Awah v. Capital One Bank, NA
MEMORANDUM OPINION (c/m to Plaintiff 1/22/15 sat). Signed by Judge Deborah K. Chasanow on 1/22/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. DKC 14-1288
CAPITAL ONE BANK, NA
Presently pending and ready for resolution in this consumer
case are the following motions: (1) motion to dismiss filed by
Defendant Capital One Bank, N.A. (“Defendant” or “Capital One”)
(ECF No. 10); (2) motion opposing case removal and to remand
filed by Plaintiff Edmund Awah (“Plaintiff” or “Mr. Awah”) (ECF
No. 12); (3) motion to defer ruling on the motion to dismiss,
filed by Plaintiff (ECF No. 15); (4) motion for leave to amend
the complaint filed by Plaintiff (ECF No. 16); and (5) motion
requesting ruling on pending motions filed by Plaintiff (ECF No.
The issues have been briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
following reasons, Plaintiff’s motion opposing case removal and
requesting remand will be denied.
Plaintiff’s motion for leave
to amend the complaint will be granted in part, and he will have
fourteen (14) days to file a new amended complaint in accordance
with this memorandum opinion.
Defendant’s motion to dismiss
will be denied as moot.
Plaintiff’s motions to defer ruling on
the motion to dismiss and to adjudicate the pending motions will
be denied as moot.
previous complaint filed by pro se Plaintiff in this court on
March 7, 2013.
See Awah v. Capital One Bank NA, Case No. 13-CV-
00706 (D.Md. 2013).
Plaintiff’s complaint in that case stated
that he had a line of credit with Capital One Bank and that the
balance on the line of credit was $570.39 as of October 2011.
Case No. 13-CV-00706, at ECF No. 1.
Plaintiff stated that he
made several check deposits to Defendant and instructed the bank
Plaintiff, Defendant did not credit his account with the check
deposits, and instead filed a “derogatory report on Plaintiff’s
Plaintiff alleged violations of the Fair
Debt Collection Practices Act (“FDCPA”).
The court issued an
Plaintiff consequently filed a one-page supplement in which he
asserted that the report filed in late 2012 “was derogatory
because it was false and consequently impacted  Plaintiff’s
credit file in a negative way.”
(Id. at ECF No. 5).
unlawful because it violated Section 1692.
Defendant then moved to dismiss the complaint for failure
to state a claim, arguing that based on the face of Plaintiff’s
complaint, Capital One Bank is a “creditor” and not a “debt
collector” and therefore outside the FDCPA’s liability coverage.
(Id. at ECF No. 8-1).
Plaintiff then moved to dismiss the case,
writing that “[t]his matter will now be filed in state court as
the federal court is not the appropriate forum.”
(Id. at ECF
The court issued a memorandum opinion and order on
September 19, 2013 granting Plaintiff’s motion and dismissing
the case without prejudice.
(ECF Nos. 14, 15, 16).1
removal in this case, citing federal question jurisdiction as
the jurisdictional basis.
(ECF No. 1).
Defendant attached a
copy of the complaint Mr. Awah filed in the District Court of
Maryland for Prince George’s County.
(ECF Nos. 1 & 2).
only allegation in the complaint is that “Defendant filed a
derogatory report on Plaintiff’s credit file.
The report was
false, malicious and violated sections of U.S. Code 15 Section
(ECF No. 1-1, at 3).
Defendant subsequently moved to
dismiss for failure to state a claim, again arguing that Capital
The court issued an
Defendant’s motion to dismiss.
One is not a debt collector under the FDCPA.
Plaintiff was provided with a
(ECF No. 10).
notice (ECF No. 11),
which advised him of the pendency of the motion to dismiss and
his entitlement to respond within seventeen (17) days from the
Roseboro v. Garrison, 528 F.2d 309, 310 (4th
date of the letter.
Cir. 1975) (holding pro se plaintiffs should be advised of their
submitted a motion in which he argues that Defendant improperly
removed the action and that this matter belongs in state court.
Defendant’s removal and remand the case to the state court.”
(Id. at 2).
Plaintiff then filed a supplement to his motion.
(ECF No. 13).
Defendant opposed Plaintiff’s request to remand.
(ECF No. 14).
Plaintiff then submitted another motion in which
he requests “that the Court defer ruling on Defendant’s [m]otion
Defendant’s [r]emoval [p]etition.”
(ECF No. 15).
On June 4, 2014, Plaintiff moved for leave to amend his
(ECF No. 16).
Defendant opposed the motion.
(ECF No. 17).2
On December 11, 2014, Plaintiff filed a motion requesting
a ruling on pending motions.
(ECF No. 18).
In light of the
Plaintiff’s Motion to Remand
from state court.
(See ECF Nos. 12 & 13).
that his original dismissal of Civil Case Number 13-706 and
Defendant’s initial motion to dismiss – namely, that Capital One
is not a debt collector within the meaning of the FDCPA (and
action – and argues again in the instant motion to dismiss –
that it cannot be held liable for any violations of the FDCPA,
regardless of whether the action is brought in federal or state
identical action in state court asserting the same cause of
action under the FDCPA fails to cure the deficiencies Defendant
identified in its original motion to dismiss in Case Number 13706.
Plaintiff also argues that “[s]tate courts exercise broad
The filing of this matter in the state court is
issuance of this memorandum opinion, the motion will be denied
(ECF No. 13 ¶ 12).
Under 28 U.S.C. §
1441(a), a defendant may remove a case filed in state court if
the federal courts would have original jurisdiction over the
“The removability of a case depends upon the
application for removal.”3
Francis v. Allstate Ins. Co., 709
F.3d 362, 367 (4th Cir. 2013) (quotations and citations omitted).
As Defendant points out, at the time of removal, Plaintiff’s
complaint expressly indicated that his action was premised on
alleged violations of the FDCPA – a federal statute.4
action was properly removed.
Plaintiff also suggests that the court lacks subject
matter jurisdiction because “Defendant failed to establish
sufficient evidence of the jurisdictional threshold of $75,000
pursuant to Section 1332.”
(ECF No. 13 ¶ 20).
jurisdictional basis for removal is federal question, however,
Plaintiff further argues that removal is improper because
Defendant failed to serve on Plaintiff “a copy of all process
pleadings, and orders” served in the state court action.
No. 12 ¶ 8). The Notice of Removal filed by Defendant contains
a certificate of service indicating that on April 16, 2014,
Defendant served on Plaintiff via first-class mail copies of the
Notice of Removal.
(See ECF No. 1, at 4).
In any event, 28
U.S.C. § 1446(a) does not contain any special service
It requires the removing party to file a notice
of removal containing a “short and plain statement of the
grounds for removal, together with a copy of all process,
pleadings, and orders served upon [the removing party].”
Plaintiff indicates that he has already filed a motion
with the state court to “change the violations of federal law to
the violations of state law in the pleadings.”
(ECF No. 13 ¶
13). Plaintiff’s attempt to amend the complaint in state court
amend the complaint in this court, indicating that he no longer
asserts claims under the FDCPA, instead opting to proceed under
the “Maryland Fair Debt Collection Practices Act.”
jurisdiction has been eliminated, the court has discretion to
jurisdiction, to the state court.
See 28 U.S.C. § 1367(c)(3);
Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 617 (4th Cir.
Indeed, district courts in the Fourth Circuit “enjoy
jurisdiction over state claims when all federal claims have been
Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.
Factors to be considered include the “convenience and
fairness to the parties, the existence of any underlying issues
For the reasons explained below, Plaintiff will
Plaintiff’s only viable claims pertain to Defendant’s methods of
following removal to this court renders the filing in state
court a nullity, however.
collection under the MCDCA, then the court may exercise its
discretion and remand the case to state court.5
Plaintiff’s Motion for Leave to Amend the Complaint
As indicated above, Plaintiff moved for leave to amend the
complaint in this court.
(ECF No. 16).
Rule 15(a)(1) permits a
party to amend its pleading once as a matter of course within 21
days after serving it; or 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule 12(b),
(e), or (f), whichever is earlier.
“In all other cases, a party
may amend its pleading only with the opposing party’s written
consent or the court’s leave.
The court should freely give
leave when justice so requires.”
court should deny leave to amend only when “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
Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th
Keller v. Prince George’s Cnty., 923 F.2d 30, 33 (4th Cir. 1991)
(upholding district court order denying plaintiff leave to amend
Plaintiff also filed a motion in which he requests that
the court defer ruling on Defendant’s motion to dismiss until
“the Court decides the outcome of Defendant’s [r]emoval
(ECF No. 15).
Plaintiff’s motion to defer will
now be denied as moot.
applicable statute of limitations because such amendment would
“An amendment is futile when the proposed amendment
is clearly insufficient or frivolous 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, No. CCB-
11-3424, 2012 WL 2604213, at *11 (D.Md. July 5, 2012) (internal
citations and quotation marks omitted).
Plaintiff’s proposed one-page amended complaint states that
Defendant filed a derogatory report on Plaintiff’s credit file
in violation of “the Maryland Fair Debt Collection Practices Act
indicated on the report was incorrect; (ii) failure to cease
(ECF No. 16-1).
It appears that Plaintiff now
Collection Act (“MCDCA”), Md. Code Ann., Com. Law, § 14-201 et
Defendant argues that “the amended complaint contains no
cognizable facts upon which Plaintiff can base a claim.
sole new addition in the proposed [a]mended [c]omplaint is a
Practices Act,’ and the [a]mended [c]omplaint does not contain
any statutory references from which Capital One may determine
the precise cause of action that Plaintiff apparently seeks to
(ECF No. 17, at 4).
Defendant believes that Plaintiff
again fails to specify “what sort of report was filed, when it
contends that insofar as Plaintiff attempts to assert a claim
under the MCDCA, such claim is preempted by Section 1681t(b) of
the Fair Credit Reporting Act (“FCRA”).
(Id. at 5).
improper credit reporting by Capital One; Defendant avers that
Sections 1681t(b)(1)(F) and 1681s-2(a)(1)(A) of the FCRA preempt
any state law claims under the MCDCA related to the provision of
credit information to consumer reporting agencies.6
Section 1681t(b)(1)(F) states, in relevant part:
No requirement or prohibition may be imposed
under the laws of any State
(1) With respect
regulated under –-
(F) section 1681s-2 of this title, relating
to the responsibilities of persons who
furnish information to consumer reporting
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, 474-79 (D.Md. 2006).
Section 1681h(e) specifically references actions “in the nature
of defamation, invasion of privacy, or negligence with respect
to the reporting of information.”
It does not appear that
Plaintiff asserts any common law claims.
There are two exceptions to the preemption provision of
Section 1681t(b)(1)(F): “this paragraph shall not apply: (i)
Under Section 1681s-2(a)(1)(A), a furnisher of information is
information he knows is not accurate.
Similarly, Section 14-
202(3) of the MCDCA states, in relevant part:
In collecting or attempting to collect an
alleged debt a collector may not
knowledge that the information is false.
Insofar as Plaintiff alleges a violation of the MCDCA because
prevention of knowing disclosures of false credit information to
[consumer reporting agencies] because of the potential harm to
Information Services, LLC, et al., Civ. Action No. GLR-13-934,
Massachusetts Annotated laws (as in effect on September 30,
1996); or (ii) with respect to section 1785.25(a) of the
California Civil Code (as in effect on September 30, 1996).” 15
U.S.C. § 1681t(b)(1)(F).
The MCDCA defines a “collector” as a “a person collecting
or attempting to collect an alleged debt arising out of a
Md. Code Ann., Com. Law, § 14-201(b).
The statute’s definition of a person includes corporations. Id.
§ 14-201(d). Although Defendant argues in its motion to dismiss
that Plaintiff fails to allege facts that Capital One is a “debt
collector” within the meaning of the FDCPA, Defendant does not
make this argument with the respect to the MCDCA claim.
MCDCA contains a broader definition of “collector” than the
definition of “debt collector” under the FDCPA. See 15 U.S.C. §
1692a(6) (defining “debt collector” under the FDCPA).
2014 WL 580148, at *5 (D.Md. Feb. 11, 2014).
in § 1681t(b) is clear that § 1681s-2(a)(1)(A) preempts any
state law claims related to such knowing disclosures.”
insofar as it is premised on Defendant’s false reporting to a
consumer reporting agency pursuant to Section 14-202(3) because
his claim falls squarely within Section 1681t(b)(1)(F) and is
preempted by the FCRA.
Moreover, Plaintiff has maintained throughout his filings
that he is not asserting a federal cause of action, nor could he
under the facts alleged.
As relevant here, the FCRA imposes
15 U.S.C. § 1681s-2.
Any claim that Defendant was
consumer reporting agency could only arise under Section 1681s2(a), and is, therefore, unenforceable through a private suit.
F.App’x 585, 589 (4th Cir. 2003) (“[T]he FCRA does not provide
the Beatties with a private cause of action [for a violation of
More specifically, this particular
statutory language may be enforced only by federal and state
agencies and officials.”); Robinson v. Greystone Alliance, LLC,
No. BPG-10-3658, 2011 WL 2601583, at *3 (D.Md. June 29, 2011)
(“[T]he FCRA expressly reserves the enforcement of § 1681s-2(a)
to federal and state officers.”).
The FCRA “explicitly bars
suits for violations of § 1681-2(a), but consumers can still
bring private suits for violations of § 1681s-2(b).”
v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 149 (4th Cir.
2008) (citing § 1681s-2(c)).
As for Section 1692s-2(b), Judge
Messite explained in Ausar-El v. Barclay Bank Delaware, Civ. No.
PJM 12-0082, 2012 WL 3137151, at *3 & n. 2 (D.Md. July 31,
to bring a claim under § 1681s-2(b), a
plaintiff must establish three elements: (1)
that he or she notified the consumer
information, (2) that the consumer reporting
agency notified the defendant furnisher of
the dispute, and (3) that the furnisher then
accurate information. . . .
It would not
suffice for [plaintiff] to have notified
[defendant] himself; the notice must instead
Plaintiff has not alleged in any of his complaints that he
notified a consumer reporting agency of a dispute regarding the
accuracy of information reported to it, nor does he assert that
Defendant was notified by the consumer reporting agency of a
dispute such that it could have violated its duties pursuant to
(“Because Plaintiff’s Amended Complaint itself fails to allege
completeness or accuracy of information provided to that agency,
Plaintiff has failed to state a claim for relief under FCRA”);
Akpan v. First Premier Bank, Civ. Action No. DKC 09-1120, 2010
WL 917886, at *3 (D.Md. Mar. 8, 2010) (dismissing complaint
alleging violations of the FCRA where plaintiff did not include
allegations sufficient to state a claim under 15 U.S.C. § 1681s2(b)).
As the proposed amended complaint stands, Plaintiff has
not alleged facts sufficient to show that he is entitled to
proceed under Section 1681s-2(b) of the FCRA.
Plaintiff does indicate in his amended complaint, however,
that he objects to Defendant’s failure to cease communication
upon request and “communication after debt validation,” although
he does not include any other supporting factual allegations or
point to any applicable provisions in the MCDCA.
(ECF No. 16-
threatening or underhanded methods in collecting or attempting
to collect a delinquent debt.”
Bradshaw v. Hilco Receivables,
LLC, 765 F.Supp.2d 719, 731-32 (D.Md. 2011).
Section 14-202(6) of the MCDCA states that in collecting or
“[c]ommunicate with the debtor or a person related to him with
the frequency, at the unusual hours, or in any other manner as
reasonably can be expected to abuse or harass the debtor.”
As explained above, granting Plaintiff leave to amend the
complaint to assert a claim under Section 14-202(3) of the MCDCA
premised on Defendant’s filing of a false consumer report would
Plaintiff will be granted leave to file a new amended complaint
within fourteen (14) days, however, considering that he also
appears to be raising claims regarding Defendant’s methods of
collection under the MCDCA.
If the only claims raised in this
new amended complaint pertain to Defendant’s collection methods
federal claims – then the court can exercise its discretion and
remand to state court.
See United Mine Workers of America v.
Gibbs, 383 U.S. 715, 729 (1966) (“Needless decisions of state
law [by federal courts] should be avoided both as a matter of
comity and to promote justice between the parties, by procuring
for them a surer-footed reading and applicable law.”).9
Because Plaintiff no longer asserts an FDCPA claim and has
been granted leave to amend the complaint on limited grounds
identified above, Defendant’s motion to dismiss the initial
complaint will be denied as moot.
For the foregoing reasons, Plaintiff’s motion opposing case
motion for leave to amend will be granted in part.
will have fourteen (14) days to file an amended complaint in
accordance with the memorandum opinion.
Plaintiff’s motions to
requesting adjudication of pending motions (ECF No. 18) will be
denied as moot.
denied as moot.
Defendant’s motion to dismiss also will be
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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