Hicks et al v. Ward et al

Filing 20

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 10/24/2017. (c/m 10/24/17 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

PIERRE HICKS, et al,

*

Plaintiff,

*

v.

*

CARRIE M. WARD, et al,

*

Defendants.

Civil Action No. PX 17-258

*
******
MEMORANDUM OPINION

This Memorandum Opinion addresses the pending Motions to Dismiss filed by
Defendants Alex Cooper Auctioneers Inc. (ACAI) and Sara Tussey, ECF No. 7, and Carrie M.
Ward, Howard N. Bierman, Jacob Geesing, Pratima Lele, Joshua Coleman, Richard R.
Goldsmith, Jr., Ludeen McCartney-Green, Jason Kutcher, Elizabeth C. Jones, John E. Discoll,
David K. McCloud, and Nicholas Derdock (collectively “Substitute Trustees”); Christina
Williamson and Christopher Haresign (collectively “BWW Law”), ECF No. 10. The issues are
fully briefed, and the Court now rules pursuant to Local Rule 105.6 because no hearing is
necessary. For the reasons stated below, the Defendants’ motions are GRANTED and the Court
shall DISMISS this case with prejudice.
I.

BACKGROUND
Due to the ambiguity of Plaintiffs’ operative Complaint, this factual background is based

on the Amended Complaint and supplemented by the attachments to Plaintiffs’ original
complaint,1 as well as the public record, which includes cases in the Circuit Court for
Montgomery County, Maryland, and this Court.2

1

While Plaintiffs attached a number of exhibits to their original complaint, they did not include them with their
Amended Complaint. Because the Amended Complaint makes repeated references to these original attachments, the

1

Plaintiffs’ Amended Complaint centers on the foreclosure of real property located at 10406
Damascus Park Lane, Damascus, Maryland 20872 (the “Property”). See ECF Nos. 1-3, 1-4.
Plaintiffs executed a Deed of Trust and Note, secured by the Property, on December 20, 2006.
ECF No. 10-3. Plaintiffs do not challenge the validity of the Deed of Trust and Note.
Following Plaintiffs’ default on the Note in 2010, BWW Law group, LLC (“BWW
Law”) – then known as Bierman, Geesing, Ward & Wood, LLC – was retained to foreclose on
the Property. On June 8, 2010, BWW Law, acting as substitute trustees, initiated a foreclosure
action against the Property in the Circuit Court for Montgomery County, Maryland in Jacob
Geesing, et al v. Pierre Hicks, et al, Case No. 333446-V (2011). Plaintiffs removed this case to
this Court, but it was remanded, see Jacob Geesing, et al v. Tanya Hicks, et al, No. PJM 10-1731
(D. Md. Jan. 18, 2011). The Montgomery County Circuit Court then dismissed the action
without prejudice. Docket, Jacob Geesing, et al v. Pierre Hicks, et al, Case No. 333446-V
(2011).
On November 17, 2015, BWW Law initiated a new foreclosure action against the
Property in the Circuit Court for Montgomery County, Maryland. Carrie M. Ward, et al, v.
Pierre Hicks, et al, Case No. 411672-V (2016) (the “State Foreclosure Action”). Plaintiffs’
challenges to the foreclosure were rejected by the Circuit Court, and a public foreclosure auction
of the Property was effectuated on April 16, 2016 by Alex Cooper Auctioneers Inc. (“ACAI”).
ECF No. 4 at ¶ 9.

Court will infer that Plaintiffs intended to include these exhibits with their Amended Complaint. A court may
consider a document submitted by the movant that was not attached to the complaint or expressly incorporated
therein, so long as the document was integral to the complaint and there is no dispute about the document’s
authenticity. Goines v. Valley Cmty. Servs. Bd., 822 F.2d 159, 166 (4th Cir. 2016).
2
At the motion to dismiss stage, the court may consider matters of public records, and other similar materials that
are subject to judicial notice. Philips v. Pitt County Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

2

On June 20, 2016, Plaintiffs attempted to remove the State Foreclosure Action to this
Court based on Federal Debt Consumer Protection Act (FDCPA) defensive counterclaims, but
the case was remanded to Montgomery Circuit Court on August 1, 2016. BBW Law Group,
LLC, et al, v. Pierre Hicks et al, No. DKC 16-2218, 2016 WL 4078019 (D. Md. Aug. 1, 2016).
Soon thereafter, Plaintiffs filed a complaint in this Court before the Honorable Paul W. Grimm.
See Pierre Hicks et al v. BWW Law Group et al, PWG-16-2859, 2016 WL 5957556 (Oct. 13,
2016). The Complaint in the prior federal action closely mirrors the Amended Complaint here.
In both, Plaintiffs allege nearly identical claims against similar defendants. Id.
On September 29, 2016, the Circuit Court for Montgomery County entered judgment in
the State Foreclosure Action awarding possession of the property to Trustees. Ward et al v.
Tanya Hicks et al, Case No. 411672V (2016). On October 3, 2016, Plaintiffs moved for
injunctive relief before Judge Grimm, the claimed basis for which related to substantially similar
FDCPA claims that the Plaintiffs now bring in the Amended Complaint. Id. Hicks et al, 2016
WL 5957556. On October 13, 2016, the Court denied Plaintiffs’ motion because Plaintiffs could
not demonstrate on the FDCPA claims likelihood of success on the merits and the requested
relief would violate the Anti-Injunction Act. Id. (internal citation omitted). Plaintiffs ultimately
withdrew the Complaint before Judge Grimm prior to his reaching the merits of the case. See
Docket, Hicks et al, 2016 WL 5957556. Plaintiffs then noted an appeal of the State Foreclosure
Action in the Maryland Court of Special Appeals, which the court dismissed on January 9, 2017
because Plaintiffs failed to brief the issues. See Hicks v. Carrie M. Ward et al, No. 1502 (2017).
On January 30, 2017, Plaintiffs filed their Complaint with this Court alleging violations
of the FDCPA as to Defendants. See ECF No. 1. Plaintiffs filed an Amended Complaint, ECF
No. 4, on March 6, 2017, adding Defendants Carrie M. Ward, Howard N. Bierman, Jacob

3

Geesing, Pratima Lele, Joshua Coleman, Richard R. Goldsmith, Jr., Ludeen McCartney-Green,
Jason Kutcher, Elizabeth C. Jones, John E. Discoll, David K. McCloud, and Nicholas Derdock
(collectively “Substitute Trustees”); Christina Williamson and Christopher Haresign (collectively
“BWW Law”); Alex Cooper Auctioneers Inc. (“ACAI”) and its counsel, Sara Tussey;
Montgomery County Circuit Court judges Mary Beth McCormick, Karla Natasha Smith, Richard
E. Jordan, Keith J. Rosa, John W. Debelius III, and Robert A. Greenberg; the Clerk of the
Montgomery County Court, Barbara H. Meiklejohn; and Darren M. Popkin, Montgomery
County Sherriff. ECF No. 4. The Amended Complaint brings various FDCPA claims and
requests monetary damages and for the Court to vacate the judgment in the State Foreclosure
Action.
On March 27, 2017, ACAI, Sara Tssey, Substitute Trustees, and BWW Law Defendants
moved to dismiss the Amended Complaint in its entirety. ECF Nos. 7, 10. Plaintiffs responded
on April 13, 2017, to which Substitute Trustees and BWW Law replied on April 27, 2017. On
May 22, 2017, Plaintiffs filed an additional response and proposed order.
II.

DISCUSSION
In ruling on a motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true

and the complaint is viewed in the light most favorable to the plaintiff. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “However, conclusory statements or a ‘formulaic recitation
of the elements of a cause of action will not [suffice].’ ” EEOC v. Performance Food Grp., Inc.,
16 F. Supp. 3d 584, 588 (D. Md. 2014) (quoting Twombly, 550 U.S. at 555). “Factual allegations
must be enough to raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555.
“ ‘[N]aked assertions of wrongdoing necessitate some ‘factual enhancement’ within the

4

complaint to cross ‘the line between possibility and plausibility of entitlement to relief.’ ”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).
Although pro se pleadings are construed liberally to allow for the development of a
potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9 (1980), the Court must not ignore a
clear failure in the pleadings to allege facts setting forth a cognizable claim. See Weller v. Dep't
of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude’ with which a
district court should view such pro se complaints does not transform the court into an advocate.
Only those questions which are squarely presented to a court may properly be addressed.”
(internal citation omitted)). “A court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are not more than conclusions, are not entitled to the
assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 665 (2009).
III.

ANALYSIS

Plaintiffs’ Amended Complaint asserts numerous violations of the Fair Debt Collection
Practices Act (FDCPA), see Amended Compl, ECF No. 4, but their allegations are no more than
a “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555, and do
not make a “showing . . . of entitlement to relief.” Id. at 556 n.3. While the Amended Complaint
cites specific sections of the FDCPA, Plaintiffs do not allege facts to substantiate their claims
and frequently misstate the law. See, e.g., Amended Compl., ECF No. 4 at 2–3. For example,
Plaintiffs’ assertions that the FDCPA grants the Plaintiffs the legal authority to find the
Defendants liable without any judicial inquiry, see, e.g., ECF No. 16 at ¶¶ 7–10, is without merit,
as is the repeated assertion that the FDCPA grants consumers the right to independently assess
damages on Defendants. See e.g., Amended Comp., ECF No. 4 at 4 – 5, and ECF No. 16 at ¶¶ 1,
10 (“Under the FDCPA, there is no trial and no procedure. Consumers have found
5

Respondent(s) liable. Damages have been assessed pursuant to 1692(k). This is a judgement of
the Consumers under the authority that’s been recognized and given by Congress. It needs to be
respected without argument. That’s the Consumers order and declaration, and the Court needs to
ratify that. The Court is granted leave to add to it, but not granted authority to take anything
away from it.”). However, because “pro se plaintiff[s] [are] general[ly] given more leeway than
a party represented by counsel,” Bell v. Bank of America, N.A., Civ. A. No. RDB–13–478, 2013
WL 6528966, *1-2 (D. Md. 2013), and in hopes of resolving what has been a lengthy and
litigious foreclosure process for many of the Defendants,3 this Court will briefly address the
substance of Plaintiffs’ Amended Complaint.
The Amended Complaint is solely comprised of alleged FDCPA violations. Amended
Compl, ECF No. 4. “To succeed on a FDCPA claim, a plaintiff must demonstrate that ‘(1) the
plaintiff has been the object of collection activity arising from 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 (D. Md.
2012) (quoting Dikun v. Streich, 369 F. Supp. 2d 781, 784–85 (E.D. Va. 2005)). FDCPA claims
must be viewed from the perspective of the “least sophisticated debtor.” Chaudhry v. Gallerizzo,
174 F.3d 394, 408 (4th Cir.1999). “Although naive, the least sophisticated debtor is not ‘tied to
the very last rung of the intelligence or sophistication ladder.’ ” Johnson v. BAC Home Loans
Servicing, 867 F.Supp.2d 766, 776 (E.D.N.C.2011) (quoting Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir.2009)); see also United States v. Nat’l Financial Services Inc., 98 F.3d 131, 136 (4th
Cir. 1996).

3

Plaintiffs appeared before this Court contesting the foreclosure on the Property three previous occasions. See BBW
Law Group, LLC, et al, v. Pierre Hicks et al, No. DKC 16-2218, 2016 WL 4078019 (Aug. 1, 2016, D. Md.); Pierre
Hicks et al v. BWW Law Group et al, PWG-16-2859, 2016 WL 5957556 (Oct. 13, 2016 D. Md.).

6

The Court initially addresses the Plaintiffs’ failure to plausibly allege how the lion’s
share of named Defendants can be construed as debt collectors under the FDCPA. A “debt
collector” is “any person who uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any debts, or who regularly collects
or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due
another.” 15 U.S.C. § 1692a(6). “[C]reditors, mortgagors, and mortgage servicing companies
are not debt collectors and are statutorily exempt from liability under the FDCPA.” Offiah v.
Bank of Am., N.A., No. DKC 13-2261, 2014 WL 4295020, at *5 (D. Md. Aug. 29, 2014)
(quoting Scott v. Wells Fargo Home Mortg. Inc., 326 F. Supp. 2d 709, 718 (E.D. Va. 2003)); see
also 15 U.S.C.A. § 1692a(6). Law firms and lawyers acting in connection with a foreclosure
may, in certain circumstances, qualify as “debt collectors” under the FDCPA. Stewart, 859 F.
Supp. 2d at 761 (citing Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373, 375 (4th Cir.
2006)). However, the FDCPA “should not be assumed to compel absurd results,” such as
barring debt collecting lawsuits or barring communication between a creditor’s lawyer and a
debtor-consumer. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573,
599–600 (2010).
Beginning with Defendant ACAI, Plaintiffs do not aver any facts to demonstrate how
they are “debt collectors” under the FDCPA. See Am. Comp., ECF No. 4 at ¶ 2. ACAI is an
auction house, and its involvement with the Property is limited to holding of a public auction
pursuant to court order. See Ward et al v. Tanya Hicks et al, Case No. 411672V (2016);
Amended Compl., ECF No. 4 at ¶ 9. This does not render ACAI a “debt collector” as required
by the FDCPA. See 15 U.S.C. § 1692a(6). Thus, the FDCPA claims as to Defendant ACAI are
dismissed.

7

Sara Tussey acted as counsel for ACAI in the State Foreclosure Action and is sued as
ACAI’s “co-conspirator,” based on her “making appearances without the expressed consent of
the Consumers or a court of competent jurisdiction to communicate with the Consumers.”
Amended Compl., ECF No. 4 at 3. Plaintiffs, however, fail to allege any facts demonstrating
how Tussey is a debt collector under the FDCPA. See Amended Compl., ECF No. 4. At bottom,
Plaintiffs allege that Tussey acted as ACAI’s agent. Thus, because ACAI has not properly been
identified as a debt collector, allegations as to Tussey suffer from the same fatal flaw. See
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 599–600 (2010).
Plaintiffs Amended Complaint as to Defendants Maryland Circuit Court Judges as well as
against Barbara H. Meikejohn, the Montgomery County Court Clerk, suffers from an even more
fundamental problem in that they are all immune from suit. See Mireles v. Waco, 502 U.S. 9, 11
(1991); see also Kincaid v. Vail, 969 F.2d 594, 600–01 (7th Cir. 1992) (noting that “court
officials who act at the behest of a judge or pursuant to a court order are entitled to absolute
quasi-judicial immunity from suit to those actions.”) (quoting Forte v. Sullivan, 935 F.2d 1, 3
(1st Cir. 1991)). Accordingly even if the Amended Complaint could be construed as plausibly
alleging these particular Defendants are debt collectors, which it does not, the judicial immunity
doctrine forecloses this action against them. See Amended Compl., ECF No. 4 at ¶ 17.
Similarly, as to Montgomery County Sheriff, Darren M. Popkin, the claimed violations
center on his having served Plaintiffs with an eviction notice. Id. at ¶ 19. It is well settled in
Maryland that county sheriffs are state officials. See Md. Const. art IV § 44; see also Rucker v.
Harford County, 316 Md. 275 (1989) (concluding after analysis of Maryland’s Constitution and
Code that a sheriff and his deputies are state employees); State v. Card, 104 Md. App. 439, 444–
45 (1995). Further, Popkin’s alleged wrongdoing centrally involves his role as a law

8

enforcement officer in serving an eviction notice. Because a state official acting in his or her
official capacity is, without more, immune from suit under the Eleventh Amendment of the
United States Constitution, Popkin’s claims likewise must be dismissed. See Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 71 (1989). Alternatively, even if the Court assumes that somehow
Defendant Popkin was effectuating service in his personal capacity, Plaintiffs have pleaded no
facts which support that he functioned as a “debt collector” under the FDCPA. Accordingly, the
FDCPA claims against Popkin fail. See ECF No. 4 at ¶ 19.
By contrast, the Substitute Trustees and BWW Law Defendants are subject to the
FDCPA as substitute trustees and lawyers foreclosing on a deed of trust. See Okoro v. Wells
Fargo Bank, N.A., No. PX-16-0616, 2016 WL 5870031 (Oct. 6, 2016 D. Md). Accordingly, the
Court must address the sufficiency of the allegations against them. As to the BWW Law
Defendants, Plaintiffs allege that they violated § 1692c of the FDCPA by “making appearances
without the expressed consent of the Consumers,” Amended Compl., ECF No. 4 at ¶ 15, and
“fil[ing] in Bankruptcy Court a Motion to Release from Stay the injunctive relief [sic] under the
FDCPA, which was granted on January 23, 2017.” Id. at ¶ 14. Section 1692 requires a debt
collector to cease further written communication with a consumer if the consumer notifies the
debt collector in writing that they refuse to pay a debt or wish the debt collector to cease further
communication with the consumer. 15 U.S.C. § 1692c. Although Plaintiffs do not offer any
factual support for their claims, the Court infers that the §1692c claims relate to BWW Law’s
representation of Substitute Trustees in preceding cases.
Plaintiffs seem to allege that §1692c prohibits all collection activity once Plaintiffs
request such activity to cease, even if the activities entail foreclosure procedures warranted by
law. Importantly, lawyers may act on behalf of their clients in debt collection lawsuits within the

9

boundaries of professional conduct and the law. See Jerman v. Carlisle, McNellie, Rini, Kramer
& Ulrich LPA, 559 U.S. 573, 599–600 (2010). Plaintiffs here offer no facts to support that the
BWW Law Defendants exceeded the bounds of the law in representing their clients in the State
Foreclosure Action. Thus, this claim against them must fail.
As to the Substitute Trustees, the Amended Complaint alleges that the Defendants
“initiated a non-judicial debt collection action” in violation of 15 U.S.C. § 1692i, which requires
debt collectors to bring such a collection action “in a competent judicial court.” Amended
Compl, ECF No. 4 at ¶4. In pertinent part, §1692i(a)(1) requires creditors “in the case of an
action to enforce an interest in real property securing the consumer’s obligation,” to “bring such
action only in a judicial district or similar legal entity in which such real property is located.” 15
U.S.C. §1692i. Here public records4 reflect that Defendants brought the foreclosure action in the
judicial district in which the Property was located. Thus the foreclosure action does not run
afoul of §1692i. See Ward et al v. Tanya Hicks et al, Case No. 411672V (2016). This claim,
too, must be dismissed.
Plaintiffs also allege that the Substitute Trustees violated § 1692g by failing to respond to
the Plaintiffs’ request for verification and validation of the alleged debt. Amended Compl., ECF
No. 4 at ¶6. Section 1692g requires a debt collector to send written notice to a consumer (1)
specifying the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a
statement that if the consumer does not dispute the debt or any portion thereof within thirty (30)
days of receipt of the notification that the debt is presumed valid, (4) a statement that if the
consumer timely disputes the debt, the debt collector will obtain verification of the debt and mail

4

 Fed. R. Evid. 201(b)(2) permits the Court to take judicial notice of “fact[s] that [are] not subject to reasonable
dispute because [they] can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned,” such as matters of public record. Fed. R. Evid. 201(b)(2); see Alston v. Wells Fargo Home Mortg., No.
TDC-13-3147, 2016 WL 816733, at *1 n.1 (D. Md. Feb. 26, 2016). 

10

the same to the consumer; and (5) a statement that upon the consumer’s timely request, the debt
collector will provide to the consumer the name and address of the original creditor. 15 U.S.C. §
1692g. Debt collectors are required to send this written notice to consumers within five days of
initial communication with the consumer. Id.
Plaintiffs attach to the original Complaint a letter postmarked to Defendants March 21,
2016. See ECF No. 1-2. Plaintiffs do not allege that the March 21 letter is a timely response to a
debt collection notice. See ECF No. 1-2. Instead, Plaintiff appears to misread the statute to
require Defendants to respond to any debt validation request by Plaintiff. Amended Compl.,
ECF No. 4; see 15 U.S.C. § 1692g. These conclusory allegations, based on Plaintiffs’
misunderstanding of FDCPA’s requirements, do not establish a plausible claim.
As to the remaining claims against Substitute Trustees under 15 U.S.C. §§ 1692f(6) and
1692d, the Plaintiffs do not identify, let alone plausibly allege, any non-judicial actions by
Defendants that violate § 1692f’s prohibition on “unfair or unconscionable means.” 15 U.S.C. §
1692f. Defendants’ pursuit of a valid foreclosure action, standing alone, does not violate §
1692f. Id. Similarly, Defendants’ continued efforts to take possession of property to which it is
legally entitled, and through legal means, does not violate the FDCPA. See, e.g., Okoro, 2016
WL 5870031 at *10; Amended Compl., ECF No.4 at ¶ 7 (alleging Defendants “continue to make
a physical threat to seize, dispossess, and disable private personal property belonging to the
Consumers.”). Consequently, the remaining FDCPA claims against the Substitute Trustees must
be dismissed.
Finally, apart from the FDCPA claims – of which none survive challenge – Plaintiffs also
move to vacate the judgment in the State Foreclosure Action. ECF No. 4 at 5 (“Consumers
move to vacate debt collection Case No: 411672V in the Circuit Court for Montgomery Country

11

per Federal Rules 12b(1)-(7)”). It is not at all clear on what legal grounds Plaintiffs claim to be
entitled to this relief. Thus, because this request is wholly without support in the law, it is denied.

IV.

CONCLUSION
Because Plaintiffs have failed to state a claim in their Amended Complaint, after multiple

opportunities to litigate this matter, Defendants’ motions to DISMISS are GRANTED and the
Court shall DISMISS this case with prejudice. A separate Order follows.

10/24/2017
Date

/S/
Paula Xinis
United States District Judge

12