Evans v. Beneficial Financial I, Inc. et al

Filing 39

MEMORANDUM OPINION (c/m to Plaintiff 12/14/15 sat). Signed by Judge Deborah K. Chasanow on 12/14/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
RONDA LYNNETTE SHORT EVANS
:
v.

:

Civil Action No. DKC 14-1994

:
THE FISHER LAW GROUP, PLLC,
et al.

:

MEMORANDUM OPINION
Presently pending and ready for review in this consumer
lending

case

are:

a

motion

for

summary

judgment

filed

by

Defendants Caliber Home Loans, Inc. and The Fisher Law Group,
PLLC (collectively, the “Defendants”) (ECF No. 34); and a crossmotion for summary judgment filed by Plaintiff Ronda Lynnette
Short Evans (“Plaintiff”) (ECF No. 36).

The relevant issues

have been briefed, and the court now rules, no hearing being
deemed necessary.
Defendants’

Local Rule 105.6.

motion

for

summary

For the following reasons,

judgment

will

be

granted

and

Plaintiff’s motion for summary judgment will be denied.
I.

Background
A.

Factual Background

On December 27, 2005, Plaintiff obtained a home mortgage
refinance

loan

from

Beneficial

Mortgage

Company

of

Maryland

(“Beneficial”), secured by a Deed of Trust against the property
located

at

Property”).

503

Cretia

Place,

Upper

Marlboro,

(See ECF Nos. 2-1; 20-2).

Maryland

(“the

Plaintiff defaulted on

the loan, and The Fisher Law Group, PLLC (“Fisher”) was retained
in October 2012 to foreclose on Plaintiff’s Deed of Trust.
No. 34-2 ¶ 4).

(ECF

On December 3, 2012, Fisher sent a letter to

Plaintiff providing her with a notice of intent to foreclose.
(ECF

No.

requesting

34-3).

Plaintiff

information

and

consumer protection laws.

sent

multiple

alleging

letters

various

(ECF No. 34-4).

to

Fisher

violations

of

On January 9, 2013,

Fisher responded and provided additional information verifying
the loan and the deed.

(ECF No. 34-5).

Over the course of the

following year, Plaintiff continued to send correspondence, and,
on

March

Plaintiff,

26,

2014,

Fisher

about her loan.

in

sent

response
another

to

letter

“several

letters”

confirming

from

information

(ECF Nos. 34-2 ¶ 8; 34-6).

On December 20, 2013, Beneficial sold Plaintiff’s loan to
LSF8 Master Participation Trust.

On January 9, 2014, Caliber

Home Loans, Inc. (“Caliber”) sent Plaintiff a “Notice of Sale of
Ownership of Mortgage Loan,” informing her that the loan was
sold to LSF8 Master Participation Trust and that Caliber was the
new

loan

servicer.

(ECF

No.

2-2).

On

January

16,

2014,

Beneficial mailed Plaintiff its own notice, instructing her to
send to Caliber all payments due on or after February 1, 2014.
(ECF

No.

2-5).

On

February

12,

Caliber

sent

a

letter

to

Plaintiff titled, “Important Information Regarding the Servicing
of Your Mortgage Loan.”

(ECF No. 2-6, at 1).
2

The letter

confirmed that the servicing of Plaintiff’s mortgage loan was
transferred

from

Beneficial

to

Caliber,

and

that

Plaintiff

should have begun sending mortgage loan payments to Caliber as
of February 1, 2014.

(Id. at 1-2).

On February 18, Caliber

sent a letter to Plaintiff informing her that as of February 13,
2014, VOLT 2013 NPL2 GROUP 3 (“Volt”) was the creditor of her
loan, and that she had an outstanding debt of $555,013.76 on her
mortgage.
B.

(ECF No. 2-7).
Procedural History

On May 7, 2014, Plaintiff filed a complaint in the District
Court

of

Defendants

Maryland
Fisher,

for

Prince

Caliber,

George’s

and

County,

Beneficial.

(ECF

Defendants timely removed the action to this court.
1).

naming
No.

as
2).

(ECF No.

On February 9, 2015, Plaintiff’s claims against Beneficial

(Counts I and II) were dismissed.

(ECF Nos. 31; 32).

The

remaining counts allege that Fisher and Caliber each violated
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §
1692

et seq. (Counts III and IV).

(ECF No. 2, ¶¶ 59-69).

Specifically, Plaintiff contends that Fisher violated § 1692g(a)
and Caliber violated § 1692e.
On April 8, 2015, Defendants Fisher and Caliber jointly
filed the pending motion for summary judgment.

(ECF No. 34).

Plaintiff filed the pending cross-motion for summary judgment
and a response in opposition.

(ECF No. 36).
3

Defendants replied

to Plaintiff’s motion.

(ECF No. 37).

Plaintiff did not file a

reply in support of her motion and the time to do so has passed.1
II.

Standard of Review
A court may enter summary judgment 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, 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.”

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.

Balt. 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,

1

On September 29, 2015, Plaintiff filed an “affidavit of
truth and facts.” (ECF No. 38). This filing was not timely and
is of questionable relevance to this case.
Accordingly, the
court will not consider the affidavit or the attached documents.
4

summary judgment may be granted.”
249–50 (citations omitted).
construe

the

facts

that

Liberty Lobby, 477 U.S. at

At the same time, the court must
are

presented

in

favorable to the party opposing the motion.

the

light

most

Scott v. Harris,

550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
“When

cross-motions

for

summary

judgment

are

before

a

court, the court examines each motion separately, employing the
familiar standard under Rule 56 of the Federal Rules of Civil
Procedure.”

Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d

351, 354 (4th Cir. 2011).

The court must deny both motions if it

finds there is a genuine dispute of material fact, “[b]ut if
there is no genuine issue and one or the other party is entitled
to prevail as a matter of law, the court will render judgment.”
10A Charles A. Wright, et al., Federal Practice & Procedure §
2720 (3d ed. 1998).
III. Analysis
A.

Section 1692g Claim Against Fisher (Count III)

Plaintiff alleges that Fisher violated § 1692g(a) “by not
naming

the

creditor

to

whom

the

debt

communication [Fisher sent to] Plaintiff.”

was

owed

any

(ECF No. 2 ¶ 61).

Section 1692g(a) requires that:
[w]ithin
five
days
after
the
initial
communication with a consumer in connection
with the collection of any debt, a debt
collector
shall,
unless
the
following
information is contained in the initial
5

in

communication or the consumer has paid the
debt, send the consumer a written notice
containing: (1) the amount of the debt; (2)
the name of the creditor to whom the debt is
owed; (3) a statement that unless the
consumer, within thirty days after receipt
of the notice, disputes the validity of the
debt, or any portion thereof, the debt will
be
assumed
to
be
valid
by
the
debt
collector; (4) a statement that if the
consumer notifies the debt collector in
writing within the thirty-day period that
the debt, or any portion thereof, is
disputed, the debt collector will obtain
verification of the debt or a copy of a
judgment against the consumer and a copy of
such verification or judgment will be mailed
to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s
written
request
within
the
thirty-day
period, the debt collector will provide the
consumer with the name and address of the
original creditor, if different from the
current creditor.
Plaintiff alleges that two communications from Fisher violated §
1692g(a).2
The first communication is a letter dated December 3, 2012,
notifying Plaintiff that Fisher had been retained to foreclose
on her property.

(ECF No. 34-3, at 2).

Defendants argue that

Plaintiff’s FDCPA claim as to this communication is barred by
the

relevant

one-year

statute

of

limitations.

15

U.S.C.

§

1692k(d) (allowing an action to be brought “within one year from
the date on which the violation occurs”).
2

Plaintiff counters

In support of her motion for summary judgment, Plaintiff
includes conclusory allegations that Fisher violated §§ 1692g(b)
and 1692e, but Plaintiff did not plead such violations and her
assertions are not supported by the record.
6

that Fisher is in continued violation of the FDCPA because it
has failed to rectify the alleged defect in its communication.
(ECF

No.

36-1,

at

6).

Plaintiff’s

argument

is

unavailing

because the FDCPA’s statute of limitations period begins “from
the date of the first violation, and subsequent violations of
the same type do not restart the limitations period.”

Bey v.

Shapiro Brown & Alt, LLP, 997 F.Supp.2d 310, 316 (D.Md. 2014)
(citations
Fontell

and

v.

internal

Hassett,

870

quotation

marks

F.Supp.2d

omitted);

395,

404

see

(D.Md.

also

2012);

Akalwadi v. Risk Mgmt. Alts., Inc., 336 F.Supp.2d 492, 500-01
(D.Md. 2004) (“Generally, the statute of limitations begins to
run when a communication violating the FDCPA is sent.”).

Here,

the alleged FDCPA violation was Fisher’s purported failure to
provide

the

required

information

December 3, 2012 communication.

within

five

days

of

its

Plaintiff filed her complaint

in state court on May 7, 2014, well more than one year later.
(See ECF No. 2, at 17).

Accordingly, Plaintiff’s FDCPA claim

against Fisher as to the December 3, 2012 communication is timebarred.
Plaintiff also asserts that Fisher violated § 1692g(a) by
failing

to

communication.

name

the

creditor

(ECF No. 2-6).

in

its

March

26,

2014

This communication cannot be the

basis of a § 1692g(a) claim because it was not the “‘initial
communication with a consumer in connection with the collection
7

of any debt.’”

Hart v. FCI Lender Servs., Inc., 797 F.3d 219,

228 (2d Cir. 2015) (emphasis in original) (quoting 15 U.S.C. §
1692g(a)).

Indeed, “there is only one claim and one recovery of

damages regardless of the number of collection communications
sent without complying with § 1692g.”
Fisher’s

March

26

communication

Id. (citation omitted).

clearly

was

not

the

initial

communication Fisher sent in connection with the collection of
Plaintiff’s

debt.

(See

ECF

Nos.

34-3;

34-5;

36-8).

Accordingly, Fisher’s March 26, 2014 letter did not violate §
1692g.
B.

Section 1692e Claim Against Caliber (Count IV)

Plaintiff alleges that Caliber violated § 1692e “when it
sent . . . letters naming two different creditors and account
numbers misrepresenting the legal status of an alleged debt; and
confusing the Plaintiff as to who the current creditor actually
is.”3

(ECF No. 2 ¶ 67).

Section 1692e forbids a debt collector

from using “any false, deceptive, or misleading representation
or means in connection with the collection of any debt.”

The

statute “provides a non-exhaustive list of prohibited conduct.”
United States v. Nat’l Fin. Servs., Inc., 98 F.3d 131, 135 (4th
Cir. 1996).

In relevant part, this list includes a prohibition

3

In support of her motion for summary judgment, Plaintiff
also briefly asserts that Caliber’s February 18, 2014 letter
violates § 1692g, but Plaintiff did not plead this claim and it
is not supported by the record.
8

on the “false representation of . . . the character, amount, or
legal status of any debt.”

15 U.S.C. § 1692e(2)(A).

Plaintiff

asserts that Caliber’s communications on January 9, February 12,
and February 18, 2014, which name two different creditors and
account numbers, violate § 1692e(2)(A) by misrepresenting the
legal status of her debt.

(ECF No. 2 ¶ 67).

Defendants contend

that §1692e does not apply because the communications were not
“in connection with the collection of any debt.”
at 9).

(ECF No. 34-1,

Furthermore, Defendants argue that the “letters are not

deceptive

or

misleading

in

any

way;

rather

they

informed

Plaintiff about the owner of her loan at two different points in
time.”

(Id. at 10).

Defendants first assert that § 1692e does not apply because
none of the communications were “an act to collect a debt.”
(ECF No. 37, at 11 (citing Chaudhry v. Gallerizzo, 174 F.3d 394,
410 (4th Cir. 1999)).
limited.

Defendants’ reading of the statute is too

First, Chaudhry is inapposite because it concerned

sections of the FDCPA that contain narrower language than §
1692e(2)(A),

the

provision

Plaintiff

Chaudhry, 174 F.3d at 407, 410.

asserts

here.

See

Moreover, the United States

Court of Appeals for the Fourth Circuit held, subsequent to
Chaudhry,

that

“to

be

actionable

under

[§

1692e],

a

debt

collector needs only to have used a prohibited practice ‘in
connection

with

the

collection
9

of

any

debt.’”

Powell

v.

Palisades Acquisition XVI, LLC, 782 F.3d 119, 124 (4th Cir. 2014)
(emphasis in original).

In Powell, the Fourth Circuit rejected

the district court’s reasoning that the FDCPA did not apply to
the filing of an assignment of judgment in a debt collection
action simply because the defendants still “had to take separate
action to collect any money” from the plaintiff.

Id. at 123.

Instead, the court looked at the factual context of the action
and determined that it was clearly made “in connection” with the
collection of the judgment debt.
Here,

a

close

look

at

Id. at 124-25.
the

factual

context

of

the

communications reveals that the January 9 letter was not sent in
connection with the collection of the debt and therefore cannot
be the basis for a violation of § 1692e(2)(A).

(ECF No. 2-2).

The January 9 letter was merely a notice of sale of ownership of
Plaintiff’s loan.

The communication did not advance Caliber’s

effort to collect the debt.

It did not include any information

about the amount currently due, and it did not request a payment
or any action by Plaintiff.

Rather, Caliber sent the letter to

alert Plaintiff to the fact that the loan had been sold and to
provide

updated

contact

information.

Accordingly,

Caliber’s

January 9 communication did not violate § 1692e(2)(A).
It is a more difficult question as to whether Caliber’s
February 12 and 18 communications were made in connection with
the

collection

of

a

debt.

These
10

two

letters

formally

established

Caliber’s

debt

collection

relationship

with

Plaintiff and provided detailed information about the debt and
payment instructions.

In addition, both communications stated,

“This is an attempt by a debt collector to collect a consumer
debt

and

purpose.”

any

information

obtained

(ECF Nos. 2-6; 2-7).

will

be

used

for

that

Although “the use of such a

disclaimer ‘does not automatically trigger the protections of
the FDCPA,’” Boosahda v. Providence Dane LLC, 462 F.App’x 331,
334

(4th

Cir.

2012),

such

a

statement

weighs

in

favor

of

a

determination that the communications were made in connection
with debt collection.
informational

in

collect a payment.

On the other hand, both letters were

nature,

and

neither

was

sent

explicitly

to

Ultimately, it is not necessary to determine

if the two February communications were made in connection with
the collection of debt because neither communication was false
or misleading under § 1692e(2)(A).
“Whether a communication is false, misleading, or deceptive
in violation of § 1692e is determined from the vantage of the
‘least

sophisticated

consumer.’

The

least-sophisticated

consumer test is an objective standard that evaluates § 1692e
claims based upon how the least sophisticated consumer would
interpret

the

allegedly

offensive

language.”

Russell

v.

Absolute Collection Servs., Inc., 763 F.3d 383, 394-95 (4th Cir.
2014) (quoting Nat’l Fin. Servs., Inc., 98 F.3d at 136).
11

“A

logical corollary of the least sophisticated consumer test is
that

false,

deceptive,

and

material to be actionable.”

misleading

statements

must

be

Powell, 782 F.3d at 126 (emphasis

in original) (citations omitted).
Here, there is nothing in Caliber’s letters that is false,
deceptive, or misleading.

First, Plaintiff asserts that she was

misled by the existence of two different account numbers, but
the letters clearly stated that one is the new “Caliber Account
Number” and the other is the “Prior Servicer Account Number.”
(ECF No. 2-6).

These account numbers are consistent with the

account numbers used in other communications.
2; 2-5; 34-6, at 3).

(See ECF Nos. 2-

In addition, Plaintiff contends that the

February 18, 2014 letter was false or misleading because it
named

a

different

creditor

than

earlier

communications,

but

nothing in the record indicates that the creditor was ever named
incorrectly or in a misleading manner.

Rather, the February 18

letter indicated that Volt was the creditor as of February 13,
2014.

(ECF No. 2-7).

Earlier communications indicated that

other creditors owned Plaintiff’s loan at earlier dates.
No. 2-2).

(ECF

Finally, Plaintiff contends that the letters were

false or misleading regarding Caliber’s status as servicer of
her loans.
letters,

(ECF No. 36-1, at 10-11).

however,

accurately

described

12

Both of the February
when

Caliber

began

servicing

loans.4

the

(ECF

Nos.

2-7

(noting

that

Caliber

“recently acquired the servicing” of the loans); 2-6, at 1 (“On
February

1,

2014,

the

servicing

of

your

mortgage

loan

transferred.”); see also ECF No. 2-5 (letter from Beneficial
noting

transfer

“effective

Caliber’s

February

regarding

the

account
payments.

12,

2014

servicing

numbers,

and

January

31,

letter

transfer,

provided

conveyed

included

the

(ECF No. 2-6, at 1-2).

2014”)).

new

Moreover,

clear

her

process

old

details
and

for

new

making

This information was in

accord with the most recent information Plaintiff received from
her old servicer regarding the transfer (ECF No. 2-5), and with
the information subsequently provided by Fisher at Plaintiff’s
request (ECF No. 34-6, at 3).

Accordingly, neither of Caliber’s

February communications was false, deceptive, or misleading in
violation of § 1692e.
IV.

Conclusion
For the foregoing reasons, Defendants’ motion for summary

judgment

will

be

granted

judgment will be denied.

and

Plaintiff’s

motion

for

summary

A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge

4

It appears that Caliber’s January 9, 2014 letter
incorrectly asserted that Caliber had already begun servicing
Plaintiff’s loans.
(ECF No. 2-2).
It is not necessary to
determine if this violates § 1692e because this communication
was not made in connection with the collection of a debt.
13