Bey v. Shapiro Brown & Alt, LLP
997 F. Supp. 2d 310
D. Maryland2014Background
- Plaintiff Bey challenged NYCB and SBA in a FDCPA suit and Maryland consumer statutes regarding a defaulted mortgage.
- Note was transferred from Nationwide Mortgage Services to Ohio Savings Bank, then to AmTrust Bank, and eventually to NYCB; endorsements to Note were central to ownership.
- Plaintiff sought foreclosure defenses after NYCB retained SBA to foreclose; SBA served an Order to Docket in May 2012 with attached Note endorsements.
- Plaintiff requested original Note and challenged endorsements; later alleged perjured endorsements and improper authority to foreclose.
- Amended Complaint asserts FDCPA claim against SBA, MCDCA claims against SBA and NYCB, and MCPA claim against NYCB; motions to dismiss followed.
- Court granted motions to dismiss all claims with prejudice, concluding statute of limitations and pleading deficiencies foreclose relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA statute of limitations | Limitation reset by ongoing communications; first violation date uncertain. | Limitations triggered by service of foreclosure, May 29, 2012. | FDCPA claim time-barred; limitations triggered by service, not ongoing notices. |
| Continuing violation theory under FDCPA | Subsequent notices constitute separate violations restarting limits. | Subsequent communications are part of the same first violation; not separate claims. | No continuing violations; limits run from first violation. |
| MCDCA knowing-violation requirement | Defendants’ endorsements show knowledge of invalidity. | Plaintiff fails to show knowledge or deliberate indifference to lack of right to enforce. | MCDCA claim dismissed for lack of knowledge showing. |
| MCPA viability | MCDCA violation would support MCPA claim; reliance shown. | No reliance pleaded; MCDCA dismissal precludes MCPA claim; or lack of reliance defeats MCPA. | MCPA claim dismissed for lack of reliance and derivative basis. |
| Dismissal with prejudice | Amendment could cure pleading defects; not futile to amend. | Repeated failures to plead plausibly; amendment would be futile. | Dismissal with prejudice appropriate; further amendments unlikely to succeed. |
Key Cases Cited
- Jones v. Bock, 549 U.S. 199 (2007) (FDCPA limitations stance on pleading and defenses)
- Goodman v. Praxair, Inc., 632 F. Supp. 2d 494 (D.Md. 2009) (considerations for motions to strike or respond to papers)
- Fontell v. Hassett, 870 F. Supp. 2d 395 (D.Md. 2012) (limitations accrual in FDCPA continuing-violation context)
- McGhee v. JP Morgan Chase Bank, N.A., 2013 WL 4495797 (D.Md. 2013) (limitations accrual for continuing FDCPA actions)
- Clark v. Absolute Collection Serv., Inc., 741 F.3d 487 (4th Cir. 2014) (statutory writing requirement as interpretive issue under FDCPA)
- Sterling v. Ourisman Chevrolet of Bowie Inc., 943 F. Supp. 2d 577 (D.Md. 2013) (MCDCA applicability and holder status considerations)
- Dow v. Jones, 232 F. Supp. 2d 491 (D.Md. 2002) (service and validity presumptions in state foreclosure context)