1, ¶¶ 6, 7.
In particular, Garner alleges that ClaimAssist is a debt collector that violated the FDCPA
because it made false representations and used deceptive or misleading means to attempt to
collect a debt from a consumer. She relies, inter alia, on a letter dated April 28, 2015, sent by
ClaimAssist to plaintiff’s tort lawyer, asserting that a hospital lien had been lodged against
plaintiff on behalf of Northwest Hospital. Id. ¶¶ 11, 12, 27, 28; ECF 1-1.
Defendants answered the suit. ECF 8 (ClaimAssist); ECF 9 (CCS; CCS Financial).
Thereafter, they filed a Motion for Judgment on the Pleadings (ECF 20), which is supported by a
CCS Financial allegedly trades as CCS Global Holdings, Inc.; CCS Resources, Inc.;
CCS Commercial, LLC; CCS Financial Services Business Trust; CCS Global Management,
LLC; CCS Holding Business Trust; and CCS National, LLC. ECF 1, ¶¶ 6, 7.
Memorandum of Law. ECF 21 (collectively, “Motion”). Garner opposes the Motion (ECF 26,
“Opposition) and defendants have replied. ECF 27 (“Reply”).
The Motion is fully briefed and no hearing is required to resolve it. See Local Rule
105.6. For the reasons that follow, I shall deny the Motion.
Factual History 2
ClaimAssist is a limited liability company, formed under the laws of Delaware, with its
principal office in Newton, Massachusetts. ECF 1, ¶ 5. It “holds itself out, in publicly available
documents, as providing ‘recovery services’ (i.e., debt collection services) ‘for the health care
industry.’” Id. According to the Complaint, customer service representatives of Claim Assist
“actively negotiate and settle outstanding alleged debt amounts on behalf of” its “medical
provider clients.” Id. ClaimAssist is publicly identified as a CCS company that is “‘proven to
maximize overall recoveries.’” Id. Indeed, ClaimAssist “touts itself ‘as a leader in recovering
Revenue Cycle Funds.’” Id.
CCS and CSS Financial are Delaware corporations that maintain their principal offices in
Newton, Massachusetts. Id. ¶ 6, ¶ 7. CSS “is the owner and manager” of ClaimAssist and “in
that capacity directs and/or is legally responsible for the acts and omissions of ClaimAssist,
LLC . . . .” Id. CCS Financial is the manager of ClaimAssist and, “in that capacity directs
and/or is legally responsible for the acts and omissions of ClaimAssist.” Id. According to
plaintiff, CCS Financial and/or ClaimAssist “improperly disregard corporate formalities and
effectively operate a single ‘CCS’ . . . .” Id. Hereafter, unless the context indicates otherwise, I
shall refer to defendants collectively as “ClaimAssist.”
Given the posture of the case, I accept as true the facts alleged in the Complaint.
The FDCPA case is rooted in the events of May 16, 2014, when Garner was involved in a
motor vehicle accident in Baltimore. Id. ¶ 9 (the “Collision”). From the scene of the Collision,
“Garner was transported via ambulance to Northwest Hospital,” where she received medical
treatment. Id. ¶ 10. As a result, Garner incurred a debt to Northwest Hospital (the “Hospital” or
“NWH”). Id. In connection with the Collision, Garner retained a lawyer, Michael Greene, to
represent her in a tort case. Greene now represents Garner in the FDCPA action.
On April 28, 2015, ClaimAssist sent Greene a letter. Id. ¶ 11; see ECF 1-1 (“Letter”).
Page one of the Letter provides, ECF 1-1 at 1:
Dear MR GREEN [sic],
The attached is a copy of the lien in which [sic] NORTHWEST HOSPITAL has
filed with BALTIMORE CITY CIRCUIT COURT.
This is to inform you that we statutorily attach a hospital lien to any funds that an
injured patient may receive as reimbursement as a result of an accident or injury.
Title 16 S16-601 is the Maryland Statute providing the legal means of insuring
payment of the injured person's hospital bill. The lien is filed when the possibility
exists that other persons, firms or corporations may be liable for damages caused
to the patient.
An example would be if a person was injured in an automobile accident and an
insurance company was expected to cover the related hospital expenses, the
hospital would file a lien to insure that they would be paid out of any recovered
The patient and/or person or company who appear on the lien is provided a copy
of said lien by certified mail.
Please let me know if you have any questions about this procedure.
Page two of the Letter is titled “NOTICE AND CLAIM OF HOSPITAL LIEN.” ECF 11 at 2. A facsimile of page two of the Letter is included below.
As the Letter reflects, page two includes, inter alia, Garner’s name and address, and
provides that Garner was admitted to the Hospital on May 16, 2014, and discharged from the
Hospital on the same date. ECF 1-1 at 2. Further, it indicates: “Amount due [to NWH] for care
for $801.16. Id.
The Letter identifies NWH as the “Claimant Hospital” and Raja Khoury, who signed
page one of the Letter on behalf of ClaimAssist, as the “Executive Officer or Agent of Hospital.”
Id. The Letter also includes the following statement, id.:
The above named hospital pursuant to laws of the State of Maryland in such cases
made and provided, does hereby claim a lien upon any and all causes of action,
suits, claims, counter-claims, or demands for damages accruing to the patient
named herein, or to the legal representative of such patient, on account of injuries
giving rise to such causes of action and which necessitated his or her
hospitalization, for its customary charges for hospital care and treatment of the
above named injured patient in the sum hereinabove claimed to be clue.
In addition, the Letter provides, id.: “No other responsible parties identified at this time.”
According to plaintiff, the Letter inaccurately stated that she owed $801.16 to NWH.
ECF 1, ¶ 12. Garner does not seem to dispute that a debt was owed to the Hospital. Rather, she
claims that she had “health insurance (and/or other contractual / legal relationship) with Aetna
insurance . . . and U.S. Medicare . . . .” and the Hospital and ClaimAssist were legally required to
process the bill for hospital services consistent with NWH’s agreements with Aetna and
Medicare. Id. According to plaintiff, the bill had not been processed as of April 28, 2015. Id.
Therefore, “the alleged debt amount of $801.16 was plainly false, inaccurate, deceptive, and/or
misleading (including by being not certain, and known to be so).” Id.
Standard of Review
Defendants have moved for judgment on the pleadings pursuant to Fed. R. Civ. P.
Under Rule 12(h)(2)(B), a defendant may assert “failure to state a claim upon which
relief can be granted” in a Rule 12(c) motion. And, a Rule 12(c) motion “for judgment on the
pleadings” may be filed “[a]fter the pleadings are closed,” so long as it is “early enough not to
delay trial.” A motion under Rule 12(c) is “assessed under the same standard that applies to a
Rule 12(b)(6) motion.” Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009) (citing Edwards v.
City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see also McBurney v. Cuccinelli, 616
F.3d 393, 408 (4th Cir. 2010).
A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss
under Rule 12(b)(6). Goines v. Valley Cmty, Servs, Bd., 822 F.3d 159, 165-66 (4th Cir. 2016);
McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom. McBurney v. Young,
___ U.S. ____, 133 S. Ct. 1709 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th
Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the wellpleaded allegations are true, the complaint fails as a matter of law “to state a claim upon which
relief can be granted.” Whether a complaint states a claim for relief is assessed by reference to
the pleading requirements of Fed. R. Civ. P. 8(a)(2). It provides that 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 defendants with “fair notice” of the claims and the
“grounds” for entitlement to relief. Bell Atl., Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
To survive a motion under Fed. R. Civ. P. 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
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading
standard for ‘all civil actions’ . . . .” (citation omitted)); see also Hall v. DirecTV, LLC, ___F.3d
___, No. 15-1857, 2017 WL 361065, at *4 (4th Cir. Jan. 25, 2017). But, a plaintiff need not
include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.
Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect
statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, ___ U.S.
____, 135 S. Ct. 346, 346 (2014) (per curiam).
Nevertheless, the rule demands more than bald accusations or mere speculation.
Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir.
2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. Rather, 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.” Twombly, 550 U.S. at
556 (internal quotations omitted).
In reviewing a Rule 12(b)(6) motion, a court “‘must accept as true all of the factual
allegations contained in the complaint’” and must “‘draw all reasonable inferences [from those
facts] in favor of the plaintiff.’” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d
435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. Maryland Transit Admin., 845 F.3d
564, 567 (4th Cir. 2017); Belmora LLC v. Bayer Consumer Care AG, 819 F.3d 697, 705 (4th Cir.
2016); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is
not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S.
265, 286 (1986). “A court decides whether [the pleading] standard is met by separating the legal
conclusions from the factual allegations, assuming the truth of only the factual allegations, and
then determining whether those allegations allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346
(4th. Cir. 2011), cert. denied, ___ U.S. ____, 132 S. Ct. 1960 (2012).
In general, courts do not “resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses” through a Rule 12(b)(6) motion. Edwards v. City of Goldsboro,
178 F.3d 231, 243 (4th Cir. 1999). The purpose of the rule is to ensure that defendants are
“given adequate notice of the nature of a claim” made against them. Twombly, 550 U.S. at 555–
But, “in the relatively rare circumstances where facts sufficient to rule on an
affirmative defense are alleged in the complaint, the defense may be reached by a motion to
dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007)
(en banc); accord Pressley v. Tupperware Long Term Disability Plan, 533 F.3d 334, 336 (4th
Cir. 2009); see also U.S. ex rel. Oberg v. Penn. Higher Educ. Assistance Agency, 745 F.3d 131,
148 (4th Cir. 2014). However, because Rule 12(b)(6) “is intended [only] to test the legal
adequacy of the complaint,” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d
244, 250 (4th Cir. 1993), “[t]his principle only applies . . . if all facts necessary to the affirmative
defense ‘clearly appear[ ] on the face of the complaint.’” Goodman, 494 F.3d at 464 (quoting
Forst, 4 F.3d at 250) (emphasis added in Goodman ).
Under limited exceptions, a court may consider documents outside the complaint, without
converting the motion to dismiss to one for summary judgment. Goldfarb v. Mayor & City
Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). In particular, a court may properly
consider documents that are “explicitly incorporated into the complaint by reference and those
attached to the complaint as exhibits . . . .” Goines, 822 F.3d at 166 (citations omitted); see U.S.
ex rel. Oberg, 745 F.3d at 136 (quoting Philips v. Pitt Cty Memorial Hosp., 572 F.3d 176, 180
(4th Cir. 2009)); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); Am.
Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied,
543 U.S. 979 (2004); Phillips v. LCI Int'l Inc., 190 F.3d 609, 618 (4th Cir. 1999).
However, “before treating the contents of an attached or incorporated document as true,
the district court should consider the nature of the document and why the plaintiff attached it.”
Goines, 822 F.3d at 167 (citing N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d
449, 455 (7th Cir. 1998)). “When the plaintiff attaches or incorporates a document upon which
his claim is based, or when the complaint otherwise shows that the plaintiff has adopted the
contents of the document, crediting the document over conflicting allegations in the complaint is
proper.” Goines, 822 F.3d at 167. Conversely, “where the plaintiff attaches or incorporates a
document for purposes other than the truthfulness of the document, it is inappropriate to treat the
contents of that document as true.” Id.
Here, plaintiff included the Letter as an exhibit to the Complaint. And, the claims in the
Complaint are based upon the content of the Letter. ECF 1 ¶ 11. The Letter is integral to the
Complaint, and there is no dispute as to its authenticity. See ECF 20; ECF 21. Consequently, I
may consider the Letter.
Overview of the FDCPA
Congress enacted the FDCPA in 1977 (see Pub. L. 95–109, 91 Stat. 874 (1977)) to
protect consumers from debt collectors who engage in “abusive, deceptive, and unfair debt
collection practices,” to “insure that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to promote consistent State action
to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e); see Jerman v.
Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010); United States v. Nat’l
Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996). The statute is concerned with “rights for
consumers whose debts are placed in the hands of professional debt collectors . . . .” DeSantis v.
Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001); see also Ruth v. Triumph Partnerships,
577 F.3d 790, 797 (7th Cir. 2009).
“A significant purpose of the Act” is the elimination of “abusive practices by debt
collectors . . . .” Brown v. Card Service Center, 464 F.3d 450, 453 (3d Cir. 2006). Because the
FDCPA is a remedial statute, it is construed liberally in favor of the debtor. Id.; see, e.g., Russell
v. Absolute Collection Servs., Inc., 763 F.3d 385, 393 (4th Cir. 2014) (citing Atchison, Topeka &
Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 561-62 (1987)) (recognizing the canon of statutory
interpretation that remedial statutes are to be construed liberally)); Glover v. F.D.I.C., 698 F.3d
139, 149 (3d Cir. 2012); Hamilton v. United Healthcare of La., 310 F.3d 385, 392 (5th Cir.
To establish a claim under the FDCPA, “a plaintiff must prove that: ‘(1) the plaintiff has
been the object of collection activity arising from consumer debt; (2) the defendant is a debt
collector as defined by the FDCPA; and (3) the defendant has engaged in an act or omission
prohibited by the FDCPA.’” Boosahda v. Providence Dane LLC, 462 Fed. App’x 331, 333 n.3
(4th Cir. 2012) (quoting Ruggia v. Wash. Mut., 719 F. Supp. 2d 642, 647 (E.D. Va. 2010)); see
Stewart v. Bierman, 859 F. Supp. 2d 754, 759 (D. Md. 2012). “Debt collectors that violate the
FDCPA are liable to the debtor for actual damages, costs, and reasonable attorney’s fees.”
Russell, 763 F.3d at 389 (citing 15 U.S.C. § 1692k(a)(1), (a)(3)). “The FDCPA also provides the
potential for statutory damages up to $1,000 subject to the district court’s discretion.” Id. (citing
15 U.S.C. § 1692k(a)(2)(A)).
Title 15 of the United States Code provides, at § 1692e(10): “A debt collector may not
use any false, deceptive, or misleading representation or means in connection with the collection
of any debt. Without limiting the general application of the foregoing, the following conduct is a
violation of this section: . . . (10) The use of any false representation or deceptive means to
collect or attempt to collect any debt or to obtain information concerning a consumer.” Section
1692f of the same Title states, in pertinent part: “A debt collector may not use unfair or
unconscionable means to collect or attempt to collect any debt.”
The FDCPA defines the term “debt collector” as “any person who uses any
instrumentality of interstate commerce or the mails in any business the principal purpose of
which is the collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6)
(emphasis added); see Schlegel v. Wells Fargo Bank, N.A., 720 F.3d 1204, 1208-09 (9th Cir.
2013); Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 404 (3d Cir. 2000). Thus, the original
creditor is not a debt collector. Carter v. AMC, LLC, 645 F.3d 840, 843 (7th Cir. 2011).
Moreover, under the Act, the definition of “debt collector” does not include an entity that is
“collecting or attempting to collect any debt . . . to the extent such activity . . . (iii) concerns a
debt which was not in default at the time it was obtained by such person . . . .” Id. § 1692a(6)(F).
A “creditor” is defined as “any person who offers or extends credit creating a debt or to
whom a debt is owed, but such term does not include any person to the extent that he receives an
assignment or transfer of a debt in default solely for the purpose of facilitating collection of such
debt for another.” 15 U.S.C. § 1692a(4). Generally, entities servicing or collecting a debt they
were assigned before default are considered “creditors” under the Act.
“The structure of the Act suggests” that an entity receiving or attempting to collect
money due on a debt “must be one or the other,” that is, either a debt collector or a creditor.
Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 538 (7th Cir. 2003). Creditors and debtors
are generally “mutually exclusive” categories under the FDCPA. Schlosser, 323 F.3d at 536; see
F.T.C. Check Investors, Inc., 502 F.3d 159, 173 (3d Cir. 2007) (“[A]s to a specific debt, one
cannot be both a ‘creditor’ and a ‘debt collector,’ as defined in the FDCPA, because those terms
are mutually exclusive.”); accord, e.g., Bradford v. HSBC Mortgage Corp., 829 F. Supp. 2d 340,
348 (E.D. Va. 2011).
The status of the entity, i.e., debt collector or creditor, is determined with respect to the
particular debt at issue and depends on the purpose for which the entity is assigned the debt. See
15 U.S.C. § 1692a(4) (excluding from definition of “creditor” a person who “receives an
assignment or transfer of a debt in default solely for the purpose of facilitating collection of such
debt for another”) (emphasis added); id. § 1692(a)(6)(F)(iii) (excluding from definition of “debt
collector” a person who is collecting “any debt … to the extent such activity . . . (iii) concerns a
debt which was not in default at the time it was obtained . . . .”) (emphasis added). “If the one
who acquired the debt continues to service it, it is acting much like the original creditor that
created the debt.” Schlosser, 323 F.3d at 536. “On the other hand, if [the entity] simply acquires
the debt for collection, it is acting more like a debt collector.” Id. And, “[t]o distinguish
between these two possibilities, the Act uses the status of the debt at the time of the
assignment . . . .”
Schlosser, 323 F.3d at 536; see also 15 U.S.C. § 1692a(4); id. §
1692a(6)(F)(iii); Ruth, supra, 577 F.3d at 796 (“‘Where, as here, the party seeking to collect a
debt did not originate it but instead acquired it from another party, we have held that the party’s
status under the FDCPA turns on whether the debt was in default at the time it was acquired.’”).
Additional statutory provisions are discussed, infra.
Defendants assert three grounds to support their Motion. First, defendants claim that they
cannot be liable for a breach of the FDCPA because ClaimAssist is not a debt collector within
the meaning of the Act. ECF 21 at 7-12. Second, defendants argue that, even if ClaimAssist is a
debt collector under the statute, the Letter was not an attempt to collect a debt. Id. at 12-15.
Finally, defendants argue that the suit fails to state a claim for which relief may be granted
because the Letter is not a “communication” to collect a “debt,” within the meaning of the
FDCPA. Id. at 15-16. 3
Defendants claim that Garner has failed to state a claim because ClaimAssist is not a
“debt collector” within the meaning of the FDCPA. ECF 21 at 7-12. According to ClaimAssist,
it cannot be a debt collector if it has not acquired the authority to collect money on behalf of
NWH. ECF 21 at 7. And, defendants claim that the debt was not yet in default when the Letter
was sent. ECF 21 at 15 n. 5.
At this stage of the litigation, the Court cannot determine whether Garner was in default
when the Letter was sent. Such a claim is similar to an affirmative defense, and can only support
dismissal in the rare circumstance where it is clear from the face of the complaint that the debt
was not in default. See Goodman, supra, 494 F.3d at 464.
To be sure, the Complaint does not expressly allege that ClaimAssist acquired the debt.
See ECF 1. But, the Fourth Circuit has recognized that an entity need not acquire a debt in order
to be a “debt collector.” In McCray v. Fed. Home Loan Mortg. Corp., 839 F.3d 354 (4th Cir.
2016), the Fourth Circuit considered, inter alia, whether a law firm retained to foreclose on a
The review of the contentions requires the Court to address similar arguments in
home following a default on a mortgage could be considered a “debt collector” under the statute.
Id. at 358-59. The law firm claimed that it should not be considered a debt collector because
plaintiff had “‘failed to plead any facts indicating that [the firm] had made any demands for
payment, or that they in any way communicated deadlines and penalties for McCray’s failure to
make any payment.’” Id. at 359 (emphasis and alteration in McCray). And, the law firm
claimed that a foreclosure action is “‘fundamentally distinct from a debt collection activity
covered under the FDCPA.’” Id.
The McCray Court observed: “The FDCPA's definition of debt collector . . . does not
include any requirement that a debt collector be engaged in an activity by which it makes a
‘demand for payment’ . . . .” Id. at 359. The Court concluded: “‘[T]o be actionable under . . .
the FDCPA, a debt collector needs only to have used a prohibited practice ‘in connection with
the collection of any debt’ or in an ‘attempt to collect any debt.’’” Id. (citing Powell v. Palisades
Acquisition XVI, LLC, 782 F.3d 119, 123 (4th Cir. 2014)) (emphasis in McCray).
Writing for the panel in McCray, Judge Niemeyer also said, 839 F.3d at 361 (emphasis
It is clear from the complaint in this case that the whole reason that the
White Firm and its members were retained by Wells Fargo was to attempt,
through the process of foreclosure, to collect on the $66,500 loan in default.
McCray's complaint alleged that the White Firm is a “debt collection law firm”
that mailed her a notice of intent to foreclose, which explicitly stated that it was
attempting to collect on her debt, and that then filed a foreclosure action against
The Supreme Court’s decision in Heintz v. Jenkins, 514 U.S. 291 (1995), also provides
guidance. There, the Court considered whether a lawyer who regularly collected consumer debts
through litigation activities could be considered a “debt collector” under the FDCPA. Id. at 292.
The Court observed: “To collect a debt or claim is to obtain payment or liquidation of it, either
by personal solicitation or legal proceedings.” Id. at 294 (quoting Black’s Law Dictionary 263
(6th ed. 1990)). Based on that definition, the Supreme Court declared, Heintz, 514 U.S. at 294:
“In ordinary English, a lawyer who regularly tries to obtain payment of consumer debts through
legal proceedings is a lawyer who regularly ‘attempts’ to ‘collect’ those consumer debts.”
Accord Glazer v. Chase Home Finance LLC, 704 F.3d 453, 461 (6th Cir. 2013).
The Fourth Circuit’s decision in Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373
(4th Cir. 2006), is also informative. There, the borrower brought suit under the FDCPA against a
law firm and a lawyer in connection with foreclosure proceedings initiated by the defendants.
The defendants argued that they were not covered by the FDCPA, because foreclosure by a
trustee under a deed of trust is a termination of the debtor’s equity of redemption as to the
debtor’s property, not enforcement of an obligation to pay a debt. Id. at 376. Defendants wrote
to the debtor, referencing the FDCPA and stating: “‘[T]his letter is an attempt to collect a debt.’”
Id. at 374. The letter also specified the amount of the debt and instructed the plaintiff to pay that
amount. Id. at 375. The district court granted summary judgment to the defendants, concluding
that “‘[t]rustees foreclosing on a property pursuant to a deed of trust are not ‘debt collectors’
under the [Act].’” Id. The Fourth Circuit reversed.
The Court concluded that attorneys “acting in connection with a foreclosure can be ‘debt
collectors’ under the Act . . . .” Id. It stated: “We see no reason to make an exception to the
Act when the debt collector uses foreclosure instead of other methods.” Id. The Court reasoned
that the “‘debt’ remained a ‘debt’ even after foreclosure proceedings commenced.” Id. at 376.
Moreover, it observed that the defendants’ arguments “would create an enormous loophole in the
Act immunizing any debt from coverage if that debt happened to be secured by a real property
interest and foreclosure proceedings were used to collect the debt.” Id.
Defendants rely on Gould v. Claimassist, 876 F. Supp. 2d 1018, 1022 (S.D. Ill. 2012), for
the proposition that they are not debt collectors. The opinion in Gould resolved a motion for
summary judgment following the conclusion of discovery.
In Gould, plaintiff alleged that a hospital had transferred a medical debt of $3,453 to
ClaimAssist for collection. Id. at 1020. ClaimAssist then sent Gould a letter that stated, inter
alia, that Gould owed a balance of $3,453. Id. The letter also said, id. (alteration in original):
ClaimAssist has partnered with Southern Illinois Healthcare [sic] to process this
As you may know, the paperwork associated with healthcare claims can be
complex. ClaimAssist will work on your behalf in resolving this matter. Kindly
complete the attached Accident Information Form and return in the envelope
provided. You may also consider completing the form by using our website:
Once we receive this information, we will prepare your claim and submit the
required paperwork to your insurance company.
If you have an attorney working on this claim, please send us their name, address,
and telephone number. We will contact them to discuss the proper handling of this
If you have any questions, or need more information, please feel free to contact
me at the telephone number listed below. Thank you in advance for your prompt
attention to this matter.
The court also considered the affidavit of the associate general counsel for the hospital,
who explained the billing process and practices of the hospital. See id. at 1021. The trial court
described the affidavit, stating, id. at 1018:
Defendant specifically helps the Hospital process the third-party-payor claims that
arise from motor-vehicle and work-related accidents. Then, when all claims have
been processed by third-party payors, if a balance is still owed, the Hospital will
bill the patient through a medical billing company. And at that point, if the patient
does not pay, the Hospital may send the account to a collection agency. The
Hospital uses a different company for collections, not defendant.
Of relevance here, the court stated that there was no evidence that ClaimAssist “ever
obtained plaintiff’s debt from the Hospital or that it otherwise acquired ‘authority to collect the
money on behalf of another.’” Id. at 1022. This, according to the court, was “reason enough to
grant defendant’s motion for summary judgment.” Id. The court also noted that summary
judgment was appropriate because plaintiff’s debt was not in default when ClaimAssist sent the
letter. Id. at 1023.
Given the content of the letter, and based on facts obtained during discovery, the court
granted ClaimAssist’s motion for summary judgment. 876 F. Supp. 2d at 1025. The district
court said, id. at 1022:
Plaintiff presents no evidence that defendant is a “business the principal purpose
of which is the collection of any debts, or who regularly collects . . . debts owed
or due . . . another.” § 1692a(6). Further, [the general counsel for the hospital]
specifically says the debt for plaintiff's medical services was still owed to the
Hospital when it referred plaintiff's account to defendant.
According to ClaimAssist, “NWH’s hospital debt, like the Gould obligation, was never
assigned or transferred to ClaimAssist for collection from the Plaintiff.”
ECF 21 at 8.
Defendants add that plaintiff here, like the plaintiff in Gould, “failed to provide any evidence
illustrating that an assignment or transfer took place . . . .” Id. However, at this juncture, before
any discovery has taken place, plaintiff is not required to produce evidence.
reliance on Gould is misplaced; the procedural posture of Gould makes it inapplicable.
Further, although the Complaint does not expressly allege that NWH assigned the debt to
ClaimAssist, one can reasonably infer that ClaimAssist acquired authority to place the Hospital
Lien on NWH’s behalf. See ECF 1-1; cf Gould, 876 F. Supp. 2d at 1022. Moreover, the letter
sent to the plaintiff in Gould did not notify him of the placement of a lien or in any way indicate
that the creditor was seeking to collect on a debt. See Gould, 876 F. Supp. 2d at 1020. Rather, it
explained that ClaimAssist would work with plaintiff to resolve the balance by assisting him
with the preparation and submission of paperwork to the plaintiff’s insurance company. Id. The
facial purpose of the letter in Gould – to assist the debtor in filing the necessary paperwork with
an insurance company – is hardly comparable to the facial purpose of the Letter here — to notify
plaintiff of the Hospital Lien, based on money that she owed. Compare id. with ECF 1-1.
In her Complaint, Garner asserts, inter alia, that ClaimAssist “holds itself out, in publicly
available documents, as providing ‘recovery services’ . . . ‘for the health care industry.’” ECF 1,
¶ 5. In addition, ClaimAssist’s “‘customer service representatives . . . actively negotiate and
settle outstanding alleged debt amounts on behalf of ClaimAssist, LLC’s retaining medical
provider clients.’” Id. Moreover, the allegations in the Complaint, including the Letter, indicate
that ClaimAssist was retained by NWH to place a hospital lien in order to collect the $801.16
that NWH claimed was due from plaintiff. See ECF 1-1 at 2.
Notably, the Letter included the name and address of the creditor (NWH); the amount
due of $801.16; the hospital stay from which the debt arose (May 16, 2014); and that
ClaimAssist had lodged a lien to recover the “customary charges for hospital care and treatment
of the above named injured patient in the sum hereinabove claimed to be due.” ECF 1-1 at 2.
Moreover, the Letter was sent more than eleven months after Garner was discharged from the
Hospital, which reasonably allows for the inference that Garner’s payment was past due. See
ECF 1-1. ClaimAssist secured the lien; it did not merely advise NWH on how to place the lien.
See ECF 1-1; ECF 1 ¶¶ 11-12; see also ECF 21 at 8 (“With respect to Plaintiff, ClaimAssist
placed the lien and provided notice of NWH's lien to Attorney Greene, comporting with
Maryland lien notice requirements.”).
In sum, accepting the allegations in the Complaint as true, and viewing the allegations in
the Complaint and the Letter in the light most favorable to the plaintiff, Garner has adequately
alleged that ClaimAssist is a “debt collector” within the meaning of the FDCPA. The facts
alleged are sufficient to support plaintiff’s claim that “defendants’ activities were taken in
connection with the collection of a debt or in an attempt to collect a debt.” McCray, 839 F.3d at
361 (emphasis in McCray). The Complaint also adequately alleges that ClaimAssist “regularly
collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or
due another.” 15 U.S.C. § 1692a(6).
ClaimAssist contends that it was not acting to collect a debt. Rather, it merely complied
with obligations under Maryland law to provide a statutorily required notice of a Hospital Lien.
ClaimAssist states: “NWH hired ClaimAssist for the purpose of complying with statespecific lien requirements, among other things, including placing the liens and providing notice
of the liens as required by statute.” ECF 21 at 8. Moreover, ClaimAssist contends that it “placed
the lien and provided notice of NWH’s lien to Attorney Greene, comporting with Maryland lien
notice requirements.” Id. In addition, ClaimAssist asserts that its “communication with the
Plaintiff was not in furtherance of a collection from the Plaintiff, but was only to provide
statutorily required notice,” pursuant to Md. Code (2013 Repl. Vol., 2016 Supp.), § 16-601 et
seq. of the Commercial Law Article (“C.L.”) (“Hospital Lien Statute”).
C.L. § 16-601(a) provides:
A hospital which furnishes medical or other services to a patient injured in an
accident not covered by the Maryland Workers' Compensation Act has a lien on
50 percent of the recovery or sum which the patient or, in case of death, the heirs
or personal representative of the patient collect in judgment, settlement, or
compromise of the patient's claim against another for damages on account of the
C.L. § 16-602 is also pertinent. It states:
(a) A lien is not effective under this subtitle unless, before payment of any money
to the patient, his attorney, heirs, or personal representative as compensation for
the injuries, the hospital:
(1) Files a notice of lien with the clerk of the circuit court of the county
where the medical or other services were provided; and
(2) Sends a copy of the notice of lien and a statement of the date of its
filing by registered or certified mail to the person alleged to be liable for
the injuries received by the patient.
(b) The notice of lien shall be in writing and shall contain:
(1) The name and address of the injured patient;
(2) The date of the accident;
(3) The name and location of the hospital;
(4) The amount claimed; and
(5) The name of the person alleged to be liable for the injuries received.
(c) The hospital also shall send a copy of the notice of lien by registered or
certified mail to any insurance carrier known to insure the person alleged to be
liable for the injuries received by the patient.
According to ClaimAssist, its “purpose in sending the letter at issue was to provide notice
of claims in accordance with the requirements” of the Hospital Lien Statute. ECF 21 at 11.
ClaimAssist maintains that the Letter “adheres to all of the requirements established by” the
Hospital Lien Statute. Id. ClaimAssist also points out: “Substantial portions of the Letter are
taken verbatim from the Maryland Hospital Lien Law.” Id. at 12. Thus, ClaimAssist concludes
that “it simply is not plausible that Plaintiff’s counsel could have interpreted the Letter as
attempting to do anything” other than to provide a “statutorily required notice of claim . . . .” Id.
That the Letter cites the Maryland Hospital Lien Statute and was sent in compliance with
that statute does not remove it from the scope of the FDCPA or preclude the determination that
ClaimAssist was acting in connection with the collection of a debt. As plaintiff points out, the
Letter could constitute “both debt collection and state-lien-related activities – they are not
mutually exclusive.” ECF 26-1 at 25 (emphasis in ECF 26-1).
Again, McCray, 839 F.3d 354, provides guidance. One of the communications at issue in
McCray was a notice of intent to foreclose, which is required by Maryland law before the
initiation of foreclosure proceedings. Id. at 357; see Md. Code (2015 Repl. Vol. 2016 Supp.) §
7-105.1(c) of the Real Property Article (“R.P.”) (“[A]t least 45 days before the filing of an action
to foreclose a mortgage or deed of trust on residential property, the secured party shall send a
written notice of intent to foreclose to the mortgagor or grantor and the record owner.”). The
district judge concluded that the plaintiff failed to allege facts sufficient to show defendants were
debt collectors, and it granted motions to dismiss, inter alia, the FDCPA claims. Id. at 357-58.
Notwithstanding that the law firm was statutorily obligated to send the notice, the Fourth Circuit
determined that, viewing the facts in the light most favorable to plaintiff, the plaintiff adequately
alleged that defendants were debt collectors. Id. at 361. It reasoned that it was “clear from the
complaint . . . that the whole reason that the [law firm] and its members were retained by [the
creditor] was to attempt, through the process of foreclosure, to collect on the $66,500 loan in
default.” Id. at 360.
In view of the foregoing, I am not persuaded by ClaimAssist’s argument that its efforts to
comply with the Maryland Hospital Lien Statute preclude the determination that it is a debt
Defendants have not pointed to any authority suggesting that a debt collector’s
compliance with a state law notice requirement obviates a claim under the FDCPA based on such
conduct. As indicated, the Fourth Circuit in McCray determined that the plaintiff there had
adequately alleged that a notice of intent to foreclose was a debt collection activity within the
FDCPA, despite the fact that State law required dissemination of the notice. McCray, 839 F.3d
354, 357-58; R.P. § 7-105.1(c). The same logic applies here.
Defendants argue that ClaimAssist’s Letter was not within the scope of the FDCPA
because the communication was not “in connection with the collection of any debt.” ECF 21 at
12-15; see 15 U.S.C. § 1692g(a). They claim that the Letter lacks certain features associated
with attempts to collect a debt. Defendants argue, id. at 13-14 (emphasis in original):
Critically, the Letter never solicited payment from Plaintiff. On the face of the
Letter, it is beyond credible dispute, that ClaimAssist was not seeking payment of
a debt obligation owed by Plaintiff to NWH. For example, the Letter does not
contain a "due date" by which a payment must be made. Furthermore, there is no
mention of acceptable methods for making payment (check, money order, credit
card, etc.) or the entity to which the check or money order should be addressed.
Moreover, Plaintiff and ClaimAssist did not have a relationship prior to Plaintiff's
counsel's receipt of the Letter. Therefore, dismissal is warranted for the plain
reason that the Letter giving rise to the claims in the Complaint is not a
communication subject to the FDCPA.
According to defendants, “the information that is actually included in the Letter makes it
very clear that ClaimAssist was doing nothing more than providing Plaintiff's counsel with
statutorily required notice that it had filed a lien.” ECF 21 at 14. And, defendants note that the
Letter cited the Maryland Hospital Lien Statute. Id. at 14-15. Thus, defendants contend that “the
Letter was an attempt to provide notice, as required by ‘Title 16 S16-601’, rather than an attempt
to collect a debt.” Id. at 15. 4
Two provisions of the FDCPA are relevant in considering defendants’ contention.
Section § 1692e of 15 U.S.C., titled “False or misleading representations,” provides: “A debt
collector may not use any false, deceptive, or misleading representation or means in connection
I note that the nature of the review of claims under the FDCPA requires the review of
the same arguments in multiples contexts.
with the collection of any debt.” (Emphasis added). And, 15 U.S.C. § 1692f, titled “Unfair
practices”, provides: “A debt collector may not use unfair or unconscionable means to collect or
attempt to collect any debt.” (Emphasis added). Thus, “to be actionable under these provisions
of the FDCPA, a debt collector needs only to have used a prohibited practice ‘in connection with
the collection of any debt’ or in an ‘attempt to collect any debt’ . . . .” Powell, supra, 782 F.3d at
124; see also Glazer, 704 F.3d at 461 (“[I]f a purpose of an activity taken in relation to a debt is
to ‘obtain payment’ of the debt, the activity is properly considered debt collection.”).
The Fourth Circuit has identified several factors for courts to consider in determining
whether a communication constitutes an attempt to collect a debt. In particular, the Fourth
Circuit has said: “Determining whether a communication constitutes an attempt to collect a debt
is a ‘commonsense inquiry’ that evaluates the ‘nature of the parties’ relationship,’ the [objective]
purpose and context of the communication[ ],’ and whether the communication includes a
demand for payment.” In re Dubois, 834 F.3d 522, 527 (4th Cir. 2016) (quoting Gburek v.
Litton Loan Servicing LP, 614 F.3d 380, 385 (7th Cir. 2010)) (alterations in Dubois).
The Fourth Circuit’s opinion in Powell, supra, 782 F.3d 119, provides guidance. In
Powell, the district court granted summary judgment to the defendants, concluding that the mere
filing of an Assignment of Judgment did not constitute a debt collection activity within the reach
of the FDCPA. Id. at 120. The district court reasoned that “the Assignment of Judgment did not
contain a demand for payment and was not filed to induce payment.” Id. at 123. Although the
district court noted that “the Assignment of Judgment ‘was a step to ultimately collecting the
debt,’ it nonetheless emphasized that ‘the Defendants would [still] have had to take separate
action to collect any money from [plaintiff].’” Id. (first alteration in Powell, second alteration
The Fourth Circuit concluded that the filing of an Assignment of Judgment qualified as a
debt collection activity within the reach of the FDCPA. Id. at 121. Therefore, it vacated and
The Court rejected the argument that, to be within the scope of the FDCPA, a
communication must include a demand for payment or be part of an action designed to induce
debtor to pay. It said, id. at 123: “It is apparent that nothing in this language requires that a debt
collector's misrepresentation be made as part of an express demand for payment or even as part
of an action designed to induce the debtor to pay.” (Emphasis in Powell). It reasoned that the
state court judgment, the writ of garnishment entered by the state court, and the assignment of
the judgment were all “steps taken to collect [plaintiff’s] debt.” Id. at 124. According to the
Fourth Circuit, it could “hardly be disputed that when a person files an assignment of judgment
in a debt collection action so as to be able to execute on the judgment, the person has taken
action in connection with the collection of the judgment debt or as part of an attempt to collect
the judgment debt.” Id. (emphasis in Powell).
Defendants attempt to distinguish Powell on the basis that the Letter does not seek to
obtain payment from Garner, but rather informs her that a lien was placed and that NWH
“‘would be paid out of any recovery funds’ from the tortfeasor, not from Plaintiff.” ECF 27 at
10 (emphasis in ECF 27). And, defendants point out features of debt collection notices that are
not present in the Letter. However, defendants fail to acknowledge the significance of the
features that are present on the face of the Letter. As noted, the Letter lists the name of the
creditor (NWH); the amount due ($801.16); that the cost was incurred more than eleven months
earlier (May 16, 2014); and that ClaimAssist had placed a lien under the Hospital Lien Statute to
recover that debt. These features would seem to indicate that the Letter was sent in connection
with an attempt to collect a debt. Powell, supra, 782 F.3d at 124. And, the Letter can also be
characterized as an activity “in relation to” obtaining payment of a debt. See Glazer, 704 F.3d at
461; see also McCray, 839 F.3d 354 (determining that a law firm’s act of mailing a notice of
intent to foreclose could be a debt collection activity under the FDCPA).
Moreover, defendants argue that the lien is against third-party tortfeasors, rather than
Garner. Plaintiff asserts: “Ms. Garner owed the debt to NWH, which was the debt Defendants
were . . . attempting to collect on behalf of their principal, NWH.” ECF 26-1 at 28 n. 19. In
other words, that ClaimAssist placed a lien on any judgment that would otherwise be paid to
Garner, rather than demanding money directly from Garner, does not place the Letter outside the
scope of the FDCPA. Rather, the Letter informing Garner of the placement of the lien can be
considered to be “in connection with the collection of [a] debt.”
15 U.S.C. § 1692g(a).
Moreover, as indicated, the fact that the Letter was sent for the purpose of complying with the
Maryland Hospital Lien Statute does not remove it from the scope of the FDCPA.
The Fourth Circuit and other courts have not found a distinction between collecting funds
directly and collecting funds through other legal means. For example, in Wilson, 443 F.3d at
376, the Fourth Circuit determined that the FDCPA applied to a law firm retained for the purpose
of foreclosing on real property, finding “no reason to make an exception to the Act when the debt
collector uses foreclosure instead of other methods.” Id.; see also McCray, 839 F.3d at 360
(quoting Wilson); Piper v. Portnoff Law Assocs. Ltd., 396 F.3d 227 (3d Cir. 2005) (concluding
that the fact that a state law “provided a lien to secure the [plaintiffs’] debt does not change its
character as a debt”).
In sum, ClaimAssist sent a Letter to Garner, via her lawyer, which provided that Garner
owed $801.16 to NWH, that she incurred the expense more than eleven months earlier, and that a
lien had been placed against any recovery that she could receive in a tort action arising from the
Collision. See ECF 1-1. Viewing the facts alleged in the Complaint in the light most favorable
to plaintiff, she has adequately alleged that the Letter was sent “in connection with the collection
of any debt’ or in an ‘attempt to collect any debt’ . . . .” Powell, supra, 782 F.3d at 124
(emphasis in Powell). The fact that the Letter never asked plaintiff to make a payment does not
take it outside the scope of the FDCPA.
Finally, defendants contend that Garner cannot state a claim under the FDCPA because
ClaimAssist’s Letter was not a “communication” to collect a “debt” within the meaning of the
FDCPA. ECF 21 at 15-16.
The FDCPA defines “communication” as “the conveying of information regarding a debt
directly or indirectly to any person through any medium.” 15 U.S.C. § 1692a(2). And, the
FDCPA defines “debt” as “any obligation or alleged obligation of a consumer to pay money
arising out of a transaction in which the money, property, insurance, or services which are the
subject of the transaction are primarily for personal, family, or household purposes, whether or
not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). “As long as the
transaction creates an obligation to pay, a debt is created.” Bass v. Stolper, Koritzinsky, Brewster
& Neider, S.C., 111 F.3d 1322, 1325 (7th Cir. 1997).
The Fourth Circuit’s decision in Wilson, 443 F.3d 373, provides insight. As discussed
earlier, the Wilson Court considered whether a law firm that had been retained by a mortgagee to
foreclose on a home could be considered a “debt collector” under the FDCPA. Id. at 375-77.
The defense claimed that it could not be considered a “debt collector” because it was not acting
“in connection with a ‘debt.’” Id. at 376. In particular, defendants argued that “foreclosure by a
trustee under a deed of trust is not the enforcement of an obligation to pay money or a ‘debt,’ but
is a termination of the debtor’s equity of redemption relating to the debtor’s property.” Id.
The Wilson Court rejected defendants’ argument and determined that the “‘debt’
remained a ‘debt’ even after foreclosure proceedings commenced.” Id. (citing Piper, 396 F.3d
at 234). The Court reasoned, id. (emphasis added):
Defendants' argument, if accepted, would create an enormous loophole in
the Act immunizing any debt from coverage if that debt happened to be secured
by a real property interest and foreclosure proceedings were used to collect the
debt. We see no reason to make an exception to the Act when the debt collector
uses foreclosure instead of other methods.
The decision of the Third Circuit in Piper, supra, 396 F.3d 227, is also noteworthy.
There, the court considered whether a law firm’s attempt to collect money from a plaintiff, based
on the plaintiff’s failure to pay water and sewer bills, fell within the scope of the FDCPA. Id. at
233-34. The defendants argued that their activities were not within the scope of the FDCPA
because they were trying to enforce a lien created by state law. Id. at 234. The Piper Court
concluded that the activity was within the scope of the FDCPA because the plaintiffs’
“consumption of water created a personal debt that could be collected in an action in assumpsit.
The fact that the [state law] provided a lien to secure the Pipers' debt does not change its
character as a debt or turn [defendant’s] communications to the Pipers into something other than
an effort to collect that debt.” Id.
Under the language of the FDCPA, plaintiff has adequately alleged that the $801.16 that
ClaimAssist asserted was due to NWH from Garner was a “debt.” That the debt is sought to be
collected by way of a lien, Piper, 396 F.3d 227, or a foreclosure, Wilson, 443 F.3d 373, does not
take the obligation outside of the definition of “debt.”
And, plaintiff has adequately alleged that the Letter was a “communication” as defined
by 15 U.S.C. § 1692a(2). First, the Letter conveyed information. It stated, inter alia, that
ClaimAssist had obtained a hospital lien and that $801.16 was due to NWH.
Furthermore, the information in the Letter pertained to a sum ($801.16) that was due because of
Garner’s treatment at the Hospital on May 16, 2014). 5 And, the Letter was sent “to any person
through any medium.”
In sum, viewing the facts in the Complaint in the light most favorable to plaintiff, Garner
has alleged facts sufficient to state a claim against ClaimAssist under the FDCPA.
Accordingly, I shall DENY the Motion. An Order follows, consistent with this Memorandum
Date: March 22, 2017
Ellen L. Hollander
United States District Judge
Defendants point to the opinion in Jackson-Spells v. Francis, 45 F. Supp. 2d 496 (D.
Md. 1999) (Davis, J.), in support of their position. But, the facts in Jackson-Spells are
distinguishable, and that case was decided well before the Fourth Circuit’s decision in McCray,
839 F.3d 354.
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