Cooper v. Fulton Bank, N.A. et al

Filing 61

MEMORANDUM. Signed by Judge Catherine C. Blake on 11/15/2017. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
James E. Cooper

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v.

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Fulton Bank, N.A., et al.

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Civil Action No. CCB-16-4138

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Memorandum
The plaintiff, James E. Cooper, claims that the defendants, Fulton Bank, N.A. and
Richard & Associates, Inc., (“R&A”), violated the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692e, the Maryland Consumer Debt Collection Act (“MCDCA”), MD.
COM. LAW CODE ANN. § 14-202(9), and committed several other state law violations:
negligence; breach of contract; trespass to land; conversion; trespass to chattel; and violation of §
9-609 of Maryland’s Commercial Code.
Cooper has requested leave to file a first amended complaint and both defendants have
filed motions to dismiss. The court will grant the plaintiff’s request but, because Cooper’s federal
claim is improperly asserted against the defendants and the defendants did not breach the peace,
the complaint will be dismissed.1
Background
In August 2015, Cooper defaulted on an installment contract he entered five years earlier
with Fulton Bank for the purchase of a camper. (Am. Compl. ¶¶ 15, 17-18). Despite being
notified of the late payment by Fulton Bank, Cooper failed to cure his delinquent account. (Id. at
¶ 18). As a result, Fulton Bank hired R&A to repossess the camper. (Id. at ¶ 25). Two R&A
1

After the motions hearing, Cooper requested leave to file a second amended complaint. For the reasons to be
discussed below, that request will be denied as futile.

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representatives attempted to do so on October 26, 2015, without warning Cooper. (Id. at ¶¶ 19,
25). Fearing a home invasion after seeing two men run up to his camper, Cooper retrieved his
gun to detain the men. (Id. at ¶¶ 28-32).2 During the altercation, the R&A men identified
themselves as repossessors from the Pennsylvania Department of Banking, but Cooper suspected
that the men were lying. (Id. at ¶¶ 40-41). The police, who were called by a passerby, did not.
(Id. at ¶ 45). Cooper was arrested and eventually charged with “two counts of first degree
assault; two counts of second degree assault; three counts of reckless endangerment;” and two
handgun offenses. (Id. at ¶ 47). He was tried and acquitted of these crimes. (Id. at ¶ 48).
On December 30, 2016, Cooper filed a complaint in federal court arguing that the
defendants violated the Fair Debt Collection Practices Act, the Maryland Consumer Debt
Collection Act, and committed several other violations under state law. Cooper seeks to recover
the lost wages and attorneys’ fees caused by his arrest and prosecution. Both defendants have
filed motions to dismiss all counts in the complaint arguing, among other things, that the FDCPA
does not apply to them and they never breached the peace. Oral argument was heard on October
30, 2017. The court will grant the defendants’ motions to dismiss.
Standard of Review
To survive a motion to dismiss, the factual allegations of a complaint “must be enough to
raise a right to relief above the speculative level on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal citations omitted). “To satisfy this standard, a plaintiff need not ‘forecast’
evidence sufficient to prove the elements of the claim. However, the complaint must allege
sufficient facts to establish those elements.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.

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The complaint does not allege that the men broke through a locked gate or other barrier during the attempted
repossession.

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2012) (citation omitted). “Thus, while a plaintiff does not need to demonstrate in a complaint
that the right to relief is ‘probable,’ the complaint must advance the plaintiff’s claim ‘across the
line from conceivable to plausible.’” Id. (quoting Twombly, 550 U.S. at 570). And the plaintiff
typically must do so by relying solely on facts asserted within the four corners of his complaint.
Zak v. Chelsea Therapeutics Intern., Ltd., 780 F.3d 597, 606-07 (4th Cir. 2015).
Analysis
Cooper’s federal claim fails because Fulton Bank is not a debt collector and R&A’s
repossession activity is not covered by § 1692e. Cooper’s state law claims fail because the
defendants did not breach the peace.
I.

Fair Debt Collection Practices Act Claim
The defendants argue that Cooper’s FDCPA claim should be dismissed for four reasons:

(1) the defendants did not use “false, deceptive, or misleading” practices when attempting to
repossess Cooper’s camper; (2) Fulton Bank is not a “debt collector” within the meaning of the
FDCPA; (3) repossession is not covered by § 1692e; and (4) Cooper’s claim is time-barred under
§ 1692k(d) of the FDCPA which requires claims to be brought within a year of an alleged
violation.
A. Fulton Bank is not a “debt collector” within the meaning of the FDCPA
Fulton Bank argues that it is not a debt collector within the meaning of § 1692e. Section
1692e of the FDCPA states in relevant part that “[a] debt collector may not use any false,
deceptive, or misleading representation or means in connection with the collection of any debt.”
15 U.S.C. § 1692e. To determine whether an entity is a debt collector the court “must first
determine whether the [entity] satisfies one of the statutory definitions given in the main text of §
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1692a(6) before considering whether that person falls into one of the exclusions contained in
subsections § 1692a(6)(A)-(F).” Henson v. Santander Consumer USA, Inc., 817 F.3d 131, 136
(4th Cir. 2016), aff’d, 137 S. Ct. 1718 (2017). Because Fulton Bank does not satisfy any of the
definitions in § 1692a there is no need for the court to consider the statute’s exclusions.
The FDCPA defines a debt collector as:
“[A]ny 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. Notwithstanding the exclusion
provided by clause (F) of the last sentence of this paragraph, the
term includes any creditor who, in the process of collecting his
own debts, uses any name other than his own which would indicate
that a third person is collecting or attempting to collect such debts.
For the purpose of section 1692f(6) of this title, such term also
includes any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of
which is the enforcement of security interests.”
15 U.S.C. § 1692a(6). Under this definition, courts have held that “creditors are not liable
under the FDCPA.” Sterling v. Ourisman Chevrolet of Bowie Inc., 943 F. Supp. 2d 577, 586 (D.
Md. 2013) (quoting Eley v. Evans, 476 F. Supp. 2d 531, 534 (E.D. Va. 2007)). Cooper asserts
that Fulton Bank is a debt collector because it attempted to repossess his camper. Not only is
such conduct not debt collection under § 1692e, it also does not show that Fulton Bank’s
principal purpose is the collection of debts. Cooper does not respond to this argument in his
opposition to Fulton Bank’s motion to dismiss, nor are there any allegations in his complaint,
besides unsupported legal conclusions, to undermine it. Iqbal, 556 U.S. at 678 (internal
quotations omitted). (A complaint does not “suffice if it tenders naked assertions devoid of
further factual enhancement.”). Accordingly, the court will dismiss Cooper’s FDCPA claim
against Fulton Bank because it is not a debt collector within the meaning of § 1692a.

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B. Repossession is not covered by § 1692e
Both defendants argue that even if they are debt collectors, enforcement of a security
interest, like repossession, is not covered by § 1692e but rather § 1692f(6), which makes it
unlawful to “[t]ak[e] or threaten[] to take any nonjudicial action to effect dispossession or
disablement of property” if certain conditions are met. 15 U.S.C. § 1692f(6). Cooper embraces
this argument, but claims that the defendants could be liable under § 1692f(6) even though he
sued them under § 1692e.
The defendants’ conclusion is correct, but for different reasons. Section 1692f(6) “is not
an exception to the definition of debt collector, it is an inclusion to the term . . . . It serves to
include as debt collectors, for the purpose of § 1692f(6), those who only enforce security
interests.” Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373, 378 (4th Cir. 2006). Put
differently, the defendants may be liable under § 1692e if they are covered by the general
definition of debt collector in § 1692a(6). But if the defendants’ “only role in the debt collection
process is the enforcement of a security interest,” then they can only be liable under § 1692f(6).
Id.
R&A’s role in the debt collection process, at least in this case, is limited to the
enforcement of security interests: it acted as repossessor of a security interest in this case in the
camper and Cooper never alleges that R&A is anything other than a repossession agent. 3
Therefore, Cooper’s FDCPA claim against R&A is subject to dismissal because it was not
brought under § 1692f(6).4

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To the extent Fulton Bank engaged in repossession, the same reasoning applies.
Further, the court need not consider the defendants’ time-bar argument or R&A’s claim that the badges used during
the repossession were real because Cooper’s federal claim will be dismissed on other grounds.
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Even if Cooper did assert a claim under § 1692f(6), he would still fail. Under that subsection,
liability only attaches if the defendants did not have a current right to possess the camper at the time of
repossession. 15 U.S.C. § 1692f(6)(A). The plaintiff concedes that the defendants did have a right to
repossess the camper but asserts that they lost that right after they breached the peace. Assuming without
deciding that Cooper’s argument is cognizable under the statute, the defendants did not breach the peace,
as will be explained below in section III, and, therefore, did not lose their present right to possession of
the camper.

II.

Maryland Consumer Debt Collection Act5
Cooper next argues that the defendants are liable under the Maryland Consumer Debt

Collection Act because R&A’s alleged use of sham badges during its repossession effort
constitutes an improper “communication” under the Act. By its terms, the MCDCA only applies
to efforts to collect on consumer transaction debt: “transactions involving a person seeking or
acquiring real or personal property, services, money, or credit for personal, family, or household
purposes.” MD. CODE COM. LAW § 14-201. Enforcing security interests does not qualify as debt
collection under the Act. Davis v. Toyota Motor Credit Corp., 251 F. Supp. 3d 925, 932-33 (D.
Md. 2017). Nor does the Act, unlike its federal counterpart the FDCPA, have a specific provision
to govern the enforcement of security interests. See generally, MD. CODE COM. LAW § 14-201, et
seq.
Cooper’s complaint does not allege that the defendants attempted to collect on the debt he
owed through means other than repossession. Because “mere repossession” is not “regulated by
Maryland’s laws governing [debt] collectors” the court will grants the defendants’ motions to
dismiss Cooper’s MCDCA claim. Davis, 251 F. Supp. 3d at 933.
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The case arises under the court’s federal question jurisdiction. Despite dismissing Cooper’s only federal claim the
court will consider his remaining state law claims because the parties agreed during the hearing on the motions that
the claim also arises under the court’s diversity jurisdiction.

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III.

Negligence
Cooper next asserts that the defendants had a tort duty not to breach the peace during

their repossession effort. Assuming without deciding that such a duty exists, Cooper’s claim still
fails because the defendants did not breach the peace.
Maryland courts have not had opportunity to illuminate the meaning of “breach of the
peace,” and therefore the court must look to decisions from sister states for guidance. State
courts across the country agree that repossession may breach the peace if it involves: “law
enforcement; violence or threats of violence; trespass; verbal confrontation; [or] disturbance to
third parties.” Rivera v. Dealer Funding, LLC, 178 F. Supp. 3d 272, 279 (E.D. Pa. 2016)
(collecting cases). States that have not developed an analytical framework for breach of the
peace claims “focus almost entirely [on] the interactions [between] the debtor and creditor at the
time of repossession, such as force or threats of force, trespass, or verbal objections.” Id.
(collecting cases). Courts also have sometimes held that fraud or deceit can breach the peace. See
Quest v. Barnett Bank of Pensacola, 397 So. 2d 1020, 1024 (Fla. Dist. Ct. App. 1981). Cooper’s
view of the law is no different. In support of his argument that the defendants breached the peace
he offers a string of cases that all but one support the proposition that a defendant may breach the
peace if he fails to leave after a debtor protests the repossession. (Pl.’s Opps. ECF Nos. 26 and
27).
Cooper does not dispute that the defendants had a right to enter his land to repossess his
camper. He claims instead that the defendants breached the peace during the repossession by
rapidly approaching his home; making eye contact with him; running towards his home; failing
to provide notice of the repossession; and failing to retreat after Cooper objected to the

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repossession. These allegations are either true of the typical repossession or unsupported by the
factual allegations in the complaint.
Repossession moves quickly not because it is insensitive to the risk of confrontation or
violence but rather to avoid confrontation or violence. The R&A men in this case did nothing
more than that. They ran up to Cooper’s camper using neither violence, nor force, nor fraud.
There is nothing in the complaint to suggest that the men confronted Cooper, let alone threatened
him. Cooper merely asserts that the men made eye contact with him, failed to provide notice, and
ran towards his home. But these facts cannot constitute breach of the peace. The typical
repossession of a car likely will include some interaction with the debtor’s home simply because
cars are usually kept at the home. And Cooper does not cite any case law in his papers to support
his assertion that mere eye contact, or a failure to notify the debtor of a repossession effort, can
constitute breach of the peace, nor can the court find any.
Further, there is no indication that Cooper ever asked the men to leave. In fact, the
opposite is supported by the factual allegations in the complaint; Cooper detained the men at gun
point until the police arrived.6 It was at this moment, as the altercation reached its crest, that the
men first flashed their badges, indicating that, fake or not, the badges were not used to convince
Cooper to let them take his camper but to deescalate the situation. The defendants in this case
were no more likely to cause confrontation or violence than the typical repossession effort.
Accordingly, the defendants’ motions to dismiss will be granted.
IV.

Breach of Contract
Cooper argues that Fulton Bank breached the installment contract when it allegedly

breached the peace during its attempted repossession of his camper for the reasons described in
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The men from R&A did not call the police to assist them in the repossession.

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part III. The installment contract allows Fulton Bank to “peaceably repossess the camper,” and
chooses Pennsylvania law to govern the parties’ obligations.7
Pennsylvania courts, like Maryland courts, have not catalogued conduct constituting
breach of the peace, or developed factors for identifying such conduct. Rivera, 178 F. Supp. 3d at
278-79. Yet, the courts are especially attentive to the use of force during repossession. Breach of
the peace may occur if the repossession involved: “law enforcement; violence or threats of
violence; trespass; verbal confrontation; [or] disturbance to third parties,” id. at 279, or if the
debtor’s property is damaged during the repossession or the creditor uses force to enter the
debtor’s land. Laurel Coal Co. v. Walter E. Heller & Co., Inc., 539 F. Supp. 1006, 1007, 1008
(W.D. Pa. 1982).
For the reasons already stated in section III, Fulton Bank did not breach the peace and
therefore did not breach its contractual obligations to Cooper.
V.

Trespass to Land, Conversion, and Trespass to Chattel

Cooper claims that the defendants committed three common law torts: trespass to land,
conversion, and trespass to chattel. These claims all include the interference, without permission,
of another’s enjoyment of her property. Davis, 251 F. Supp. 3d at 929, 933. Cooper argues that
the defendants did not possess a legal right to enter his land or to take his camper and that they
remained on his property after he objected to their presence. The defendants argue that they were
authorized to be on Cooper’s property and repossess his camper by a Pennsylvania statute, 13
PA. CONS. STAT. § 9-609(b)(2), and by the terms of the parties’ underlying contract, which the
parties both agree provides for repossession in the event of default.

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On a motion to dismiss the court may consider documents that are integral to the complaint. Goines v. Valley Cmty
Servs Bd., 822 F.3d 159, 164 (4th Cir. 2016).

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A defendant does not destroy its right of entry onto another’s property to enforce a
security interest by “breach[ing] . . . the peace” or “us[ing] . . . force after the entry.” Davis, 251
F.Supp.3d at 933-34 (emphasis in original). Although implicit, Cooper agrees that the defendants
had a right under the installment contract to enter his land. Cooper does not dispute that the
contract with Fulton Bank (1) gave Fulton Bank the right to repossess his camper if he defaulted
on his loan and (2) that he did default. The real thrust of his argument is instead that the
defendants lost that right when they allegedly breached the peace during their repossession
effort.
Because the defendants’ actions as alleged in the complaint did not breach the peace,
Cooper’s tort claims will be dismissed.
VI.

Uniform Commercial Code § 9-609
Cooper asserts that the defendants violated § 9-609 of Maryland’s Commercial Law

Code, which allows a secured party to repossess collateral “[w]ithout judicial process, if it
proceeds without breach of the peace.” MD. CODE COM. LAW § 9-609(b)(2).
For the reasons already stated, the defendants did not breach the peace when they
attempted to repossess Cooper’s camper. This count, too, will be dismissed.
VII.

Maryland Consumer Protection Act
Last, Cooper claims, in his proposed second amended complaint, that the defendants

violated the Maryland Consumer Protection Act, (“MCPA”), which makes it unlawful to use
“[u]nfair or deceptive trade practices,” MD. CODE COM. LAW § 13-301, by making false
statements and using phony badges.

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To bring a successful claim under the MCPA a plaintiff must allege: “(1) an unfair or
deceptive practice or misrepresentation that is (2) relied upon, and (3) causes [him] actual
injury.” Stewart v. Bierman, 859 F. Supp. 2d 754, 768-69 (D. Md. 2012).
Cooper never relied on the defendants’ alleged unfair and deceptive practices. In his own
words, the defendants’ use of their badges “gave Mr. Cooper the impression that the men were
trying to pass themselves off as police officers,” (Sec. Am. Compl. ¶ 40), and eventually
“increased Mr. Cooper’s suspicions and doubt as to their veracity,” (id. at ¶ 42). The badges also
did not stop Cooper from accepting a passerby’s offer to call the police, (id. at ¶ 35), nor did
they, as Cooper’s keeping the R&A men at gunpoint until the police arrived indicates, disabuse
Cooper of his first impression that the men were there to invade his home or steal his camper,
(id. at ¶¶ 30, 32).
Accordingly, Cooper fails to make out a claim under the Maryland Consumer Protection
Act and his request for leave to file a second amended complaint will be denied as futile.
Conclusion
For the reasons stated above, the defendants’ motions to dismiss will be granted. A
separate order follows.

____Nov. 15, 2017_____
Date

____ /s/____________
Catherine C. Blake
United States District Judge

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