Awah v. Capital One Bank, NA

Filing 58

MEMORANDUM OPINION (c/m to Plaintiff 3/11/16 sat). Signed by Judge Deborah K. Chasanow on 3/11/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
EDMUND AWAH
:
v.

:

Civil Action No. DKC 14-1288

:
CAPITAL ONE BANK, N.A.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this consumer
case are the following motions: (1) a partial motion to dismiss
filed by Defendant Capital One Bank, N.A. (“Defendant”) (ECF No.
32); (2) a motion for enlargement of time to file a status
report filed by Plaintiff Edmund Awah (“Plaintiff”) (ECF No.
44); (3) a motion for summary judgment filed by Defendant (ECF
No. 48); and (4) a motion to remand filed by Plaintiff (ECF No.
54).

The issues have been briefed, and the court now rules, no

hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, Defendant’s motion for summary judgment will
be

granted.

Plaintiff’s

motion

to

remand

will

be

denied.

Plaintiff’s request for a time extension and Defendant’s partial
motion to dismiss will be denied as moot.
I.

Background
A.

Factual Background

Plaintiff maintained a checking account (the “Account”) and
line

of

credit

(the

“Line

of

Credit”)

with

Defendant.

The

accounts were linked to prevent an overdraft of funds from the
Account.

(ECF No. 48-1, at 2).

In October 2011, the Account

and Line of Credit reflected a balance due of $570.39.
Nos. 34 ¶ 2).

(ECF

On October 19, Plaintiff deposited two checks –

check number 680 for $506.52 and check number 681 for $70.39 toward the outstanding balance on the Line of Credit.
53-4, at 2; 53-5, at 2).
not

credit

Plaintiff’s

deposits.”

(ECF Nos.

Plaintiff alleges that “Defendant did
checking

(ECF No. 34 ¶ 8).

accounts

with

the

two

check

According to Plaintiff, “[he]

made several efforts to find out from Defendant the reasons for
not crediting Plaintiff’s checking accounts with the two check
deposits.
(ECF

No.

Defendant failed to provide any rational reason.”
34

¶

9).

Plaintiff’s

Account

Statement,

however,

reflects that Plaintiff’s payment of $506.52 was applied to the
Line of Credit balance on October 19, leaving Plaintiff with a
$0.00 balance and $500.00 of available credit.
at

2,

4).

The

same

Account

Statement

indirectly Plaintiff’s payment of $70.39.

(ECF No. 48-5,

appears

to

reflect

Included on a list of

transactions concerning the Account is a customer deposit of
$80.39 on October 19.

According to Defendant, the customer

deposit constitutes Plaintiff’s $70.39 payment and an overdraft
fee reversal.

(ECF Nos. 55, at 6; 48-5, at 6).

The Line of Credit continued to reflect a $0.00 balance the
following month.

(ECF No. 48-6, at 2, 4).
2

In November 2011,

the Line of Credit was closed, and the corresponding Account
Statement includes no information concerning the Line of Credit.
(See

ECF No. 48-7, at 2).

Plaintiff subsequently contacted

Defendant to reopen the Line of Credit, and Defendant reopened
the Line of Credit on or about December 21.
3; 48-8, at 2).

(ECF Nos. 49, at 2-

Plaintiff used the Line of Credit and the

overdraft protection it provided for the Account.

In February

and March 2012, Plaintiff used $500.00 – all of his available
credit.

(ECF

transferred

No.

48-1,

$200.00

from

overdraft on the Account.

at

3).

the

On

Line

February

of

16,

Credit

(ECF No. 48-9, at 4).

to

Plaintiff
cover

an

He transferred

an additional $100.00 into the Account on February 27, February
28, and March 5.

(ECF No. 48-10, at 4).

Plaintiff failed to

make any payment toward the Line of Credit after October 19,
2011.

(ECF No. 48-1, at 4 (citing ECF No. 48-3 ¶ 11)).
Defendant’s

during

March

representatives

and

April

communicated

2012

seeking

outstanding balance of the Line of Credit.
4-5).

Plaintiff

failed

to

make

any

with

payment

Plaintiff

toward

the

(See ECF No. 49, at

payment.

On

April

9,

Defendant sent Plaintiff a letter informing him that his Line of
Credit “has been BLOCKED against future advance activity, due to
the following principal reason: Delinquency.”
at

2).

Defendant’s

representatives

with Plaintiff and seek payment.
3

continued

(ECF No. 48-11,
to

communicate

(See ECF No. 49, at 5-11).

On

June 23, Defendant’s representative advised Plaintiff that the
Line of Credit “would be charged off (i.e., cancelled and his
debt written off) if he failed to pay by the following month.”
(ECF No. 48-1, at 4 (citing ECF No. 49, at 11)).

On or about

August 2, Defendant charged off the Line of Credit and made no
further attempts to contact Plaintiff.
at 14)).
file

a

(Id. (citing ECF No. 49,

Plaintiff alleges that “Defendant then proceeded to
false

and

derogatory

report

on

[f]ile with the three [c]redit [b]ureaus.
only

false,

it

was

malicious

since

Plaintiff’s

The report was not

Defendant

reported

outstanding balance of $1244.00 instead of $570.39.”
34

¶

12).

According

to

Plaintiff,

he

[c]redit

an

(ECF No.

“disputed

the

false

entries on Plaintiff’s [c]redit [f]ile by Defendant with the
[c]redit

[b]ureaus.”

(Id.

¶

13).

Furthermore,

Plaintiff

contends that “[f]rom late 2011 through early 2013, Defendant
placed a constant barrage of harassing telephone calls telephone
calls to Plaintiff demanding the payment of the balance of the
Line of Credit.”
B.

(Id. ¶ 14).

Procedural History

Plaintiff, proceeding pro se, first sued Defendant in this
court on March 7, 2013.

See Awah v. Capital One Bank, Case No.

13-CV-00706 (D.Md. 2013).

Plaintiff’s motion to dismiss his

complaint

voluntarily

without

September

19,

2013.

and

Plaintiff,
4

prejudice
again

was

granted

proceeding

pro

on
se,

commenced this action in the District Court of Maryland for
Prince George’s County by filing a complaint against Defendant
on February 11, 2014.

(ECF No. 2).

Defendant removed the

action to this court on April 16, 2014, citing federal question
jurisdiction
Plaintiff’s

as

the

complaint

jurisdictional
alleged

basis.

violations

(ECF

of

the

No.
Fair

1).
Debt

Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq.,
because

Defendant

allegedly

Plaintiff’s credit file.”

“filed

a

derogatory

report

on

(ECF No. 2, at 1).

By memorandum opinion and order on January 22, 2015, the
court adjudicated Plaintiff’s motion to remand, motion for leave
to file an amended complaint, and Defendant’s motion to dismiss.
(ECF

Nos.

removal,
action

19;

20).

The

Plaintiff’s

was

premised

court

complaint
on

noted

that,

expressly

alleged

the

indicated

violations

federal statute, and thus removal was proper.
6).

at

of

the

time
that

of
his

FDCPA,

a

(ECF No. 19, at

Following removal, Plaintiff sought to amend his complaint,

indicating that he no longer asserted claims under the FDCPA,
instead

opting

to

proceed

under

the

Maryland

Consumer

Debt

Collection Act (“MCDCA”), Md. Code Ann., Com. Law § 14–201 et
seq.

(ECF No. 16).

The court permitted Plaintiff to file an

amended complaint and observed: “If the new complaint does not
state a federal cause of action and Plaintiff’s only viable
claims pertain to Defendant’s methods of collection under MCDCA,
5

then the court may exercise its discretion and remand the case
to state court.”

(ECF No. 19, at 7-8 (emphasis added)).

On February 9, 2015, Plaintiff filed an amended complaint,
asserting violations of the MCDCA and requesting actual damages
in the amount of $100,000 and $200,000 in punitive damages.
(ECF

No.

21).

February 27.
order

on

Defendant

answered

(ECF No. 22).

March

2,

the

amended

complaint

The court entered a scheduling

implicitly

deciding

supplemental state law claims.

not

to

(ECF No. 24).

remand

Defendant did not oppose the motion.

the

On March 18,

Plaintiff again sought leave to amend his complaint.
30).

on

(ECF No.

The court issued an

order on April 6, allowing Plaintiff to file a second amended
complaint.

(ECF No. 31).

Plaintiff filed the second amended

complaint, adding claims against Defendant in Count II under the
Maryland Consumer Protection Act (“MCPA”), Md. Code Ann., Com.
Law § 13-301 et seq.
alia,

“compensatory

determined

at

(ECF No. 34).
and

trial.”

punitive
(Id.

at

Plaintiff demands, inter

relief

in

4).

an

amount

Shortly

to

be

thereafter,

Plaintiff again moved to remand the action to state court (ECF
No.

36).

The

determining

that

court

denied

“[t]here

Plaintiff’s

is

no

motion

question

that

to
the

remand,
court

maintains subject matter jurisdiction over the claims and the
only issue is whether it should exercise its discretion and
remand.

Here, a scheduling order has already been issued and
6

the parties are well into discovery.”

(ECF No. 42, at 5-6).

Accordingly, the court chose not to remand the action to state
court.
Defendant filed a partial motion to dismiss Count II of the
second amended complaint for failure to state a claim.
32).

Plaintiff

responded

in

opposition

Defendant replied (ECF No. 37).

(ECF

(ECF No.

No.

35),

and

On June 26, Plaintiff filed a

motion for an extension of time to file a status report (ECF No.
44), which Defendant opposed (ECF No. 46).

(ECF No. 45).1

filed a status report on July 8.
for

summary

complaint.
Roseboro

judgment
(ECF

notice,

on

No.

all

48).

which

Plaintiff, however,

claims

in

Plaintiff

advised

him

of

Defendant moved

the

second

amended

was

provided

with

the

pendency

of

a

the

summary judgment motion and his entitlement to respond within 17
days.

(ECF No. 50); see Roseboro v. Garrison, 528 F.2d 309, 310

(4th Cir. 1975) (holding that pro se plaintiffs should be advised
of

their

summary

right

to

judgment).

file

responsive

Plaintiff

material

responded

Defendant replied (ECF No. 55).

1

to

(ECF

a
No.

motion

for

53),

and

Plaintiff filed a “motion on

Given that Plaintiff filed a status report soon after
moving for an extension, his pending motion for an extension of
time will be denied as moot.
7

remand” on September 29 (ECF No. 54), which Defendant opposed
(ECF No. 56).2
II.

Defendant’s Motion for Summary Judgment3
A.

Standard of Review

A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

250

(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
Summary judgment is inappropriate if any material factual issue
“may reasonably be resolved in favor of either party.”

Liberty

2

In his remand motion, Plaintiff informs the court that,
should Defendant prevail on its summary judgment motion, “then
Plaintiff will respectfully request the remand.” (ECF No 54, at
1). Defendant responded in opposition “[o]ut of an abundance of
caution.”
(ECF No. 56, at 1).
Prior court opinions have
addressed the propriety of removal (ECF No. 19) and denied
Plaintiff’s previous motion to remand (ECF No. 42).
To
reiterate, “[t]here is no question that the court maintains
subject matter jurisdiction over the claims and the only issue
is whether it should exercise its discretion and remand.” (ECF
No. 42, at 5). Here, discovery has concluded and a dispositive
motion is pending.
Accordingly, insofar as Plaintiff’s motion
is construed as a pending motion to remand, it will be denied.
This court retains jurisdiction over the case and will consider
Defendant’s summary judgment motion.
3

Defendant’s motion for summary judgment is fully briefed.
(ECF Nos. 48; 53; 55). Accordingly, Defendant’s partial motion
to dismiss (ECF No. 32) will be denied as moot, and the court
will consider the substantive legal issues addressed on summary
judgment.
8

Lobby, 477 U.S. at 250; JKC Holding Co. LLC v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
The moving party bears the burden of showing that there is
no genuine dispute as to any material fact.

However, no genuine

issue of material fact exists if the nonmoving party fails to
make a sufficient showing on an essential element of his or her
case as to which he or she would have the burden of proof.
Celotex, 477 U.S. at 322–23.

Therefore, on those issues for

which the nonmoving party has the burden of proof, it is his or
her responsibility to confront the summary judgment motion with
an “affidavit or other evidentiary showing” demonstrating that
there is a genuine issue for trial.

See Ross v. Early, 899

F.Supp.2d 415, 420 (D.Md. 2012), aff'd, 746 F.3d 546 (4th Cir.
2014).

“A mere scintilla of proof . . . will not suffice to

prevent summary judgment.”
(4th Cir. 2003).
significantly

Peters v. Jenney, 327 F.3d 307, 314

“If the evidence is merely colorable, or is not

probative,

summary

judgment

may

be

Liberty Lobby, 477 U.S. at 249–50 (citations omitted).
pro

se

litigants

are

to

be

standards apply to everyone.

given

some

latitude,

granted.”
Although
the

above

Thus, as courts have recognized

repeatedly, even a pro se party may not avoid summary judgment
by relying on bald assertions and speculative arguments.

See

Smith v. Vilsack, 832 F.Supp.2d 573, 580 (D.Md. 2011) (citing
cases).
9

B.

Analysis

1.

MCDCA (Count I)

Plaintiff asserts an MCDCA claim against Defendant in Count
I of the second amended complaint.
“Defendant’s

relentless

and

According to Plaintiff,

unlawful

conduct

in

harassing,

abusing, coercing and oppressing [Plaintiff] to pay off a nonexistent debt through numerous telephone calls over a period of
more than a year was in violation of the MCDCA.”
15).

(ECF No. 34 ¶

Plaintiff contends that he “advised Defendant on numerous

occasions

to

put

a

stop

to

the

persistent

and

harassing

telephone calls, imploring Defendant to verify the retirement of
the debt from the records.
and kept calling.”

Defendant ignored Plaintiff’s advice

(Id. ¶ 17).

Plaintiff alleges that he has

suffered mental anguish as the direct and proximate result of
Defendant’s actions.

(Id. ¶¶ 18-20).

Defendant argues that

“the uncontroverted facts establish that Plaintiff was indebted
to [Defendant] under the Line of Credit, and that [Defendant]
was therefore within its rights to seek payment.”
1, at 8-9).

(ECF No. 48-

Furthermore, Defendant contends that “[Defendant’s]

communications

to

Plaintiff

were

limited,

professional, and complied with the MCDCA.”

reasonable,

(Id. at 10).

The MCDCA contains multiple provisions “prohibit[ing] debt
collectors from utilizing threatening or underhanded methods in
collecting or attempting to collect a delinquent debt.”
10

Stovall

v. SunTrust Mortgage, Inc., No. RDB–10–2836, 2011 WL 4402680, at
*9 (D.Md. Sept. 20, 2011).

Pertinently, the statute proscribes

debt collectors from “[c]ommunicat[ing] 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.”

Md. Code Ann., Com. Law § 14-202(6).

Nor

may debt collectors “[u]se obscene or grossly abusive language
in communicating with the debtor or a person related to him.”
Id. § 14-202(7).
attempting
engage

in

to

The MCDCA also provides that, in collecting or

collect

an

various

alleged

debt,

activities,

a

collector

including

may

not

“claim[ing],

attempt[ing], or threaten[ing] to enforce a right with knowledge
that the right does not exist.”

Id. § 14–202(8).

To succeed

under § 14–202(8), Plaintiff must satisfy two elements: (1) that
Defendant did not possess the right to collect the amount of
debt sought; and (2) that Defendant attempted to collect the
debt knowing that it lacked the right to do so.
McCabe,

Weisberg,

&

Conway,

LLC,

3845833, at *6 (D.Md. Aug. 4, 2014).
a

[§

14–202(8)

claim]

is

to

No.

See Lewis v.

DKC-13–1561,

2014

WL

“The key to prevailing on

demonstrate

that

the

defendant

‘acted with knowledge as to the invalidity of the debt.’”

Pugh

v. Corelogic Credco, LLC, No. DKC-13–1602, 2013 WL 5655705, at
*4 (D.Md. Oct. 16, 2013) (emphasis in original) (quoting Stewart
v. Bierman, 859 F.Supp.2d 754, 769 (D.Md. 2012)).
11

Judge Williams’s analysis is instructive:
The MCDCA, and in particular § 14–202, is
meant to proscribe certain methods of debt
collection and is not a mechanism for
attacking the validity of the debt itself.
The Act proscribes certain conduct, (1)
through (9), by a collector in “collecting
or attempting to collect an alleged debt . .
. .”
Md. Code Ann., Com. Law § 14–202
(emphasis added).
In other words, the
[MCDCA] focuses on the conduct of the debt
collector in attempting to collect on the
debt, whether or not the debt itself is
valid.
Plaintiff contends that she is
entitled to relief under paragraph (8) of
the provision based on Defendants’ knowledge
that the underlying debt did not exist.
Paragraph (8) provides that a collector, in
attempting to collect an alleged debt, may
not
“[c]laim,
attempt,
or
threaten
to
enforce a right with knowledge that the
right does not exist.”
Id. § 14–202(8).
Section [] 14–202(8) only makes grammatical
sense if the underlying debt, expressly
defined to include an alleged debt, is
assumed
to
exist,
and
the
specific
prohibitions are interpreted as proscribing
certain methods of debt collection rather
than the debt itself.
Fontell

v.

Hassett,

870

(emphases in original).

F.Supp.2d

395,

405-06

(D.Md.

2012)

Here, Plaintiff adduces no evidence

that the debt was non-existent, or that Defendant had knowledge
of

the

same.

The

uncontroverted

evidence

establishes

that

Plaintiff owed an outstanding balance on the Line of Credit,
which was tied to the Account.

In February and March 2012,

Plaintiff drew upon the Line of Credit to transfer funds into
the Account.

(ECF Nos. 48-9, at 4; 48-10, at 4).

12

Although the

Line of Credit reflected a $0.00 balance as of October 25, 2011,
Plaintiff exhausted his credit limit of $500.00 in March 2012,
and the Line of Credit became delinquent.

Plaintiff has failed

to contradict the evidence of his outstanding debt.

Nor has he

supplied evidence that Defendant acted with knowledge that the
debt was invalid or that it lacked the right to collect it.
Moreover, by asserting that Defendant harassed him in pursuit of
a

non-existent

debt,

Plaintiff

validity of the debt owed.

implicitly

challenges

the

He argues that “Plaintiff did not

owe $1,244.00 to Defendant, an amount Defendant was attempting
to collect.”

(ECF No. 53, at 12).

Plaintiff, however, cannot

challenge the validity of the underlying debt under the MCDCA.
Accordingly, insofar as Plaintiff contests the legitimacy of the
outstanding balance on the Line of Credit, his claim fails.
Defendant

also

argues

that

its

communications

with

Plaintiff were reasonable under the MCDCA, and that Plaintiff
has

not

produced

any

evidence

to

the

contrary.

Plaintiff

contends that Defendant violated § 14-202(6) and § 14-202(7) as
a

result

of

Defendant’s

“two[-]year-long

telephone

communications with Plaintiff at unusual hours or in a manner as
reasonably can be expected to harass or abuse Plaintiff.”

(ECF

No. 53, at 13).

Plaintiff’s opposition to summary judgment does

not

affidavit

include

an

or

declaration

executed

by

him

to

substantiate the allegations of the second amended complaint.
13

Rather,

in

support

affidavits

from

a

of

his

claim,
and

relative

Plaintiff
friend,

a

offers

as

well

psychological profile created by a clinical psychologist.
Nos. 53-9; 53-10; 53-11).

sworn
as

a

(ECF

Plaintiff failed to identify each of

the three individuals during discovery, listing only “Abigail
Osei” as a potential witness or expert witness at trial.

(ECF

No. 48-12, at 2, 4).
Plaintiff’s

attached

exhibits

were

not

produced

during

discovery, even though a request for production of documents and
potential witnesses had been propounded to him.
Under

the

Federal

Rules

of

Civil

Procedure,

(See id.).
parties

must

disclose, “without awaiting a discovery request, . . . the name
. . . of each individual likely to have discoverable information
. . . that the disclosing party may use to support its claims.”
Fed.R.Civ.P. 26(a)(1)(A)(i).

“The purpose of Rule 26(a) is to

allow the parties to adequately prepare their cases for trial
and to avoid unfair surprise.”
Servs.,

Inc.,

omitted).

763

F.3d

385,

Russell v. Absolute Collection
396

(4th

Cir.

2014)

(citation

“If a party fails to . . . identify a witness as

required by Rule 26(a) or (e), the party is not allowed to use
that . . . witness to supply evidence on a motion, . . . unless
the

failure

Fed.R.Civ.P.

was

substantially

37(c)(1).

Here,

justified

Plaintiff

is

or
not

is

harmless.”

substantially

justified in relying on these individuals’ sworn testimony for
14

the first time in his opposition to summary judgment, having
withheld their identities during discovery without explanation.
As a result, Defendant has been deprived of the opportunity to
depose

the

affiants

underlying facts.

and

evaluate

their

recollection

of

the

In these circumstances, the United States

Court of Appeals for the Fourth Circuit grants district courts
“particularly wide latitude . . . to issue sanctions under Rule
37(c)(1).”

Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278-

79 (4th Cir. 2005) (noting that a “party that fails to provide
[Rule 26] disclosures unfairly inhibits its opponent’s ability
to

properly

prepare,

unnecessarily

prolongs

litigation,

undermines the district court’s management of the case”).
the

appropriate

sanction

is

to

strike

the

and

Here,

affidavits

and

“exhibits that [Plaintiff] attached to [his] summary judgment
opposition
discovery.”

.

.

.

because

they

were

not

produced

during

Blankson-Arkoful v. Sunrise Senior Living Servs.,

Inc., No. JFM-09-2291, 2010 WL 2719877, at *1 (D.Md. July 8,
2010) (citing Blundell v. Wake Forest Univ. Baptist Med. Ctr.,
No. 1:03CV998, 2006 WL 694630, at *1 (M.D.N.C. Mar. 15, 2006)),
aff’d sub nom. Blankson-Arkoful v. Sunrise Sr. Living Servs.,
Inc., 449 F.App’x 263 (4th Cir. 2011).
Aside from the stricken affidavits, Plaintiff adduces no
evidence to support his MCDCA claim or create a genuine issue of
material

fact.

In

contrast,

Defendant
15

provides

a

database

report documenting collection history and communications between
Plaintiff

and

Defendant’s

representatives.

The

document

contains 151 entries, which include notations of “[Defendant’s]
employees

reviewing

the

[A]ccount,

working

with

Plaintiff

to

reopen the [L]ine of [C]redit before it became delinquent, and
other

non-call

administrative

notes.”

(ECF

No.

55,

at

9).

According to Defendant, an examination of the collection history
report reveals that Defendant’s representatives called Plaintiff
approximately 64 times between December 2011 and August 2012,
and there is no evidence that these calls were placed at unusual
hours or in frequent succession.
contained

within

the

(Id.; see ECF No. 49).

collection

history

report

Notes

show

that

Defendant’s representatives contacted him about reopening his
Line

of

Credit

in

December

2011,

to

seek

updates

about

Plaintiff’s outstanding debt in the spring and summer 2012, and
to follow up when Plaintiff failed to return their calls.
No. 55, at 9).

(ECF

Furthermore, Plaintiff offers no evidence –

either his own or from Defendant’s collection history report to

support

his

contention

that

called him after August 2012.
there

is

no

evidence

that

Defendant’s

representatives

Throughout the communications,
Defendant’s

representatives

used

abusive, profane, or harassing language.
The

collection

objectionable

and

history

harassing

report
conduct
16

does

not

sufficient

to

evidence
support

finding that Defendant violated the MCDCA.

See Hamilton v. Ford

Motor Credit Co., 66 Md. App. 46, 67 (1986) (denying summary
judgment when the debt collectors called the debtor “several
times, despite protestations that [she] was unable to pay the
debt, . . . that her husband was ill and the telephone calls
were

disturbing;

they

called

despite

[her]

requests

calling; and they called at least once late at night”).

to

stop

In the

analogous FDCPA context, whether there is actionable harassment
or annoyance turns on the volume and pattern of calls placed.4
Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F.Supp.2d 492,
505 (D.Md. 2004); see Beeders v. Gulf Coast Collection Bureau,
796 F.Supp.2d 1335, 1338 (M.D.Fla.) (granting the defendant’s
summary judgment motion when the plaintiff alleged that 40 calls
were made over the course of five months because the “calls did
not constitute ‘egregious conduct’ meant to harass, annoy, or
abuse the Plaintiff”),
Collection
Arteaga

v.

Bureau,
Asset

aff’d sub nom. Beeders v. Gulf Coast

Inc.,

432

Acceptance,

F.App’x
LLC,

733

918

(11th

F.Supp.2d

Cir.

2011);

1218,

1229

(E.D.Cal. 2010) (noting that “daily” or “near daily” phone calls
fail to raise an issue of fact for a jury to determine whether
the conduct violates the FDCPA).
4

“However, the case may be

The FDCPA prohibits debt collectors from “[c]ausing a
telephone to ring or engaging any person in telephone
conversation repeatedly or continuously with intent to annoy,
abuse, or harass any person at the called number.” 15 U.S.C. §
1692d(5).
17

that, based on the undisputed facts, a defendant’s conduct does
not, as a matter of law, violate the prohibition of harassing
and abusive collection tactics.”

Askew v. HRFC, LLC, No. RDB-

12-3466, 2014 WL 1235922, at *10 (D.Md. Mar. 25, 2014) (citing
Mateti v. Activus Fin., LLC, No. DKC–08–0540, 2009 WL 2507423,
at *13 (D.Md. Aug 14, 2009)), aff’d in part, rev’d in part and
remanded, 810 F.3d 263 (4th Cir. 2016).
Absent additional evidence that the telephone calls were
placed “with the frequency, at the unusual hours, or in any
other manner as reasonably can be expected to abuse or harass
the debtor,” Defendant’s conduct did not rise to the level of
harassment required to find a violation of the MCDCA.
Ann., Com. Law § 14-202(6).

Md. Code

Moreover, Plaintiff’s conclusory

allegations that the calls continued into the early months of
2014 are insufficient to create a genuine issue of material
fact.

Accordingly, Plaintiff’s MCDCA claims cannot withstand

summary judgment review.

Defendant’s summary judgment motion on

will be granted, and judgment will be entered against Plaintiff
on Count I.
2.
In
asserts

MCPA (Count II)
Count
an

II

MCPA

of

the

claim

second
against

amended

complaint,

Defendant.

Plaintiff

According

to

Plaintiff, Defendant “file[d] a false and derogatory report on
Plaintiff’s [c]redit [f]ile with the three [c]redit [b]ureaus.
18

The report was not only false, it was malicious since Defendant
reported an outstanding balance of $1244.00 instead of $570.39.
Plaintiff

disputed

the

false

entries

on

Plaintiff’s

[f]ile . . . with the [c]redit [b]ureaus.”
13).

[c]redit

(ECF No. 34 ¶¶ 12-

As a result, Plaintiff argues, “Defendant committed unfair

and/or deceptive acts and practices, including but not limited
to

fraudulent

suffered

in

(Id. ¶ 23).

transaction.”

concealment,

He contends generally that he “has

damages”

Defendant’s

as

actions.

the

connection

direct

(Id.

¶

and

24).

with

the

proximate
Defendant

consumer

result
argues

of
that

Plaintiff has failed to produce any evidence in support of his
MCPA claim.
that

(ECF No. 48-1, at 13).

Plaintiff’s

MCPA

claim

Moreover, Defendant asserts

concerning

alleged

inaccurate

reporting to credit agencies is preempted by federal law.

(Id.

at 15).
The MCPA prohibits commercial entities from engaging in any
“unfair or deceptive trade practice” in “[t]he collection of
consumer debts.”

Md. Code Ann., Com. Law § 13–303(5).

To

prevail under the MCPA, Plaintiff must establish: “(1) an unfair
or deceptive practice or misrepresentation that (2) is relied
upon,

and

(3)

causes

[him]

actual

injury.”

Bierman,

859

F.Supp.2d at 768 (citing Lloyd v. Gen. Motors Corp., 397 Md.
108, 143 (2007)).
“unfair

or

Plaintiff alleges that Defendant engaged in

deceptive”

trade

practices
19

under

the

MCPA,

which

include “false . . . or misleading oral or written statement[s]
. . . or other representations . . . [that have] the capacity,
tendency, or effect of deceiving or misleading consumers.”
Code

Ann.,

generally
state

a

Com.

that

Law

13–301(1).5

§

Defendant

material

fact

violated

if

the

Plaintiff

§

13-301(3)

failure

also
by

deceives

alleges

failing

or

Md.

tends

to
to

deceive, and § 13-301(9) by engaging in deception, fraud, false
pretense,

misrepresentation,

and

knowing

concealment

and

omission of material facts with the intent that Plaintiff relied
upon

the

same

in

consumer services.

connection

with

financial

transactions

of

(ECF No. 34 ¶ 23(b)-(c)).

Here, Plaintiff again fails to forecast evidence to support
his claims.

Asserting a violation of § 13-301(1), Plaintiff

alleges vaguely that Defendant made “false and misleading oral
and written statements and other representations which had the
capacity,

tendency,

Plaintiff.”

(ECF

or
No.

effect
34

¶

of

deceiving

23(a)).

or

misleading

Plaintiff’s

[]

allegation

recites formulaically the statutory language of § 13-301(1) and
appears

to

identify

Defendant’s

unlawful misrepresentations.

purported

credit

reports

as

The remaining allegations in Count

5

The MCPA establishes that, by definition, the violation of
several other enumerated Maryland statutes, including the MCDCA,
constitutes unfair or deceptive trade practices proscribed by
the MCPA. See Md. Code Ann., Com. Law § 13–301(14) (enumerating
incorporated statutes). Plaintiff does not prevail on his MCDCA
violation; thus, an MCPA claim premised on Defendant’s violation
of the MCDCA is not viable.
20

II similarly mirror the statutory language of § 13-301(3) and §
13-301(9).
judgment,

(Id. ¶ 23(b)-(c)).
Plaintiff

argues

In his opposition to summary

that

Defendant

violated

the

MCPA

“[b]y filing a false entry on Plaintiff’s credit file, knowingly
maintaining

false

banking

records

for

Plaintiff

attempting to collect on a non-existent debt.”

and

by

(ECF No. 53, at

17).

He concludes that his credit report “strongly demonstrates

that

Defendant[’s]

$1,244.00

on

incorrect.”
establishes
Defendant

claim

Plaintiff’s
(Id.

–

that

at

let

misled

Line

16).

alone

Plaintiff
of

Plaintiff

inaccurate banking records.

Credit

However,

creates
by

a

had

a
was

nothing

dispute

balance

in

of

manipulating

manifestly
the

fact

or

of

record
–

that

maintaining

Instead, the documentary evidence

produced by Defendant shows that Plaintiff’s payment in October
2011 was applied to the Line of Credit, resulting in a $0.00
balance.

The Line of Credit was closed and later reopened at

Plaintiff’s request.

Plaintiff then exhausted his credit limit

of $500.00 in March 2012 after drawing upon the Line of Credit
to transfer funds into the Account.
10, at 4).

(ECF Nos. 48-9, at 4; 48-

The Line of Credit became delinquent and was charged

off in August 2012.

(ECF No. 49, at 14).

Plaintiff has failed

to contradict the evidence of his outstanding debt and establish
that Defendant’s banking records are inaccurate.

21

His allegation

that Defendant “manipulate[d] [the Account] and banking records”
simply finds no support in the record.

(ECF No. 53, at 17).6

Furthermore, insofar as Plaintiff’s MCPA claim is based on
Defendant’s purported false reporting to the credit agencies, it
is preempted.

According to Plaintiff, “Defendant was collecting

on a balance in the amount of $1,244.00 and . . . reported the
debt

to

the

[c]redit

[b]ureaus.”

(Id.

at

16).

Plaintiff

asserts that “[t]he false report on [his] [credit] history has
been

report[ed]

for

the

past

three

years,

and

in

spite

of

Plaintiff’s numerous attempts to get Defendant to rectify the
false reporting.”

(Id. at 18).

Defendant contends that to the

extent that Plaintiff asserts a claim under the MCPA for false
reporting to credit agencies, such a claim is preempted by the
Fair Credit Reporting Act (“FCRA”), 15 U.S.C.A. § 1681 et seq.
(ECF

No.

48-1,

1681t(b)(1)(F)

and

at

15-18).

According

1681s–2(a)(1)(A)

of

the

to

Defendant,

FCRA

preempt

§§
any

state law claims under the MCPA related to the provision of

6

Moreover, Plaintiff offers no evidence that Defendant
reported a debt of $1,244.00. As Defendant contends, “Plaintiff
makes previously unalleged statements that [Defendant] somehow
demanded payment from him in the amount of $1,244.00 based on
the [TransUnion] [c]redit [r]eport” supplied by Plaintiff. (ECF
No. 55, at 7).
The sole reference in the record to a balance
$1,244.00 is in Plaintiff’s credit report, a document maintained
by TransUnion, not Defendant.
(ECF No. 55, at 7; see ECF No.
53-8, at 2).
22

credit information to consumer reporting agencies.7

The FCRA

provides that “[n]o requirement or prohibition may be imposed
under the laws of any State . . . [w]ith respect to any subject
matter regulated under . . . [§] 1681s–2 of this title, relating
to the responsibilities of persons who furnish information to
consumer

reporting

agencies.”

15

U.S.C.

§

1681t(b)(1)(F).

Accordingly:
[S]ection
1681t(b)(1)(F)
preempts
state
statutory claims that are based on the
responsibilities of those who report credit
information to [credit reporting agencies
(“CRAs”)].
See 15 U.S.C. § 1681s–2(a)[]
(encompassing the “[d]uty of furnishers of
information to provide accurate information”
which includes correcting any errors in
reporting, and the duties of furnishers of
information “[a]fter receiving notice . . .
of a dispute with regard to the completeness
or accuracy of any information provided by a
person to a consumer reporting agency,”
which includes conducting an investigation
into the dispute and correcting any errors
discovered with the CRAs).
Davenport v. Sallie Mae, Inc., No. PJM-12-1475, 2013 WL 4010983,
at *5 (D.Md. Aug. 2, 2013).
clear

that

related

to

§

“Congress’s intent in § 1681t(b) is

1681s–2(a)(1)(A)

such

knowing

preempts

disclosures.”

7

any

state
Alston

law
v.

claims
Equifax

Section 1681h(e) was intended to govern preemption of
common-law claims while § 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.”
Here, Plaintiff does not
assert any common law claims.
23

Information

Services,

LLC,

et

al.,

No.

580148, at *5 (D.Md. Feb. 11, 2014).

GLR–13–934,

2014

WL

Here, Plaintiff cannot

establish a claim under the MCPA insofar as it is premised on
Defendant’s

alleged

false

reporting

to

a

consumer

reporting

agency because his claim falls squarely within § 1681t(b)(1)(F)
and is preempted by the FCRA.

Count II of the second amended

complaint “alleges a willful breach of the responsibilities and
duties contained in § 1681s-2 and ‘runs into the teeth of the
FCRA preemption provision.’”

Davenport, 2013 WL 4010983, at *5

(quoting Ross v. F.D.I.C., 625 F.3d 808, 813 (4th Cir. 2010))
(dismissing as preempted the plaintiff’s MCDCA and MCPA claims
premised

on

the

defendant’s

reporting

of

inaccurate

information).
Assuming

arguendo

that

Plaintiff

asserts

an

FCRA

claim

against Defendant, it cannot withstand summary judgment review.8
The FCRA imposes duties on “furnishers of information” to credit
reporting agencies.

15 U.S.C. § 1681s–2.

The “FCRA explicitly

bars suits for violations of § 1681–2(a), but consumers can
still

bring

private

suits

for

violations

of

§

1681s–2(b).”

Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142, 149
(4th Cir. 2008) (citing § 1681s–2(c)); see, e.g., Beattie v.
Nations Credit Fin. Servs. Corp., 69 F.App’x 585, 589 (4th Cir.
8

In his opposition to summary judgment, however, Plaintiff
affirms that he does not assert a federal claim under the FCRA.
(See ECF No. 53, at 19).
24

2003) (“[T]he FCRA does not provide the [plaintiffs] with a
private cause of action [for a violation of § 1681s–2(a)(1)(A)].
More

specifically,

this

particular

statutory

language

may

be

enforced only by federal and state agencies and officials.”).
[T]o bring a claim under § 1681s–2(b), a
plaintiff must establish three elements: (1)
that he or she notified the consumer
reporting
agency
of
the
disputed
information, (2) that the consumer reporting
agency notified the defendant furnisher of
the dispute, and (3) that the furnisher then
failed
to
investigate
and
modify
the
accurate information.
Ausar–El

v.

Barclay

Bank

Delaware,

No.

PJM-12–0082,

2012

3137151, at *3 (D.Md. July 31, 2012) (citations omitted).
§

1681s–2(b),

it

would

not

suffice

for

Plaintiff

WL

Under

to

have

notified Defendant himself; rather, the notice must instead have
come from the consumer reporting agency.

Id. at *3 n.2.

Here,

Plaintiff has failed to produce evidence that he notified a
credit

reporting

agency

banking and credit records.

of

Defendant’s

alleged

inaccurate

Nor is there support in the record

to satisfy the other elements of a § 1681s–2(b) claim – that
Defendant

received

notification

of

a

dispute

from

a

credit

reporting agency and that Defendant failed to investigate such a
dispute.

See Akpan v. First Premier Bank, No. DKC-09–1120, 2010

WL 917886, at *3 (D.Md. Mar. 8, 2010) (dismissing the complaint
because the plaintiff failed to include allegations sufficient
to state a claim under 15 U.S.C. § 1681s–2(b)).
25

Accordingly,

even construing Count II to include an FCRA claim, it cannot
withstand summary judgment review.

Defendant is entitled to

summary judgment, and judgment will be entered against Plaintiff
on all claims in Count II.
III. Conclusion
For

the

foregoing

reasons,

summary judgment will be granted.
will

be

denied.

Defendant’s

the

Defendant’s

motion

for

Plaintiff’s motion to remand

partial

motion

to

dismiss

and

Plaintiff’s request for an enlargement of time to file a status
report will be denied as moot.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

26