Escolar Documentos
Profissional Documentos
Cultura Documentos
No. 14-1171
ALETA POWELL,
Plaintiff - Appellant,
v.
PALISADES ACQUISITION XVI, LLC; FULTON FRIEDMAN & GULLACE,
LLP; JOHN DOES 1-10,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:13-cv-00219-RDB)
Argued:
Decided:
Palisades
Acquisition
XVI,
LLC,
and
its
attorneys,
of
two
provisions
Act
(FDCPA),
state
statutes.
15
of
the
U.S.C.
She
Fair
1692e
claimed
that
Debt
and
Collection
1692f,
after
and
Palisades
of
Judgment
did
not
qualify
as
debt
collection
Powells
appeal,
we
vacate
the
judgment
entered
on
debt
collection
action
qualifies
as
debt
did
not
falsely
claim
Palisades
ownership
of
the
courts
conditional
ruling
that
the
We also vacate
errors
made
in
the
We affirm
I
Powell,
resident
of
Baltimore,
Maryland,
incurred
$9,216.43
for
principal
and
pre-judgment
interest,
$1,230.78
in
attorneys
fees,
and
$50
in
costs,
and
which
She
later
stated
that
she
stopped
making
payments
it
to
Palisades
Gullace,
Palisades
later
LLP,
Acquisition
retained
to
help
the
it
effort,
Fulton
appearance
in
debt
Baltimore
City
District
firm
collect
collection
the
law
Friedman
collection
Court,
XVI,
the
LLC
of
(Palisades).
Fulton
debt.
&
Gullace
action
prepared
Friedman
Pursuing
its
entered
an
pending
an
&
in
Assignment
the
of
pursuant
assignee
who
judgment
in
files
its
to
Md.
an
own
Rule
assignment
name.
The
3-624,
of
which
judgment
Assignment
of
authorizes
to
enforce
Judgment
an
the
that
$0.00.
PLATINUM FINANCIAL SERVICES CORP was the
judgment creditor in this case.
PLATINUM FINANCIAL
SERVICES CORP transferred and assigned all title,
rights, and interest in said judgment on or about
March 5, 2007 to:
Palisades Acquisition XVI, LLC
210 Sylvan Avenue
Englewood Cliffs, NJ 07632
The Bill of Sales for said assignment are attached
hereto reflecting Judgment Creditors assignment.
The Assignment was signed by an attorney with Fulton Friedman &
Gullace and included a certificate of service indicating that a
copy was mailed to Powell on May 29, 2012.
of
$10,497.21.
$11,727.99,
instead
of
the
correct
amount
of
Second, it
the
assignment
of
the
judgment
to
Palisades
were
sufficiently
specific
to
demonstrate
Powells judgment.
the
assignment
of
in
the
Baltimore
City
District
Court
to
vacate
the
At
Judgment
to
correct
the
errors.
Nonetheless,
the
court
and
because
Palisades
lacked
records
documenting
commenced
this
action
against
Palisades
and
Fulton
1692-1692p;
the
Maryland
Consumer
Debt
Collection
Act
(MCDCA), Md. Code Ann., Com. Law 14-201 to 14-204; and the
Maryland Consumer Protection Act (MCPA), id. 13-101 to 13501.
in
statutory
damages
under
the
FDCPA
She demanded
and
$60,000
in
that
Palisades
made
in
the
Assignment
of
of
judgment
did
not
qualify
as
conduct
taken
in
the
court
concluded
that
Powell
had
not
produced
II
Powell
contends
first
that
the
district
court
erred
in
collection
action
does
not
constitute
animating
included
purpose
to
demand
induce
collection
debt
for
payment
payment;
(2)
or
the
had
the
relationship
between the parties; and (3) the purpose and context of the
communication.
While
the
court
acknowledged
that
the
it
contain
demand
payment.
found
that
for
Moreover,
the
Assignment
payment
although
and
the
was
of
not
court
Judgment
filed
recognized
did
to
not
induce
that
the
it
nonetheless
emphasized
that
the
Defendants
would
from Powell.
by
communications
other
from
courts
debt
only
to
collectors,
evaluate
such
as
informal
letters
or
correctly
collection
concluded
activity,
that
because
the
[it]
Assignment
contained
no
was
not
demand
a
for
determine
whether
the
filing
of
an
assignment
of
from
us[ing]
any
false,
deceptive,
or
misleading
induce
the
debtor
to
pay.
Cf.
Gburek
v.
Litton
Loan
Servicing LP, 614 F.3d 380, 385 (7th Cir. 2010) (noting that a
communication need not make an explicit demand for payment in
order
to
fall
within
the
FDCPAs
scope
and
that
PC,
643
F.3d
169,
173
(6th
Cir.
2011)
([F]or
animating
purpose
of
the
communication
must
be
to
induce
of
Judgment
filed
in
the
Baltimore
City
District
of
judgment
is
not
filed
10
in
connection
with
the
collection
debt.
of
the
of
any
debt,
nor
as
an
attempt
to
collect
any
of
Judgment
filed
in
the
Baltimore
City
District Court.
After Powell defaulted on her credit card debt, Platinum
Financial filed an action in the Baltimore City District Court
to
collect
payments
the
and
debt.
her
Following
subsequent
Powells
default
on
agreement
that
to
make
agreement,
the
again,
however,
Platinum
Financial
sold
the
judgment
to
That
Rule
provides
that
[w]hen
an
assignment
[of
name
interest.
of
the
assignee
to
the
extent
of
the
assigned
filed
the
Assignment
of
Judgment,
it
was
able
to
step
into
or
writ
of
garnishment
under
Md.
Rule
3-645.
See
inevitable
conclusion
is
further
reinforced
by
the
found
some
recoverable
asset
and
so
decided
to
pursue
reaching
its
contrary
conclusion,
the
district
court
This characterization,
however, was too cramped and overlooked the crucial role that
the filing of an assignment of judgment plays in giving the
assignee
access
to
court-sanctioned
enforcement
procedures.
action
to
collect
any
money
from
Powell.
Such
226, 234 (4th Cir. 2007), we held that a motion for summary
judgment filed in a debt collection action was subject to the
provisions of [the] FDCPA.
not
similarly
subject
to
the
FDCPA,
given
that
debt
to
collect
on
their
judgments,
and
must
take
of
an
assignment
of
judgment
is
not
debt
collection
activity.
III
Powell
concluding
contends
that
that
the
the
district
defendants
court
also
misrepresentations
erred
in
in
the
were material.
As to the first alleged misrepresentation, we conclude that
the record clearly shows that the judgment against Powell had
indeed been assigned by Platinum Financial to Palisades and that
the defendants representation of this fact was therefore not
false.
before
that
court,
since
14
Palisades
attached
only
But
litigation,
Palisades
providing
has
the
rectified
relevant
that
problem
records
that
in
this
show
that
and
was
not
the
true
owner
of
the
judgment.
City
District
Court
only
that
Palisades
had
Therefore,
the
payments
amount
of
the
judgment
toward
satisfaction
of
and
it.
the
amount
The
of
Powells
district
court
at
all
would
not
reasonably
act
differently
based
on
sophisticated
consumer,
evaluating
how
that
consumer
Russell v.
Absolute Collection Servs., Inc., 763 F.3d 385, 394-95 (4th Cir.
2014).
592 F.3d 1027, 1033 (9th Cir. 2010) ([F]alse but non-material
representations
are
not
likely
to
mislead
the
least
so
false
but
non-material
statement
is
not
to
materiality
genuinely
requirement
false
or
limits
misleading
liability
under
the
statements
that
may
Thus,
objectively
affect
the
least
sophisticated
consumers
would
consider
it
important
in
deciding
how
to
Donohue, 592
owed
not
be
actionable,
although
we
need
not
no
payments
toward
satisfaction
of
this
judgment.
The
This overstatement --
added).
But
the
least
sophisticated
consumer
who
previously believed that she had paid her debt in full could,
18
assignment
contained
an
overstatement
in
And when
excess
of
50
Moreover,
whether
the
information
would
have
been
Instead, it
important
to
the
Given
inaccurately
the
importance
reported
in
the
of
the
Assignment
figures
of
that
Judgment
were
and
the
materiality
conclusion
with
respect
to
Powells
1692e
claim.
IV
While Powells claim under 1692f was based on the same
facts advanced to support her 1692e claim, the district court
granted summary judgment to the defendants on the 1692f claim
after
concluding
Defendants
acted
that
there
unfairly
or
[was]
no
evidence
unconscionably
19
in
that
violation
the
of
[ 1692f].
650 F.3d 445, 456 (4th Cir. 2011) ([T]he failure of a party in
its
opening
brief
to
challenge
an
alternate
ground
for
court
based
its
judgment,
he
is
deemed
to
have
V
Finally, with respect to Powells claims under the MCDCA
and the MCPA, we affirm the judgment of the district court.
Powell alleged that the defendants violated a provision of the
MCDCA
that
specifies
that
[i]n
collecting
or
attempting
to
20
See
id. 13-301(14)(iii).
Unlike the FDCPA, the MCDCA contains a with knowledge
element,
which
Powell
did
not
establish.
See
Spencer
v.
14-202(8)
either
had
as
actual
requiring
knowledge
proof
that
that
their
the
asserted
concluded
that,
regardless
of
the
errors
in
the
Because
we
agree
with
the
district
court
that
the
VI
In sum, while we affirm the summary judgment on the 1692f
claim and the state-law claims, we vacate the summary judgment
granted to the defendants on the 1692e claim, based on our
conclusions
collection
(1)
that
activity
the
Assignment
implicating
21
the
of
FDCPA
Judgment
and
(2)
was
that
debt
the
fide
questions.
error
defense
and
any
other
remaining
factual
was
not
intentional
and
resulted
from
bona
fide
15 U.S.C. 1692k(c).
While
district
courts
characterization
of
the
defendants
the
record
transcription error.
suggests
that
Palisades
To the
made
by
paralegal.
The
commission
22
of
such
errors,
if
On
opportunity
remand,
to
the
develop
court
the
should
give
defense
and
the
defendants
the
parties
an
an
we
vacate
the
summary
judgment
entered
in
23