Alston v. United Collection Bureau, Inc.

Filing 26

MEMORANDUM OPINION (c/m to Plaintiff 3/4/14 sat). Signed by Chief Judge Deborah K. Chasanow on 3/4/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JONATHAN ALSTON
:
v.

:

Civil Action No. DKC 13-0913

:
UNITED COLLECTIONS BUREAU, INC.
:
MEMORANDUM OPINION
Presently

pending

and

ready

for

review

in

this

action

alleging common law tort of defamation and violations of the
Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692
et seq., Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681
et

seq.,

(“MCDCA”),

and

the

Md.

Code

Maryland
Ann.,

Consumer

Com.

Law

§§

Debt

Collection

14-201,

et

Act

seq.,

are

several motions: (1) the motion of Defendant United Collections
Bureau,

Inc.

(“Defendant”

or

“UCB”)

to

dismiss,

or

in

the

alternative, for summary judgment (ECF No. 16); (2) Plaintiff
Jonathan Alston’s (“Plaintiff”) motion to strike (ECF No. 20);
and (3) Plaintiff’s motion for leave to file a second amended
complaint (ECF No. 23).

The issues have been fully briefed, and

the court now rules, no hearing being deemed necessary.
Rule 105.6.

Local

For the following reasons, Defendant’s motion to

dismiss, or in the alternative, for summary judgment will be

granted.

Plaintiff’s motions to strike and for leave to file a

second amended complaint will be denied.
I.

Background
Factual Background1

A.

Plaintiff,
resulting
three

proceeding

from

credit

TransUnion.
collection

UCB

allegedly

reporting
According

item

pro

arose

se,

has

reporting

agencies
to

the

from

a

-

a

UCB

for

collection

damages
item

to

Equifax,

Experian,

and

amended

complaint,

the

first
debt

sued

Plaintiff

George’s Hospital for personal services.

owed

to

Prince

Plaintiff alleges that

the debt was paid in full on June 18, 2007 after his case
settled with an insurance company.
contends

that

“UCB

reported

this

(ECF No. 14 ¶ 8).
account

not

Plaintiff

only

despite

knowing the account was paid but also knowing the account was
false in the sense that it was uncollectible and unenforceable
for it was outside the statute of limitations.”

(Id. ¶ 10).

Plaintiff asserts that he disputed the debt “with the credit
bureaus on numerous occasions within the past two years but UCB
continued to maliciously instruct the credit bureaus to report
this false account.”
According
disputed

the

to
debt

(Id. ¶ 11).
the
with

first

amended

Equifax

1

in

complaint,
May

2012

and

Plaintiff
Equifax

The facts are drawn from the first amended complaint, the
operative complaint here.
2

subsequently forwarded the dispute to UCB for investigation on
May 24, 2012.

Plaintiff received the investigation results from

Equifax on May 24, 2012, which confirmed that the account was
correct.

(Id. ¶ 12).

Plaintiff also disputed the account with

TransUnion in June 2012, TransUnion referred the dispute to UCB
for investigation, and according to Plaintiff, on June 19, 2012,
the

investigation

deleted.

results

(Id. ¶ 13).

stated

that

the

UCB

account

was

Finally, Plaintiff disputed the account

with Experian in June 2012, Experian forwarded the dispute to
UCB

for

investigation,

confirmed the account.

and

like

(Id. ¶ 14).

the

Equifax

dispute,

UCB

Plaintiff asserts that the

disputes he filed with TransUnion, Equifax, and Experian all
concerned the same debt to Prince George’s Hospital, yet UCB’s
investigation yielded different results to TransUnion (resulting
in his account being deleted) from Equifax and Experian.
On July 8, 2012, Plaintiff sent UCB a letter “explaining
that

he

does

not

George’s Hospital.”

have

an

outstanding

(Id. ¶ 15).

balance

with

Prince

Plaintiff asserts that he

requested that UCB provide proof of the debt, and if UCB had
done so, he would have paid the outstanding balance.

(Id.).

In

response, Plaintiff received a letter from UCB dated July 17,
2012,

in

which

UCB

advised

him

that

“the

credit

reporting

initiated by United Collection Bureau, Inc., with regard to the
above referenced account was requested to be removed from your
3

credit file.

Please accept our apology for any inconvenience

this error may have caused.”

(Id. ¶ 16; see also ECF No. 18-2).

Plaintiff also asserts that:
[i]n correspondence dated December 21, 2012
UCB admitted that it did not perform a
reasonable investigation after receiving Mr.
Alston’s May and June 2012 credit bureau
disputes.
UCB admitted that it only
confirmed that the name, address and social
security number matched its files.
UCB
further
admitted
it
only
conducted
a
reasonable response after receiving Mr.
Alston’s July 8, 2012 correspondence and
found that the account should not have been
reported to the credit reporting agencies.
(ECF No. 14 ¶ 17).
reported

debt

to

Plaintiff believes that as a result of the
Prince

George’s

Hospital,

inaccurate

credit

reports were published to A&H Motors, AT&T Services, Capital
One,

Flagship

Credit

Acceptance,

Regional

Fargo Capital One, and Verizon Communications.
B.

Acceptance,

Wells

(Id. ¶ 18).

Procedural Background

On February 5, 2013, Plaintiff commenced this action in the
Circuit Court for Prince George’s County in Maryland.
1-1).

In

the

complaint,

Plaintiff

alleged

that

(ECF No.
Defendant

violated the FDCPA by reporting false information to TransUnion,
Equifax, and Experian.

Plaintiff further asserted violations of

the FCRA premised on Defendant’s alleged failure to investigate
the disputed account.
law

tort

of

Finally, Plaintiff asserted the common

defamation

on

the

4

basis

of

UCB’s

allegedly

intentional

and

malicious

instruction

to

credit

bureaus

to

report a collection item for a debt that Plaintiff maintains had
been satisfied.

(Id. at 4-6).

Defendant removed the action to this court on March 27,
2013, citing federal question jurisdiction as the jurisdictional
basis.

(ECF No. 1).

Defendant subsequently moved to dismiss on

April 1, 2013 (ECF No. 10).

Before he opposed the motion,

Plaintiff filed a first amended complaint on April 17, 2013,
adding a fourth claim for violations of the MCDCA.
2).

On

May

1,

2013,

Defendant

filed

a

(ECF No. 14-

motion

to

dismiss

Plaintiff’s first amended complaint, or in the alternative, for
summary judgment.

(ECF No. 16).

Plaintiff opposed the motion

on May 16, 2013 (ECF No. 18), and Defendant replied on June 3,
2013 (ECF No. 19).

On June 18, 2013, Plaintiff moved to strike

a supplemental affidavit that Defendant submitted with the reply
brief and a portion of Defendant’s reply brief.

(ECF No. 20).

Defendant opposed this motion on July 5, 2013 (ECF No. 21), and
Plaintiff replied on July 17, 2013 (ECF No. 22).

Plaintiff

subsequently moved for leave to file a second amended complaint
on August 21, 2013, after Defendant refused to consent to the
amendment.

(ECF No. 23).

In the second amended complaint,

Plaintiff seeks to add Prince George’s Hospital as a second
defendant, and to include two additional counts for respondeat
superior

liability

and

alleged
5

violations

of

the

Maryland

Consumer Protection Act (“MCPA”), Md. Code Ann., Com. Law §§ 13101 et seq.2

Defendant opposed this motion on September 4, 2013

(ECF No. 24) and Plaintiff replied on September 23, 2013 (ECF
No. 25).
II.

Standards of Review
A.

Motion to Dismiss for Failure to State a Claim

The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Charlottesville,

464

F.3d

480,

483

(4th

Presley v. City of
Cir.

2006).

A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing
8(a)(2).

that

pleader

is

entitled

to

relief.”

Fed.R.Civ.P.

“Rule 8(a)(2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 556 n.3 (2007).

Bell Atl. Corp.

That showing must

consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the

2

It appears that Plaintiff seeks to assert these two counts
only against Prince George’s Hospital.
6

light

most

favorable

to

the

plaintiff,

see

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604

F.2d

844,

847

(4th

Cir.

1979);

see

also

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

Francis

v.

“[W]here the

well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged,
but it has not ‘show[n] . . . that the pleader is entitled to
relief.’”
8(a)(2)).

Iqbal,

556

U.S.

at

679

(quoting

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task
that

requires

the

reviewing

experience and common sense.”
B.

court

to

draw

on

its

judicial

Id.

Summary Judgment Standard

Summary judgment may be entered only if there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law.

Fed.R.Civ.P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson,
7

532

F.3d

291,

(4th

297

Cir.

2008).

Summary

judgment

is

inappropriate if any material factual issue “may reasonably be
resolved in favor of either party.”

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash.
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]

pleadings,’

but

rather

must

‘set

forth

specific

showing that there is a genuine issue for trial.’”

facts

Bouchat v.

Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof

.

.

.

will

not

suffice

to

prevent

“A mere scintilla of
summary

Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).

judgment.”
“If the

evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
(citations

omitted).

At

the

Anderson, 477 U.S. at 249-50

same

time,

the

facts

that

are

presented must be construed in the light most favorable to the
party opposing the motion.

Scott v. Harris, 550 U.S. 372, 378

(2007); Emmett, 532 F.3d at 297.
III. Analysis
A.

Defendant’s Motion to Dismiss or for Summary Judgment

1.

FDCPA Claim (Count I)

Plaintiff alleges that UCB violated various provisions of
the FDCPA, which protects consumers from “abusive and deceptive
8

debt collection practices by debt collectors.”

Akalwadi v. Risk

Mgmt. Alts., Inc., 336 F.Supp.2d 492, 500 (D.Md. 2004).

UCB

moves to dismiss this claim.
The FDCPA “forbids the use of any false, deceptive, or
misleading

representation

or

means

in

debt

collection

provides a non-exhaustive list of prohibited conduct.”

and

United

States v. Nat’l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir.
1996).

It is well established that the “threshold requirement

for application of the FDCPA is that the prohibited practices
are used in an attempt to collect a debt.”

Mabe v. G.C. Servs.

Ltd. P’ship, 32 F.3d 86, 88 (4th Cir. 1994).

The FDCPA is a

strict liability statute and a consumer only has to prove one
violation

to

trigger

liability.

Spencer

v.

Henderson-Webb,

Inc., 81 F.Supp.2d 582, 590-91 (D.Md. 1999).
a.

15 U.S.C. § 1692e(8)

Plaintiff asserts that UCB violated 15 U.S.C. § 1692e(8),
which prohibits “[c]ommunicating or threatening to communicate
to any person credit information which is known or which should
be known to be false, including the failure to communicate that
a

disputed

debt

is

disputed.”

Plaintiff

alleges

that

UCB

deceptively reported false information (e.g., that Plaintiff had
an

outstanding

debt

with

Prince

TransUnion,

Equifax,

and

paying

for

“fraudulent

UCB

the

Experian

9

to

George’s
pressure

account.”

Hospital)
Plaintiff

UCB

argues

to
into
that

Plaintiff fails to state a claim for relief because he fails to
show

that

UCB

engaged

in

any

collection

activity

and

“Plaintiff’s [c]omplaint fails to allege any facts to support
the

contention

that

UCB

knew

or

should

have

known

that

the

information allegedly reported to the credit bureaus was false.”
(ECF

No.

16-1,

at

9).

UCB

also

maintains

that

Plaintiff’s

Section 1692e(8) claim is deficient insofar as it fails to show
that UCB knew that Plaintiff’s debt was allegedly satisfied.
Even if reporting a debt to
constitutes

collection

activity,

credit reporting agencies
the

first

amended

fails to state a claim under Section 1692e(8).

complaint

Plaintiff does

not provide any factual support for his blanket assertion that
“UCB reported this account not only despite knowing the account
was paid but also knowing the account was false in the sense
that it was uncollectible and unenforceable for it was outside
the statute of limitations.”

(ECF No. 14 ¶ 10).

Plaintiff’s

allegation fails to demonstrate that at the time UCB reported
the account to Equifax, Experian, and TransUnion, it knew or
should have known that the information was false.
Collecto,

Inc.,

No.Civ.A.2004-4059,

2005

WL

See Shah v.

2216242,

at

*10

(D.Md. Sept. 12, 2005) (“[Section 1692e(8)] expressly requires
knowledge, and Plaintiff provides no evidence that CCA knew or
should have known that the debt was invalid when it initially
reported the information to the [credit reporting agencies].”).
10

Furthermore, there is no indication from Plaintiff’s first
amended complaint that UCB failed to communicate to the credit
reporting agencies that Plaintiff disputed the debt.

Indeed,

Plaintiff asserts that he “disputed the debt with the credit
bureaus [and not with UCB] on numerous occasions within the past
two years.”

(ECF No. 16 ¶ 11) (emphasis added).

Plaintiff has

pled no facts indicating that UCB failed to inform TransUnion,
Equifax, or Experian that Plaintiff disputed the debt.

In fact,

according to Plaintiff, after he submitted a dispute directly to
UCB for the first time on July 8, 2012 “explaining that he does
not have an outstanding balance with Prince George’s Hospital,”
(Id. ¶ 15), UCB responded to him on July 17, 2012 indicating
that the debt was cancelled.

(Id. ¶ 16).

Notably, Plaintiff

does not contend that UCB continued to report the debt after
receiving Plaintiff’s July 8, 2012 dispute.

In the opposition,

Plaintiff asserts that “[i]t can certainly be inferred that the
deletion of the UCB account from the Transunion credit report
indicates that UCB knew the debt was false and should not have
subsequently been reported to Equifax and Experian.”
18, at 4).

(ECF No.

In order to state a claim, however, the plausibility

standard requires “[f]actual allegations must be enough to raise
a right to relief above the speculative level.”
v. Twombly, 550 U.S. 544, 545 (2007).
that

UCB

knew

or

should

have
11

known

Bell Atl. Corp.

Plaintiff’s contention
that

it

reported

false

information to the credit reporting agencies is speculative at
best.

Accordingly, Plaintiff fails sufficiently to allege that

UCB violated 15 U.S.C. § 1692e(8).
b.

15 U.S.C. § 1692(e)(10)

Plaintiff
1692e(10).

also

that

UCB

violated

15

U.S.C.

§

Section 1692e(10) prohibits “[t]he use of any false

representation
collect

asserts

any

consumer.”

or
debt

deceptive
or

to

means

to

obtain

collect

information

or

attempt

concerning

to
a

Plaintiff must provide factual support bearing on

Defendant’s

purported

misconduct

Plaintiff fails to do here.

under

the

FDCPA,

which

Plaintiff does not assert that he

received any correspondence from UCB attempting to collect the
allegedly satisfied debt to Prince George’s Hospital.

In fact,

as Plaintiff alleges in the first amended complaint, the July
17,

2012

correspondence

he

received

from

UCB

indicated

Plaintiff’s account was removed from his credit file.

that

Moreover,

Plaintiff fails to identify how UCB used false representation or
deceptive means in an attempt to collect a debt.

See, e.g,

Mavilla v. Absolute Collection Service, Inc., No. 13-1170, 2013
WL 4799313, at *4 (4th Cir. Sept. 10, 2013) (“Appellants have
failed to identify the exact conduct that violated [15 U.S.C. §
1692e(10)] and similarly have failed to present any evidence in
support

of

the

claims.”).

Plaintiff’s

naked

assertion

that

Defendant knew that the debt was false all along considering
12

UCB’s July 17, 2012 correspondence to Plaintiff indicating that
his account was removed from the credit file (see ECF No. 18-2)
does not give rise to actionable conduct under the FDCPA.

See

Baptise v. Capital One Bank (USA), N.A., No. JKB-11-3535, 2012
WL 1657207, at *2 (D.Md. May 10, 2012) (holding that plaintiff’s
allegations

fell

short

of

stating

a

plausible

claim

under

Section 1692e(10), where she alleged that a law firm “sent her
something in writing demanding payment on a debt, which she
refers

to

as

‘non-existent’.

allows

an

inference

that

.

[the

.

None

law

of

firm]

these
used

allegations
‘any

false,

deceptive, or misleading representations or means in connection
with the collection of any debt.’”).
Finally,

Plaintiff’s

argument

that

UCB

violated

Section

1692e(10) by attempting to collect on a time-barred debt is also
misplaced.

Collection of a time-barred debt is permissible;

Section 1692(e)(10) is implicated only when the debt collector
goes further ad threatens litigation.
Legal

Group,

(“Although

it

P.C.,
is

533

F.Supp.2d

permissible

See, e.g., Larsen v. JBC
290,

[under

the

303

(E.D.N.Y.

FDCPA]

for

2008)
a

debt

collector to seek to collect on a time-barred debt voluntarily,
it is prohibited from threatening litigation with respect to
such a debt.”); Goins v. JBC & Assoc., P.C., 352 F.Supp.2d 262,
272 (D.Conn. 2005) (“As the statute of limitations would be a
complete defense to any suit . . . the threat to bring suit
13

under

such

circumstances

can

at

best

be

described

as

a

‘misleading’ representation, in violation of § 1692e [of the
FDCPA].”).
with

There is no indication that UCB threatened Plaintiff

litigation

regarding

the

allegedly

time-barred

debt.

Accordingly, Plaintiff fails to state a claim for relief under
this provision of the FDCPA as well.
2.

FCRA Claim (Count II)

a.

Reasonableness of UCB’s Investigation

Plaintiff alleges that UCB violated the FCRA by failing to
conduct a reasonable investigation after the credit reporting
agencies forwarded his dispute to UCB.

Defendant seeks summary

judgment on this count.
“Congress enacted [the] FCRA in 1970 to ensure fair and
accurate
system,

credit
and

reporting,

protect

promote

consumer

efficiency

privacy.”

in

the

Saunders

v.

banking
Branch

Banking & Trust Co. of Va., 526 F.3d 142, 147 (4th Cir. 2008)
(quoting

Safeco

(2007)).

Ins.

Co.

of

Am.

v.

Burr,

551

U.S.

47,

52

The FCRA creates a private right of action allowing

injured consumers to recover actual damages caused by negligent
violations

and

noncompliance.

both

actual

and

punitive

damages

for

willful

See Robinson v. Equifax Info Servs., LLC, 560

F.3d 235, 239 (4th Cir. 2009); see also 15 U.S.C. §§ 1681n,
1681o.

14

Plaintiff asserts that UCB violated 15 U.S.C. §§ 1681s2(b)(1)(D) & (E).

Section 1681s-2(b) outlines the duties a

furnisher of information has when given notice of a dispute
concerning inaccurately reported information.

See 15 U.S.C. §

1681s-2(b)(1).

Furnishers of information typically are “‘credit

card

auto

issuers,

lenders,

dealers,

utilities,

department

insurers,

government agencies.’”

and

grocery

collection

stores,

agencies,

and

Chiang v. Verizon New England Inc., 595

F.3d 26, 35 n.7 (1st Cir. 2010).

As a debt collector, UCB is a

furnisher of information under the FCRA.

Under Section 1681s-

2(b), a furnisher is only required to investigate information it
has provided if a consumer reporting agency notifies it that a
consumer has contacted the agency and disputed the furnished
information.

15 U.S.C. § 1681s-2(b)(1); Mavilla, No. 13-1170,

2013 WL 4799313, at *5; Stafford v. Cross Country Bank, 262
F.Supp.2d 776, 784 (W.D.Ky. 2003) (“This means that a furnisher
of credit information . . . has no responsibility to investigate
a credit dispute until after it receives notice from a consumer
reporting agency.”) (emphasis in original).
Here, UCB received notification that Plaintiff disputed the
debt

in

May

2012

(from

TransUnion and Experian).
investigate.

Equifax)

and

in

June

2012

(from

The notices triggered UCB’s duty to

Specifically,

after

receiving

disputes,

the

furnisher must (1) “conduct an investigation with respect to the
15

disputed

information,”

provided

by

the

(2)

consumer

“review
reporting

all

relevant

agency,”

(3)

information
“report

the

results of the investigation to the consumer reporting agency,”
and (4) “if the investigation finds that the information is
incomplete

or

inaccurate,

report

those

results

to

all

other

consumer reporting agencies to which the person furnished the
information and that compile and maintain files on consumers on
a nationwide basis.”
The
determine

15 U.S.C. § 1681s-2(b)(1)(A-D).

furnisher’s
whether

the

investigation
disputed

must

be

information

can

reasonable
be

“to

verified.”

Johnson v. MBNA America Bank, NA, 357 F.3d 426, 431 (4th Cir.
2004).

Plaintiff bears the burden of showing the investigation

was unreasonable.

See id., 357 F.3d at 429-31.

Whether a

defendant’s investigation is reasonable is a factual question
normally reserved for trial, but summary judgment is proper if
the

reasonableness

of

the

defendant’s

procedures

is

beyond

question and if the plaintiff has failed to adduce evidence that
would tend to prove that the investigation was unreasonable.
See, e.g., Jainqing Wu v. Trans Union, No. AW-03-1290, 2006 WL
4729755, at *8 (D.Md. May 2, 2006); Westra v. Credit Control of
Pinellas, 409 F.3d 825, 826 (7th Cir. 2005).
Court

of

Appeals

for

the

Fourth

Circuit

The United States

has

opined

that

to

determine reasonableness, “the cost of verifying the accuracy of
the information” should be weighed against “the possible harm of
16

reporting inaccurate information.”

See Johnson, 357 F.3d at

432.
Plaintiff asserts that UCB failed to fulfill its duties
under

the

FCRA

reasonable

because

investigation,

if

Defendant

it

would

in

have

fact

performed

discovered

that

a
his

account could not be verified, especially because UCB removed
the account from his credit file after Plaintiff disputed the
debt directly to UCB.3

Plaintiff also premises the FCRA claim on

the allegation that UCB “reported the same account differently
to

the

three

materially
agency.”

credit

identical

reporting
disputes

agencies

from

each

after

receiving

credit

reporting

(ECF No. 14 ¶ 26).

Plaintiff fails to raise a genuine dispute of material fact
as to whether UCB conducted a reasonable investigation in light
of the specific disputes UCB received from the credit reporting
agencies.

See Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147,

1157 (9th Cir. 2009) (“The pertinent question is thus whether the
furnisher’s

procedures

were

reasonable

3

in

light

of

what

it

The FCRA allows consumers to notify furnishers of disputes
directly.
See 15 U.S.C. § 1681s-2(a)(8).
But there is no
private cause of action for failure properly to investigate such
a dispute.
Id. § 1681s-2(c)(1).
A notice of disputed
information provided directly by the consumer to a furnisher
does not trigger a furnisher’s duties under Section 1681s-2(b).
See, e.g., Gorman, 584 F.3d at 1154.
Here, Plaintiff does not
appear to contest - nor could he - the reasonableness of UCB’s
investigation after he sent the July 8, 2012 letter directly to
UCB disputing the outstanding debt.
17

learned about the nature of the dispute from the description in
the

.

.

.

notice

investigations
2012.

of

after

Defendant

dispute.”).

receiving

submits

an

First,

the

disputes

affidavit

from

UCB
in

conducted
May

Kristen

and

two
June

Arsenault,

UCB’s assistant general counsel, outlining the procedures UCB
uses

to

investigate

reporting agencies.
OSCAR

to

provides

receive
UCB

with

consumer

disputes

forwarded

by

credit

Specifically, UCB uses a system called econsumer
an

credit

Automated

history
Credit

disputes;

Dispute

e-OSCAR

Verification

(“ACDV”) after a consumer disputes an account with a credit
reporting agency.

(ECF No. 16-2 ¶ 6).

Ms. Arsenault explains

that UCB does not receive the original dispute from the consumer
and “the original dispute is not described in the ACDV beyond
the applicable dispute code.”

(Id.).4

4

She further attests that

In the opposition, Plaintiff challenges the admissibility
of the affidavit from UCB’s assistant general counsel on the
ground that Ms. Arsenault does not have personal knowledge of
how Plaintiff’s specific dispute was processed. (ECF No. 18, at
7).
This argument is unavailing.
Even accepting Plaintiff’s
position that Ms. Arsenault did not personally take part in the
applicable records’ creation, “[i]t is well established that
employees who are familiar with the record-keeping practices of
a business are qualified to speak from personal knowledge that
particular documents are admissible business records, and
affidavits sworn by such employees constitute appropriate
summary judgment evidence.”
Nader v. Blair, 549 F.3d 953, 963
th
(4
Cir. 2008).
By her declaration, Ms. Arsenault established
her familiarity with the process by which UCB investigates
information after it receives disputes from consumer reporting
agencies.
(See ECF No. 16-2, Arsenault’s Affidavit, attesting
that she has “personal knowledge of the matters set forth [in
the affidavit].”).
Her declaration is made with the requisite
18

“[t]he ACDV does not provide UCB with the name of the Credit
Reporting Agency with whom the consumer originally disputed the
debt.

Moreover,

when

the

Credit

Reporting

Agencies

same
on

dispute

the

same

comprehensive ACDV is provided to UCB.”
disputed

the

information

with

is

made

day,

to

only

one

(Id. ¶ 7).

Equifax

in

May

multiple
(1)

Plaintiff

2012,

and

UCB

received an ACDV from e-OSCAR regarding this dispute on May 24,
2012.
ACDV

(Id. ¶ 11).
was

coded

additional

Ms. Arsenault attests that “[t]he May 24

as:

‘Dispute

information

was

with the May 24 ACDV.”

Code

1:

provided

(Id.).

001:

by

Not

e-OSCAR

his/hers.’
in

No

connection

Defendant asserts that after

receiving a dispute such as the May 24, 2012 dispute that was
forwarded

from

Equifax,

“UCB

is

required

to

conduct

an

investigation to verify the name, address and Social Security
Number

of

Plaintiff’s

the

consumer.”

name,

address,

(Id.
and

¶

12).

social

After

security

verifying

number,

UCB

reported the results of its investigation to e-OSCAR on May 24,
2012.

As to Plaintiff’s dispute with TransUnion and Experian in

June 2012, UCB received the consolidated dispute on June 19,
2012.

(Id. ¶ 14).

Ms. Arsenault declares that the June 19 ACDV

was coded as “Dispute Code 1: 012: Claims paid the original
personal knowledge and Plaintiff’s objection to its contents
lacks merit.
See, e.g., Long v. Roy, No. JKB-12-683, 2012 WL
3059549, at *4 (D.Md. July 25, 2012) (accepting affidavit from
UCB’s assistant general counsel on summary judgment in an FCRA
case).
19

creditor before collection status or paid before charge-off.”
(Id.).

UCB asserts that after receiving this dispute, it is

required to verify the account status, payment rating, current
balance,

amount

past

due

and

payment

history

profile.

UCB

attests that it verified that the information furnished to the
credit reporting agencies was accurate and reported the results
of its investigation on e-OSCAR on June 19, 2012.
With

respect

information
believes

to

provided

UCB’s

each
on

dispute,

UCB

e-OSCAR.

investigation

was

It

(Id. ¶ 16).

reviewed

appears

“superficial”

all

that

of

the

Plaintiff

and

that

UCB

should have recognized that he disputed the same account with
Equifax, Experian, and TransUnion.

Thus, Plaintiff maintains

that his account should have been deleted with all three credit
reporting agencies, not only with TransUnion.
Judge

Bredar’s

reasoning

in

Beachley

Ass’n is instructive on this point.
(D.Md. Aug. 22, 2011).
world,

perhaps,

a

v.

PNC

Bank,

Nat.

2011 WL 3705239, at *3

The opinion notes that “[i]n a perfect

furnisher

of

credit

information

should

understand that a dispute as to responsibility for the account
is the same as a dispute that the account was discharged in
bankruptcy, but the FCRA does not require perfection, only a
reasonable

response.

PNC’s

responses

to

the

September

2008

disputes with TransUnion and Equifax were reasonable based on

20

the information the [credit reporting agencies] gave to PNC.”
Id. (emphasis added).
Federal
principle

appellate

that

courts

the

have

likewise

reasonableness

of

recognized

the

this

investigation

undertaken by furnishers depends on the information provided to
them.
and

For instance, the Fourth Circuit has held that the nature
specificity

of

the

information

provided

by

consumer

reporting agencies to the furnisher may affect the scope of the
investigation required of the furnisher.
431.
of

Johnson, 357 F.3d at

Although the Fourth Circuit found that the reasonableness

the

furnisher’s

investigation

created

a

triable

question

where the furnisher’s investigation was limited to confirming
the name and address listed on the ACDV and noting that a code
indicated that plaintiff was the sole responsible party on the
account,

the

notified

by

nature

of

furnisher’s
the

inquiry

consumer

[plaintiff’s]

occurred

reporting
dispute

after

agency
–

“of

namely,

it

had

the

been

specific

[plaintiff’s]

assertion that she was not a co-obligor on the account.”
(emphasis

added).

Thus,

to

the

extent

Plaintiff

Id.

relies

on

Johnson for the broad proposition that verifying the consumer’s
name,

address,

disputed

and

factual

social

issue

as

security
to

the

number

creates

reasonableness

a

of

genuine
a

given

investigation under the FCRA in all circumstances, such reliance
is misplaced.
21

Indeed, the court in Chiang v. Verizon New England Inc.,
595 F.3d at 38, reasoned that “a more limited investigation may
be appropriate when [consumer reporting agencies] provide the
furnisher with vague or cursory information about a consumer’s
dispute.

The

statute

is

clear

that

the

investigation

is

directed to the information provided by the [consumer reporting
agency].”

See also 15 U.S.C. § 1681s-2(b)(1)(B) (requiring a

furnisher to review “all relevant information” provided to it by
a consumer reporting agency).
concluded

that

the

In

Chiang, the First Circuit

furnisher

conducted

a

reasonable

investigation, finding significant that the furnisher “received
only

cursory

notices

from

the

[consumer

reporting

agencies,]

which were generalized and vague about the nature of plaintiff’s
disputes.
filing

The

system

summary

indicate

reports
that

the

in

[the

furnisher’s]

information

consisted of broad, non-specific statements.”

reported

online
largely

Id. at 40.

The

Seventh Circuit reached a similar conclusion in Westra v. Credit
Control

of

Pinellas,

409

F.3d

at

826,

holding

that

the

furnisher’s verification of plaintiff’s name, address, and date
of birth constituted a reasonable investigation under the FCRA
“given the scant information it received regarding the nature of
[plaintiff’s]
reasoned

that

dispute”
a

more

in

CDV

thorough

from

TransUnion.

investigation

may

The

court

have

been

warranted had TransUnion provided better notice of the nature of
22

the

dispute,

but

given

the

information

provided,

defendant’s

investigation was reasonable under the FCRA.
After reviewing the information provided on e-OSCAR, UCB
reported
credit

the

results

reporting

of

agency

TransUnion),

which

Plaintiff

prescribed

as

the

investigation
(e.g.,

subsequently
by

to

the

Equifax,

relayed

Section

respective

Experian,

the

and

information

1681s-2(b)(1)(C).

to

“[T]he

investigation is meant to determine if the disputed information
is ‘incomplete or inaccurate.’”

Chiang, 595 F.3d at 36.

The

incompleteness must be such as to make the furnished information
misleading in a material sense.
(holding

that

a

furnisher

See Saunders, 526 F.3d at 148

may

be

held

liable

under

Section

1681s-2(b) for failure to report information as disputed when
the omission is “misleading in such a way and to such an extent
that

it

can

(alteration
Here,

based

respective

be
in
on

expected

original)
the

credit

investigation,

UCB

to

[have

(internal

information

adverse[

quotation

provided

reporting
found

an]

agency

that

the

regarding Plaintiff’s debt was accurate.

on

and

]

marks

effect”)
omitted).

e-OSCAR
its

information

by

the

subsequent
furnished

(See ECF No. 16-2 ¶

16).
Plaintiff alleges that UCB also violated 15 U.S.C. § 1681s2(b)(1)(E), which provides that:

23

if an item of information disputed by a
consumer is found to be inaccurate or
incomplete or cannot be verified after any
reinvestigation under paragraph (1), for
purposes
of
reporting
to
a
consumer
reporting agency only, as appropriate, based
on
the
results
of
the
reinvestigation
promptly –
(i) modify that item of information;
(ii) delete that item of information; or
(iii)permanently block the reporting of that
item of information.
15 U.S.C. § 1681s-2(b)(1)(E).

Because UCB’s investigation did

not find that the information disputed (as reported on e-OSCAR)
was incomplete or inaccurate, Section 1681s-2(b)(1)(E) was never
triggered.
summary

See, e.g., Chiang, 595 F.3d at 37-38 (holding that

judgment

was

appropriate

on

an

FCRA

claim,

where

plaintiff failed to show any actual inaccuracies that furnisher
could have found through a reasonable investigation).
Plaintiff asserts in the opposition that “a reasonable jury
can find that UCB was negligent in its investigation if it did
not contact the original creditor to determine if the debt had
been paid.”

(ECF No. 18, at 9).

First, UCB maintains that

“[i]n investigating the June 19, 2012 [d]ispute, UCB verified
with the original creditor that the information furnished was
accurate.”

(ECF No. 19-2 ¶ 6).

In any event, any failure by

UCB to confirm the accuracy of the information with the creditor
and reliance on its own records, would not, in and of itself,
necessarily create a genuine dispute as to the reasonableness of
24

the

investigation.

The

court

in

Westra,

409

F.3d

at

827,

rejected a similar argument to the one Plaintiff lodges here.
Specifically, in that case, plaintiff argued that the furnisher
should have contacted him directly about the disputed account,
but the court reasoned that “[w]hile that would have undoubtedly
helped matters in the instant case, requiring a furnisher to
automatically contact every consumer who disputes a debt would
be terribly inefficient and such action is not mandated by the
FCRA.”

Similarly, the FCRA does not impose upon furnishers a

duty to contact creditors for verification every time a consumer
reporting agency forwards a dispute.

Thus, even disregarding

Ms. Arsenault’s supplemental affidavit stating that UCB verified
the

accuracy

of

the

information

with

the

original

UCB’s investigation was not per se unreasonable.

creditor,

Similarly, the

fact that UCB reported its results on e-OSCAR in response to the
June

2012

disputes

Plaintiff

submitted

to

Experian

and

TransUnion, and that these credit reporting agencies allegedly
reported conflicting outcomes on the same account also does not
create a genuine dispute of material fact as to whether UCB
violated the FCRA.

See, e.g., Beachley, No. JKB-10-1774, 2011

WL 3705239, at *4 (“[plaintiff] has made a bare statement in her
opposition

to

[defendant’s]

motion

to

the

effect

that

[defendant] did not notify other [consumer reporting agencies]
of the outcome of its investigation, but has not supported that
25

statement with any evidence.

Her assertion, with nothing more,

is not sufficient to survive a motion for summary judgment.”).
UCB

reported

the

same

information

to

two

credit

reporting

agencies and cannot be responsible to determine what they do
with the information or where they go beyond UCB’s response.
Based on the foregoing, summary judgment is appropriate on
Plaintiff’s FCRA claim.
b.

Discovery

Plaintiff

also

argues

that

granting

summary

judgment

in

favor of Defendant would be premature because he needs time to
conduct discovery.

“If a party believes that more discovery is

necessary for it to demonstrate a genuine issue of material
fact,

the

proper

course

is

to

file

a

Rule

56(f)

affidavit

stating ‘that it could not properly oppose a motion for summary
judgment without a chance to conduct discovery.’”

Harrods Ltd.

v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002)
(quoting Evans v. Techs. Applications & Service Co., 80 F.3d
954, 961 (4th Cir. 1996)).

Although Plaintiff is proceeding pro

se, he appears familiar with Rule 56(f), as he has submitted an
affidavit with the opposition in which he delineates reasons for
seeking discovery.
A request for discovery will not be granted if the party
merely wishes to conduct a “fishing expedition” in search for
evidence that may be helpful.

Morrow v. Farell, 187 F.Supp.2d
26

548,

551

(D.Md.

2002).

In

addition

to

the

specificity

requirement, a party must present reasons why it cannot put
forth the necessary opposing evidence, see Pine Ride Coal Co. v.
Local 8377, United Mine Workers of Am., 187 F.3d 415, 421-22 (4th
Cir. 1999), and must establish that the desired evidence could
be sufficient to create a genuine issue of material fact, see
McLaughlin v. Murphy, 372 F.Supp.2d 465, 470 (D.Md. 2004).
A

denial

of

Rule

56(f)

motion

is

generally

appropriate

“where the additional evidence sought for discovery would not
have

by

itself

sufficient

to

created

defeat

a

genuine

summary

issue

of

judgment.”

material

Strag

v.

fact

Board

of

Trustees, 55 F.3d 943, 954 (4th Cir. 1995); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Even viewing

Plaintiff’s pleading liberally, he has not demonstrated a need
for discovery.
Plaintiff first asserts that he needs “an opportunity to
conduct discovery to determine why UCB was still reporting the
account five years after the account was paid.”
8).

This

information

would

not

create

a

(ECF No. 18-1 ¶

genuine

issue

of

material fact sufficient to survive summary judgment because it
would

not

investigation

affect
under

the

determination

Section

1681s-b(2)

of

whether
was

UCB’s

reasonable.

Plaintiff next provides that his “discovery requests pertaining
to United Collection Bureau, Inc.’s reporting of the account
27

will determine whether it performed a reasonable investigation
of the disputed account after receiving [Plaintiff’s] disputes
from

the

credit

reporting

agencies.”

(ECF

No.

18-1

¶

10).

He argues that he needs discovery “to obtain facts pertaining to
what information was contained in the ACDV forwarded to UCB by
the credit reporting agencies.”
Plaintiff

asserts

documents

from

that

he

(ECF No. 18, at 8).
“an

opportunity

Experian

Equifax,

needs

and

TransUnion

Similarly,
to

to

subpoena
determine

what information was forwarded to United Collection Bureau, Inc.
in regards to [his] disputes.”
Arsenault

submitted

an

information

UCB

disputes.

Plaintiff

veracity

of

affidavit

and

investigated
Mere

speculation

on

essentially

and

that

June

the

wants

she

data

to
in

outlined

2012

about

regarding

provided

procedures

May

testifying

e-OSCAR

information

the

the

affidavit

received

the

(ECF No. 18-1 ¶ 12).

disputes

might

not

Ms.

the

Arsenault’s
to

from
be

the

Plaintiff’s

investigate

as

Ms.

how

UCB

Plaintiff.

credible

is

insufficient to survive summary judgment, and Plaintiff fails to
provide

any

evidence

that

UCB’s

credibility

is

questionable.

See Korotki v. Attorney Servs. Corp., 931 F.Supp. 1269, 1279
(D.Md. 1996) (a request to stay based on a challenge to the
evidence in the record without any showing that the evidence
lacks

credibility

is

insufficient);

Wilson

v.

Clancy,

747

F.Supp. 1154, 1158 (D.Md. 1990) (stating that a challenge to the
28

credibility

of

evidence

does

not

generate

a

“triable

issue

unless plaintiff produces competent evidence that contradicts
[the evidence]”).

Plaintiff fails to show how discovery could

create a genuine issue of material fact.

See Shah, No. 2004-

4059, 2005 WL 2216242, at *16 (“Plaintiff provides no evidence
that a request for production would generate anything but the
identical collector notes that Plaintiff already has access to,
or that deposing CCA’s affiant, John Burns, would result in
testimony

contrary

Finally,

Plaintiff

to

that

asserts

contained
that

his

in

his

affidavit.”).

“discovery

requests

pertaining to United Collection Bureau, Inc.’s reporting of the
account will determine whether it was maliciously or recklessly
reporting the account.”

(ECF No. 18-1 ¶ 9).

Plaintiff does not

provide any reason why this would create a genuine issue of
material fact or would not be duplicative of information already
on the record, such as information contained in Ms. Arsenault’s
affidavit.
Based on the foregoing, Plaintiff’s request for discovery
will be denied.
3.

Defamation Claim (Count III)

Plaintiff also asserts a cause of action for defamation.
Section 1681h(e) of the FCRA provides that “no consumer may
bring any action or proceeding in the nature of defamation . . .
with respect to the reporting of information against . . . any
29

person who furnishes information to a consumer reporting agency
. . . except as to false information furnished with malice or
willful intent to injure such consumer.”

15 U.S.C. § 1681h(e);

see also Spencer, 81 F.Supp.2d at 597 (FCRA provides qualified
immunity
malice

from
or

state

willful

omitted).5

law

claims

intent

to

unless
injure)

defendant

acted

(internal

with

citations

Section 1681h(e) is implicated because Plaintiff’s

defamation claim involves “the reporting of information,” and is
brought
consumer

against

a

reporting

TransUnion).

“person

who

agency”

furnished

(e.g.,

information

Experian,

to

Equifax,

See Spencer, 81 F.Supp.2d at 597.

a
and

This section

appears to exempt certain state law tort claims – those alleging
falsity and malice – from the preemptive reach of the FCRA.
Plaintiff has not pled sufficient facts to show that UCB
acted with malice or willful intent to injure.

To show malice,

Plaintiff needed to plead that UCB acted with reckless disregard
for the truth or falsity of the information it was reporting,
which requires a showing that UCB acted with a high degree of
awareness of probable falsity or had serious doubts as to its
veracity.

See

Schelhaus

v.

Sears

Holding

Corp.,

2009

WL

4728989, at *4 (D.Md. Dec. 3, 2009) (dismissing defamation claim

5

Section 1681h(e) was intended to govern preemption of
common-law claims while Section 1681t(b) was intended to govern
preemption of state statutory claims.
See Beuster v. Equifax
Information Servs., 435 F.Supp.2d 471, 474-479 (D.Md. 2006).
30

under Rule 12(b)(6) as preempted by the FCRA; “[u]ltimately,
Plaintiff
preemptive

failed

to

plead

effect[sic]

of

facts
the

sufficient

FCRA.”).

to

The

overcome
first

the

amended

complaint contains no factual support for Plaintiff’s conclusory
averment that “UCB intentionally and maliciously instructed the
credit

bureaus

to

report

publicly

that

Plaintiff

collection account” when it knew the reporting was false.
No. 14 ¶ 33).

had

a

(ECF

From the allegations in the complaint, there is

no indication that UCB knew the information it was allegedly
reporting

regarding

Plaintiff’s

debt

was

false.

Plaintiff

argues that UCB’s later removal of the account from Plaintiff’s
credit file following Plaintiff’s July 8, 2012 dispute to UCB
evidences the falsity of UCB’s prior reporting.

This sequence

of events is not sufficient to allege malice and escape the
FCRA’s preemptive reach.

As Judge Motz noted, “[a] showing of

malice cannot be made by proving a lack of certainty; malice
requires

facts

indicating

serious

Schelhaus, 2009 WL 4728989, at *4.
lacks this showing.

doubts

as

to

veracity.”

Plaintiff’s defamation claim

Accordingly, Plaintiff’s defamation claim

will be dismissed.
4.

MCDCA Claim (Count IV)

UCB

asserts

that

the

MCDCA

count

should

be

dismissed

because Plaintiff’s first amended complaint fails to make the
necessary allegations for a prima facie MCDCA claim.
31

The MCDCA

“‘prohibits

debt

collectors

from

utilizing

threatening

or

underhanded methods in collecting or attempting to collect a
delinquent debt.’”
DKC-11-3758,

2013

Piotrwoski v. Wells Fargo Bank, N.A., No.
WL

247549,

at

*9

(D.Md.

Jan.

22,

2013)

(quoting Bradshaw v. Hilco Receivables, LLC, 765 F.Supp.2d 719,
731-32

(D.Md.

2011));

Md.

Code

Ann.,

Com.

Law

§

14-202.

Plaintiff alleges that UCB violated Section 14-202(3) of the
MCDCA by disclosing derogatory information to Equifax, Experian,
and TransUnion despite knowing that Plaintiff did not owe a debt
to

Prince

George’s

Hospital

Plaintiff’s creditworthiness.

and

this

negatively

(ECF No. 14 ¶ 39).

affected

Section 202-

(3) prohibits a debt collector – in collecting or attempting to
collect an alleged debt – to “disclose or threaten to disclose
information

which

affects

the

debtor’s

reputation

for

creditworthiness with knowledge that the information is false.”
Even assuming Plaintiff has satisfied the threshold showing
that the prohibited conduct occurred in an attempt to collect a
debt,

he

fails

to

include

any

factual

grounding

for

the

conjecture that UCB knew that it reported false information to
TransUnion, Experian, and Equifax.

See Shah, 2005 WL 2216242,

at *11 (“[p]laintiff fails to point to any evidence to show that
CCA had any reason to doubt the validity of the debt when it
first

attempted

to

collect

the

reported the debt to the CRAs.
32

debt

and

when

it

initially

Plaintiff therefore fails to

establish the requisite knowledge component with regard to CCA’s
initial actions.”) (emphasis in original).

Plaintiff’s naked

assertion that his July 8, 2012 correspondence to UCB in which
he

“called

UCB’s

bluff”

prompted

UCB

to

stop

reporting

the

account to the credit bureaus does not suggest that they knew
their earlier reporting was false.

Akalwadi, 336 F.Supp.2d at

511 (“[u]nlike the FDCPA, the MCDCA is not a strict liability
statute”).

Plaintiff

asserts

that

UCB

“immediately

ceased

reporting the account to the credit bureaus after receiving Mr.
Alston’s

July

8,

2012

reporting was false.”
fact,

this

reporting

supports

the

account

correspondence

because

it

knew

the

(ECF No. 14 ¶ 41) (emphasis added).
Defendant’s
to

the

position

credit

that

bureaus

UCB

after

disputed the accuracy of the information reported.

In

stopped
Defendant

To trigger

liability under Section 14-202(3), Plaintiff must allege facts
to show some knowledge component with regard to UCB’s actions.
Akalwadi, 336 F.Supp.2d at 511.
here.

Plaintiff has not done that

See, e.g., Robinson v. Greystone Alliance, LLC, No. BPG-

10-3658, 2011 WL 2601573, at *7 (D.Md. June 29, 2011) (plaintiff
failed to point to any evidence that a collection agency knew
that the information was false or acted with reckless disregard
as

to

its

F.Supp.2d

falsity
at

595

at

the

time

(“[D]efendants

of
can

disclosure);
be

found

Spencer,
liable

81

under

paragraphs (3) or (8) of the MCDCA for disclosing information or
33

threatening to enforce a right with actual knowledge or reckless
disregard as to the falsity of the information or the existence
of the right.”).
Moreover, Plaintiff’s allegation that UCB tried to collect
on a time-barred debt also does not save his MCDCA claim, as
Plaintiff has alleged no facts to show that UCB possessed actual
knowledge that the debt was time-barred at the time it reported
Plaintiff’s account to the three credit bureaus.
Bradshaw

v.

Hilco

Receivables,

LLC,

765

See, e.g.,

F.Supp.2d

719,

732

(D.Md. 2011) (the MCDCA requires that the debt collector have
actual knowledge or have acted with reckless disregard that the
right it was trying to enforce did not exist).
Based

on

the

foregoing,

Plaintiff’s

MCDCA

claim

also

warrants dismissal.
B.

Plaintiff’s Motion to Strike

Plaintiff
supplemental

has

moved

affidavit

of

to

strike

UCB’s

two

Assistant

items:

(1)

General

the

Counsel

Kristen Arsenault attached to Defendant’s reply to Plaintiff’s
opposition; and (2) a portion of UCB’s reply brief referencing
Ms.

Arsenault’s

knowledge

to

testify

about

UCB’s

business

records.
Federal

Rule

of

Civil

Procedure

12(f)

is

the

only

procedural rule addressing motions to strike, and it states that
a court may, on its own or on motion made by a party, “strike
34

from

a

pleading

an

insufficient

defense

or

any

immaterial, impertinent, or scandalous matter.”

redundant,

Fed.R.Civ.P.

12(f) (emphasis added); see also McNair v. Monsantro Co., 279
F.Supp.2d 1290, 1298 (M.D.Ga. 2003).
include

only

the

complaint,

the

Per Rule 7(a), pleadings
answer

to

a

complaint,

counterclaim, or crossclaim, and - if permitted by the court –
the reply to an answer.

Thus, “‘[m]otions, briefs or memoranda,

objections, or affidavits may not be attacked by the motion to
strike.’”

Lowery v. Hoffman, 188 F.R.D. 651, 653 (M.D.Ala.

1999) (citing 2 James Moore et al., Moore’s Federal Practice §
12.37[2]

(3d

ed.

1999)).

Here,

Plaintiff

seeks

to

strike

portions of both a reply brief and a supplemental affidavit UCB
filed, neither of which constitutes a pleading under Rule 7(a).
Plaintiff’s

motion

to

strike

these

items

is,

therefore,

procedurally improper and will be denied.
When

addressing

such

procedurally

improper

motions

to

strike, however, courts have long recognized that inadmissible
evidence identified by the moving party should be disregarded,
although

not

stricken,

when

resolving

other

pending

motions.

E.g., McNair, 279 F.Supp.2d at 1298; Lombard v. MCI Telecomms.
Corp., 13 F.Supp.2d 621, 625 (N.D.Ohio 1998).

Here, Plaintiff

asserts that Ms. Arsenault’s supplemental affidavit should be
stricken because she attests new information in a reply brief.
Plaintiff further contends that Page 14 of Defendant’s reply
35

brief in which UCB argues that Ms. Arsenault is competent to
testify about UCB’s business records should also be stricken.
Specifically,

Plaintiff

seems

to

think

that

Defendant

is

asserting – for the first time in its reply brief – that Ms.
Arsenault personally “handled the actual credit report dispute”
(ECF

No.

20,

at

1)

and

that

UCB

verified

the

information

furnished to the credit reporting agencies with the original
creditor.
surreply.

Alternatively,

Plaintiff

seeks

leave

to

submit

a

(ECF No. 20, at 2).

Plaintiff’s objections to the supplemental affidavit and a
portion of Defendant’s reply brief will be denied.

First, it

appears that Defendant initially argued in its motion to dismiss
that it verified with the original creditor that the information
furnished to the credit reporting agencies was accurate.
ECF No. 16-1, at 18).

(See

In any event, as discussed supra, whether

UCB verified the accuracy of the information furnished with the
original creditor is not outcome determinative on the issue of
the reasonableness of UCB’s investigation.
Moreover,
testified

in

regarding

her
her

forth in her affidavit.
Klein

Enterprises,

LLC,

original
personal

affidavit,
knowledge

of

Ms.
the

Arsenault
items

set

See, e.g., ADF MidAtlantic, LLC v.
WMN-13-559,

2013

WL

6012971,

at

*5

(D.Md. Nov. 12, 2013) (denying motion to strike affidavit, where
the initial affidavit lacked indication that the affiant had
36

personal

knowledge,

and

plaintiff

then

submitted

a

second

affidavit in which affiant averred that the statements he made
in the first affidavit were based on his personal knowledge).
But

even

accepting

as

true

Plaintiff’s

position

in

the

opposition that Ms. Arsenault did not have personal knowledge of
his specific dispute in the sense that she did not personally
review the applicable records, as stated supra, “[i]t is well
established that employees who are familiar with the recordkeeping practices of a business are qualified to speak from
personal knowledge . . . and affidavits sworn by such employees
constitute

appropriate

summary

judgment

Blair, 549 F.3d 953, 963 (4th Cir. 2008).

evidence.”

Nader

v.

By her affidavit, Ms.

Arsenault established her familiarity with the process by which
UCB

investigates

Arsenault

to

disputes.

personally

Thus,

handle

even

the

Plaintiff’s

failure

dispute

of

Ms.

would

not

undermine her ability to testify because as assistant general
counsel to UCB, she is familiar with its business practices.
Furthermore, as Judge Williams noted in Fontell v. MCGEO
UFCW Local 1994, AW-09-2526, 2010 WL 3086498, at *14 (D.Md. Aug.
6, 2010), defendants are allowed to reply to counter-points made
by plaintiff in the opposition – this is “the entire purpose of
a reply.”
Arsenault’s

Here, UCB’s argument in its reply brief regarding Ms.
handling

of

Plaintiff’s

disputes

and

the

supplemental affidavit from Ms. Arsenault testifying that UCB
37

verified

the

creditor

are

Plaintiff’s
originally

accuracy
not

of

new

challenges
made

these

the

information

arguments,
in

the

arguments

but

with

the

merely

original

responses

to

opposition.

Moreover,

UCB

in

supporting

the

its

brief

motion to dismiss, or in the alternative, for summary judgment.
Accordingly, Plaintiff’s motion to strike and request to
file a surreply will be denied.
C.

Motion for Leave to File a Second Amended Complaint

On August 21, 2013, Plaintiff filed a motion for leave to
file a second amended complaint, seeking to add Prince George’s
Hospital as a defendant in this action and to raise additional
causes

of

violations.

action

for

respondeat

superior

liability

and

MCPA

(ECF No. 23).

Leave to amend the complaint should be denied where “the
amendment would be prejudicial to the opposing party, there has
been bad faith on the part of the moving party, or the amendment
would be futile.”

HCMF Corp. v. Allen, 238 F.3d 273, 276 (4th

Cir. 2001) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503,
509 (4th Cir. 1986)).

“An amendment is futile when the proposed

amendment is clearly insufficient on its face, or if the amended
claim would still fail to survive a motion to dismiss pursuant
to Fed.R.Civ.P. 12(b)(6).”

El-Amin v. Blom, Civ. No. CCB-11-

3424, 2012 WL 2604213, at *11 (D.Md. July 5, 2012).

38

Based

on

the

facts

presented,

Plaintiff

will

not

be

permitted to amend the complaint because an amendment would be
futile.

As discussed supra, Plaintiff fails to state a claim

for relief under the FDCPA and MCDCA.

Plaintiff’s MCPA claim in

the Second Amended Complaint is expressly predicated only on the
alleged violation of the MCDCA.

(See ECF No. 23-3, at 8).

of

trade

the

‘unfair

or

deceptive

practices’

“One

specifically

enumerated and prohibited by the [MCPA] is a violation of the
MCDCA.”

Md. Code Ann., Com. Law § 13-301(14)(iii).

Because

Plaintiff fails to plead a prima facie MCDCA claim, however, his
MCPA claim cannot survive.

Thus, granting leave for Plaintiff

to amend the complaint to add a deficient claim would be futile.
Similarly, Plaintiff’s respondeat superior claim appears to be
premised, at least partially, on alleged violations of the MCPA.
Specifically, Plaintiff asserts that “PG Hospital is therefore
liable to Mr. Alston through the Doctrine of Respondeat Superior
for the intentional and negligent acts, errors, and omissions
done in violation of the Maryland Consumer Protection Act by UCB
and its collection employees in their attempts to collect this
alleged debt from Mr. Alston.”

(Id. ¶ 23).

To the extent

Plaintiff relies on the MCPA claim to assert respondeat superior
liability, this claim fails.
Plaintiff’s

claims

survive

In any event, because none of
dismissal,

39

allowing

Plaintiff

to

amend

the

complaint

to

add

a

claim

for

respondeat

superior

liability would be futile.
Furthermore,

allowing

Plaintiff

to

add

Prince

George’s

Hospital as a second defendant would likewise be futile.

First,

Plaintiff does not appear to assert the FDCPA claim against the
Hospital

-

nor

could

he

-

because

“[a]s

[c]reditors are not subject to the FDCPA.”

a

general

matter,

Maguire v. Citicorp

Retail Services, Inc., 147 F.3d 232, 235 (2d Cir. 1998); see 15
U.S.C. § 1692(a)(6).

It is well-settled law that creditors are

not debt collectors and are statutorily exempt from liability
under the FDCPA.

Scott v. Wells Fargo Home Mortgage Inc., 326

F.Supp.2d 709, 717 (E.D.Va. 2003), aff’d, 67 F.App’x 238 (4th
Cir. 2003).

Plaintiff’s FCRA claim is premised on violations of

Section 1681s-2(b)(1); it does not appear that Prince George’s
Hospital qualifies as a ‘furnisher of information’ under the
FCRA to trigger liability under this section.

Moreover, there

are no allegations in the complaint that Plaintiff disputed the
debt with Prince George’s Hospital or that any such dispute was
forwarded

to

Furthermore,

Prince

George’s

Plaintiff’s

Hospital

defamation

claim

for

investigation.

warrants

dismissal

because it is preempted by the FCRA; accordingly, this claim
against Prince George’s Hospital would also be futile.
Based on the foregoing, Plaintiff’s motion for leave to
file a second amended complaint will be denied.
40

IV.

Conclusion
For the foregoing reasons, Plaintiff’s FDCPA, MCDCA, and

defamation claims will be dismissed.
of

Defendant

will

be

granted

as

to

Summary judgment in favor
Plaintiff’s

Plaintiff’s request for discovery will be denied.
motion to strike will be denied.

FCRA

claim.

Plaintiff’s

Plaintiff’s motion for leave

to file a second amended complaint will also be denied.
separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

41

A