Alston v. Orion Portfolio Services, LLC et al

Filing 15

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 2/28/2017. (ah4s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JONATHAN ALSTON
Plaintiff, pro se
v.
ORION PORTFOLIO
SERVICES, LLC, et al.
Defendants

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Civil No. PJM 16-3697

MEMORANDUM OPINION
Pro se plaintiff Jonathan Alston1 has brought suit against Orion Portfolio Services, LLC
(“Orion”) and Trident Asset Management, LLC (“Trident”) (hereinafter, collectively
1

This is yet another purportedly pro se proceeding involving a plaintiff with the surname Alston. As with
the Plaintiffs in the nearly forty other suits brought by Alstons, Plaintiff allegedly resides at 10012
Cedarhollow Lane, Largo, MD 20774. Thomas J. Alston has been plaintiff in approximately eighteen
FCRA cases in this Court (8:11-cv-02292-RWT, 8:12-cv-00670-RWT, 8:12-cv-00721-RWT, 8:12-cv01708-AW, 8:12-cv-01819-AW, 8:12-cv-03589-AW, 8:12-cv-03671-AW, 8:12-cv-03745-AW, 8:13-cv01232-PWG, 8:13-cv-01226-PWG, 8:13-cv-01598-PJM, 8:13-cv-01704-RWT, 8:14-cv-03199-DKC,
8:15-cv-03099-TDC, 8:15-cv-03393-DKC, 8:16-cv-00491-GJH, 8:16-cv-00491-GJH, 8:16-cv-00608TDC). His mother Yvonne is the plaintiff in nine cases (8:12-cv-02270-AW, 8:12-cv-02711-DKC, 8:13cv-01012-RWT, 8:13-cv-01218-PWG, 8:13-cv-02388-DKC, 8:13-cv-02675-TDC, 8:14-cv-02987-PWG,
8:15-cv-03100-GJH, 8:16-cv-00491-GJH); his sister Candace in four cases (8:12-cv-02732-RWT, 8:12cv-03357-AW, 8:14-cv-00656-RWT, 8:16-cv-00491-GJH); his sister Kimberly Ann in one case (8:12-cv02533-RWT); and his brother Jonathan in four cases before this Court (8:12-cv-03294-DKC, 8:13-cv00913-DKC, 8:13-cv-02390-DKC, 8:15-cv-03099-TDC, 8:15-cv-03393-DKC). Nearly all the lawsuits
brought by “Alston” plaintiffs are against credit reporting agencies or other financial institutions.
All these suits appear to be linked to Thomas Alston, a non-attorney, who has not only been among the
named pro se plaintiffs but as well appears to have been the author-in-fact of several of these pro se
Alston-Plaintiff suits. Thomas Alston also appears to have been the author-in-fact of other suits,
ostensibly filed by pro se plaintiffs, seeking monetary compensation for trivial harms, such as the alleged
failure to promptly receive a mortgage note marked “paid” when in fact it had been paid in full. See e.g.,
Alston v. Wells Fargo Bank, N.A., 2016 WL 4158369 (D. Md. Aug. 5, 2016). As it has on prior occasions,
the Court takes judicial notice of Thomas Alston’s LinkedIn profile on the internet, in which he holds out
that
For the cost of a reasonably priced paralegal, you get the value of a high-caliber attorney.
Armed with a thorough understanding of the judicial system, great legal vision,
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“Defendants”), in connection with a debt he originally owed to Verizon Communications
(“Verizon”) for unreturned television equipment and associated fees. Alston claims that Orion,

specialized research skill, competitive spirit and writing and communication skills to
convey the foregoing, there is no legal task that I cannot accomplish with the utmost
competency. Extensive experience in drafting complaints, supporting and opposing
briefs, discovery documents and more. I have over 10 favorable court opinions from the
US District Court for Maryland and Circuit Court for Prince George's County to back up
my proclaimed competencies.
Thomas Alston, LinkedIn (Feb. 23, 2017, 3:24 PM), https://www.linkedin.com/in/doctormoney.
As in all cases involving pro se Alston plaintiffs, the Court has a number of serious concerns. Given the
extraordinary circumstances surrounding the suspiciously similar nature of the filings, the Court feels it
necessary to determine whether the present suit is being filed in good faith.. Accordingly, the Court
requires that Plaintiff shall file an Affidavit responding to the following questions, under oath, within 20
days:
1. Does Plaintiff actually reside at 10012 Cedarhollow Lane, Largo, MD 20774? If so, for how
long has he resided at that address? For how many days each week does Plaintiff sleep
overnight at this address? Plaintiff shall also list all other addresses where he has spent more
than three nights in any given week over the last 12 months.
2. To what extent has Thomas Alston in any way provided advice to Plaintiff in this case or as
to the filing of pro se cases against reporting agencies in general? Plaintiff must set forth the
names of every individual (including, but not limited to Thomas Alston) or entity that has
provided him with any advice, documents, or pleadings in connection with the present
lawsuit.
Why does the Court direct that this information be supplied? First, the Court wishes to verify the truth of
certain information in the pleadings. Specifically, the Court must determine the bona fides of the address
listed by Plaintiff, given that multiple pro se Alston plaintiffs have filed suits alleging residence at 10012
Cedarhollow Lane, Largo, MD 20774. Second, given the surname of Alston and non-attorney Thomas
Alston’s proclamations that he offers the “value of a high-caliber attorney” and that “there is no legal task
that [he] cannot accomplish with the upmost competency,” the answer to these questions, which must be
given under oath, may implicate the unauthorized practice of law by Thomas Alston. Third, many of the
claims being made in this suit are dubious. For example, Plaintiff alleges that he suffered “fear,
embarrassment, humiliation, frustration, anger, headaches, sleeplessness, severe emotional and mental
distress.” It is, however, doubtful that such claims in the context of the sort of debt collection practices
sued upon here allow for the recovery of emotional damage. See Robinson v. Equifax Info. Servs., LLC,
560 F.3d 235, 241 (4th Cir. 2009); Spokeo, Inc. v. Robins. 136 S. Ct. 1540 (2016).
The Court needs to be satisfied that the filing of this suit is sincere and not merely brought by Alston for
its nuisance value.
The fact of the matter is that the mere filing of law suits such as this imposes a significant burden on
Defendants, who are required to engage counsel to respond, which causes them to incur costs that
incentivize settlement of the suits before reaching the merits of the case.
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which allegedly purchased the debt from Verizon, and Trident, which allegedly sought to collect
the debt on behalf of Orion, purportedly attempted to collect the $1,390.81 debt to Verizon in
violation the Fair Debt Collection Practices Act (the “FDCPA”), 15 U.S.C. § 1692, et seq. Alston
further seeks class action certification in order to sue Defendants under the FDCPA. Finally, he
brings a claim against Defendants2 under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §
1681, et seq. as well as a claim for defamation.
Defendants have moved to dismiss both FDCPA claims.3 For the reasons that follow, the
Court will GRANT Defendants’ Motion to Dismiss for Failure to State A Claim, ECF No. 9, and
will DISMISS Alston’s FDCPA claims, Counts I and II, WITHOUT PREJUDICE.
I.

FACTUAL BACKGROUND

Alston states in his Complaint that he obtained his Trans Union credit report and
discovered a collection account being reported by Trident, which indicated that he owed $1,391
to Verizon for utility services. Compl. ¶¶ 5-5.4 On June 11, 2016, Alston says he disputed the
Trident collection account with Trans Union. Id. ¶ 9. The next day, Trans Union purportedly
issued its investigation results, stating that Trident had verified the collection with no changes to
how it was being reported, including no notation that the collection amount was disputed. Id. ¶
10.
On August 22, 2016, Alston purportedly contacted Trident by phone to dispute the debt.
Id. ¶ 11. He was told that Trident would send him a letter providing a breakdown of how the
$1,391 was calculated and advising him of his right to request validation and/or verification of

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Although Alston contends that Trident’s, and not Orion’s, actions violated FCRA and constituted
defamation, he asserts that “[u]nder the doctrine of respondeat superior, Orion is liable for each and every
alleged violation of Trident.”
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Defendants do not ask the Court to dismiss Count III (the FCRA claim) or Count IV (the defamation
claim) of Alston’s Complaint.
4
Alston’s Complaint has two paragraph 5’s.
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the debt. Id. ¶¶ 12-13. Alston was further purportedly told that Trident had not sent him a letter
since it acquired the Verizon debt because Trident’s policy was to contact debtors by phone, not
by mail, and Trident did not have Alston’s phone number on file. Id. ¶ 14.
Alston says he called Trident again on August 25, 2016. Id. ¶ 15. He was purportedly
advised that Orion had purchased the debt from Verizon and that Trident was collecting on
behalf of Orion. Id. ¶ 16. He was also purportedly told that the debt was considered disputed as
of August 22, 2016 and that Trident reported information regarding the debt to credit reporting
agencies (such as Trans Union) on the 23rd of every month. Id. ¶¶ 17-18.
On August 26, 2016, Alston received correspondence from Trident which informed him
of his rights to dispute the validity of the debt within 30 days of receiving the notice, but the
notice still requested that he send a $1,390.81 payment to Trident’s address. Id. ¶¶ 21-22. Either
during one of his alleged phone calls with Trident or in this letter, Alston was informed that the
$1,390.81 debt stemmed from unreturned Verizon FIOS TV equipment ($742.00) and past due
charges ($648.81). See Id. ¶ 28.
On August 29, 2016, Alston says he sent a dispute letter to Trans Union, challenging the
purported balance. Id. ¶ 25. He also says he sent a letter directly to Trident. Id. ¶ 26. The letters
purportedly disputed that Trident or Orion acquired the account from Verizon, that $1,390.81
was owed on the account, and that Alston owed $742.00 for FIOS TV equipment and $648.81
for past due charges. Id. ¶¶ 27-28. Even so, says Alston, Trident continued its debt collection
activity, reporting the debt to Trans Union prior to providing Alston with validation of the debt.
Id. ¶ 31.
According to Alston, on September 12, 2016, Trans Union issued its investigation results,
finding that Trident had again verified the collection, indicating that no changes would be made

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as to how the debt would be reported and containing no notation that the collection account was
disputed. Id. ¶ 32
Alston originally filed this Complaint in the Circuit Court for Prince George’s County,
ECF No. 2, but Defendants removed the case to this Court in a timely fashion. ECF No. 1.
Defendants have filed a Motion to Dismiss for Failure to State a Claim. ECF No. 9. Alston has
not responded.
II.

STANDARD OF REVIEW

A party may move for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6),
where a complaint fails to state facts sufficient to “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Whether a complaint adequately
states a claim for relief is normally judged under Federal Rule of Civil Procedure 8(a)(2), which
requires “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2); see Twombly, 550 U.S. at 555. A complaint must state “a plausible claim
for relief,” as “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).

A

plaintiff proceeding pro se is entitled to have his complaint construed liberally, but this
requirement “does not transform the court into an advocate.” United States v. Wilson, 699 F.3d
789, 797 (4th Cir. 2012). While the facts alleged in Alston’s complaint must be taken as true,
bare conclusory statements “are not entitled to the assumption of truth.” Aziz v. Alcolac, Inc.,
658 F.3d 388, 391 (4th Cir. 2011) (quoting Iqbal, 556 U.S. at 679)) (internal quotation marks
omitted).
III.

ANALYSIS

The Court considers the claims in Counts I and II against Defendants in turn:

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A. Count I
In Count I, Alston alleges that Defendants violated multiple provisions of the FDCPA, 15
U.S.C. § 1692: (e)(2) and (10) by attempting to collect a debt by falsely claiming he owed a debt;
(e)(2) by falsely claiming he owed a debt; (e)(8) by communicating information to a third party,
including Trans Union, that was known to be false; and (g)(b) by failing to cease collection of
the debt following his written dispute and prior to their validation of the debt. Defendants argue
that Alston fails to state a claim because the Complaint does not establish that he has been the
object of collection activity arising from a consumer debt.
Defendants are correct that in order to establish a cause of action under the FDCPA, a
complaint must allege that “(1) the plaintiff has been the object of collection activity arising from
a consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3) the
defendant has engaged in an act or omission prohibited by the FDCPA.” Stewart v. Bierman, 859
F.Supp.2d 754, 759-60 (D.Md. 2012) aff’d sub. nom. Lembach v. Bierman, 528 Fed.Appx. 297
(4th Cir., June 12, 2013). “Under the FDCPA, a consumer debt means any obligation or alleged
obligation of a consumer to pay money arising out of a transaction in which the money, property,
insurance, or services which are the subject of the transaction are primarily for personal, family
or household purposes, whether or not such obligation has been reduced to judgment. 15 U.S.C.
§ 1692a(5). Therefore, to establish a claim under the FDCPA, plaintiffs must allege and prove
that the subject of the debt is primarily for ‘personal, family or household purposes.’” Alston v.
Cavalry Portfolio Services, LLC, 2013 WL 665036, *3 (D.Md. Feb. 22, 2013).
Alston has inadequately alleged that the subject of the debt in question is a consumer debt
as required by the FDCPA. Unlike the complaint in Alston v. Cavalry, the Complaint here does
not even contain a formulaic recitation of the elements of the cause of action. He merely states

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that he is a consumer as defined by 15 U.S.C. § 1681a(c). Therefore, Alston has failed to state a
claim upon which relief may be granted.
Accordingly, the Court will DISMISS Count I WITHOUT PREJUDICE.
B. COUNT II
Alston alleges that he and two classes of plaintiffs should be compensated for
Defendants’ violations of § 1692(g)(a) of the FDCPA. He argues that Defendants failed to notify
him and the first putative class of their rights to dispute the debt and failed to disclose certain
statutorily required information regarding the debt, which Defendants were required to provide
within five days of their initial communication. He contends that Defendants’ initial
communication with him and the first putative class was made through the indirect
communication via Trans Union. Alston also alleges that Defendants violated the FDCPA when
Trident sent him and the second putative class letters during the 30-day period that he and the
others were permitted to dispute the debt. The letters purportedly violated § 1692(g)(a) because
they included language that demanded payment or may have been perceived to demand payment.
This claim goes out for the simple reason that the Fourth Circuit does not “certify a class
where a pro se litigant will act as representative of that class.” Oxendine v. Williams. 509 F 2d.
1405, 1407 (4th Cir. 1975). Accordingly, the Court will DISMISS Count II WITHOUT
PREJUDICE.
IV.

CONCLUSION

The Court will GRANT Defendants’ Motion to Dismiss Plaintiff’s Complaint, ECF. No.
9 and DISMISS Counts I and II WITHOUT PREJUDICE.
If within 20 days, Alston so chooses, he may file a Motion for Leave to Amend his
Complaint, attaching an Amended Complaint that adequately alleges and proves that the subject

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of the debt in question is a consumer debt and that fashions the alleged violations of § 1692(g)(a)
of the FDCPA as individual, not class action, claims.
Further, Alston must file the Affidavit discussed in Footnote 1 within 20 days of the date
of this Memorandum Opinion. If he chooses to file a Motion for Leave to Amend his Complaint,
which he also must do within 20 days, he shall attach the Affidavit to said Motion. Even if he
chooses not to file a Motion for Leave to Amend his Complaint, Alston shall still, within 20
days, file the Affidavit described in Footnote 1.
Following Alston’s filing of a Motion to Amend and/or the Affidavit as required by
Footnote 1, the Court will consider what the next procedural steps should be.
A separate Order will ISSUE.

/s/________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
February 28, 2017

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