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    Abdul Conteh v. Shamrock Community Ass'n, 4th Cir. (2016)

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    This document summarizes a United States Court of Appeals case regarding claims brought under the Fair Debt Collection Practices Act and Maryland consumer protection laws. The plaintiffs alleged that the defendant debt collector violated these laws by filing a writ of execution to collect on a condominium association judgment that listed an inflated judgment principal and amount owed. The court affirmed in part and vacated in part the dismissal of the plaintiffs' claims. It found that the alleged 10.4% overstatement in the writ of execution could mislead the least sophisticated consumer, but that initiating legal proceedings does not constitute harassment on its own. The case was remanded for further analysis of certain claims.

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    Abdul Conteh v. Shamrock Community Ass'n, 4th Cir. (2016)

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    44 views9 pages
    This document summarizes a United States Court of Appeals case regarding claims brought under the Fair Debt Collection Practices Act and Maryland consumer protection laws. The plaintiffs alleged that the defendant debt collector violated these laws by filing a writ of execution to collect on a condominium association judgment that listed an inflated judgment principal and amount owed. The court affirmed in part and vacated in part the dismissal of the plaintiffs' claims. It found that the alleged 10.4% overstatement in the writ of execution could mislead the least sophisticated consumer, but that initiating legal proceedings does not constitute harassment on its own. The case was remanded for further analysis of certain claims.

    Original Description:

    Filed: 2016-05-19 Precedential Status: Non-Precedential Docket: 15-2171

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    This document summarizes a United States Court of Appeals case regarding claims brought under the Fair Debt Collection Practices Act and Maryland consumer protection laws. The plaintiffs alleged that the defendant debt collector violated these laws by filing a writ of execution to collect on a condominium association judgment that listed an inflated judgment principal and amount owed. The court affirmed in part and vacated in part the dismissal of the plaintiffs' claims. It found that the alleged 10.4% overstatement in the writ of execution could mislead the least sophisticated consumer, but that initiating legal proceedings does not constitute harassment on its own. The case was remanded for further analysis of certain claims.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    44 views9 pages

    Abdul Conteh v. Shamrock Community Ass'n, 4th Cir. (2016)

    Uploaded by

    Scribd Government Docs
    This document summarizes a United States Court of Appeals case regarding claims brought under the Fair Debt Collection Practices Act and Maryland consumer protection laws. The plaintiffs alleged that the defendant debt collector violated these laws by filing a writ of execution to collect on a condominium association judgment that listed an inflated judgment principal and amount owed. The court affirmed in part and vacated in part the dismissal of the plaintiffs' claims. It found that the alleged 10.4% overstatement in the writ of execution could mislead the least sophisticated consumer, but that initiating legal proceedings does not constitute harassment on its own. The case was remanded for further analysis of certain claims.

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    of 9

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 15-2171

    ABDUL CONTEH; DADAY CONTEH,


    Plaintiffs - Appellants,
    v.
    SHAMROCK COMMUNITY ASSOCIATION, INC.; NAGLE & ZALLER, P.C.,
    Defendants - Appellees.

    Appeal from the United States District Court for the District of
    Maryland, at Baltimore.
    Beth P. Gesner, Magistrate Judge.
    (1:14-cv-00794-BPG)

    Submitted:

    April 29, 2016

    Decided:

    May 19, 2016

    Before KEENAN, WYNN, and THACKER, Circuit Judges.

    Affirmed in part, vacated in part, and remanded by unpublished


    per curiam opinion.

    E. David Hoskins, Steven B. Isbister, THE LAW OFFICES OF E.


    DAVID HOSKINS, LLC, Baltimore, Maryland, for Appellants.
    Craig
    B. Zaller, Brian R. Fellner, NAGLE & ZALLER, P.C., Columbia,
    Maryland, for Appellees.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Abdul

    and

    Daday

    Conteh

    (Conteh)

    appeal

    the

    magistrate

    judges order dismissing their complaint that featured claims


    under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.
    1692-1692p (2012), the Maryland Consumer Debt Collection Act,
    Md.

    Code

    Ann.,

    Com.

    Law

    14-201

    to

    -204

    (2013),

    and

    the

    Maryland Consumer Protection Act (MCPA), Md. Code Ann., Com. Law
    13-101 to -501 (2013).

    Contehs claims stem from Nagle &

    Zaller, P.C. (Nagle) filing a writ of execution to satisfy a


    judgment in favor of Shamrock Community Association (Shamrock)
    for condominium homeowner payments that Conteh failed to timely
    pay.

    Contehs complaint alleged that the judgment principal and

    amount owed on the judgment as listed in the writ of execution


    exceeded the actual judgment principal and amount owed on the
    judgment.

    The

    parties

    consented

    complaint by a magistrate judge.

    to

    the

    resolution

    of

    the

    Pursuant to Fed. R. Civ. P.

    12(b)(6), the magistrate judge dismissed Contehs complaint in


    its entirety.
    We

    review

    de

    novo

    the

    district

    courts

    dismissal

    failure to state a claim under Fed. R. Civ. P. 12(b)(6).

    for
    Secy

    of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700,


    705 (4th Cir. 2007).
    dismiss,

    judge

    [W]hen ruling on a defendants motion to

    must

    accept

    as

    true

    allegations contained in the complaint.


    2

    all

    of

    the

    factual

    Erickson v. Pardus,

    551 U.S. 89, 94 (2007). While a complaint attacked by a Rule


    12(b)(6)

    motion

    to

    dismiss

    does

    not

    need

    detailed

    factual

    allegations, . . . a formulaic recitation of the elements of a


    cause of action will not do and the complaint must contain
    enough facts to state a claim to relief that is plausible on
    its face.
    (2007).

    Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570

    Having reviewed the record and the relevant case law,

    we affirm the magistrate judges order in part, vacate in part,


    and remand for further proceedings.
    I.
    Contehs

    complaint

    provisions

    of

    listed

    inflated

    an

    judgment.

    the

    FDCPA

    alleged
    by

    judgment

    that

    filing

    principal

    Nagle

    writ
    and

    of

    violated

    two

    execution

    that

    amount

    due

    on

    the

    Turning to Contehs first claim under the FDCPA, a

    debt collector is prohibited from using any false, deceptive,


    or misleading representation or means in connection with the
    collection

    of

    any

    debt.

    15

    U.S.C.

    1692e.

    Whether

    communication is false, misleading, or deceptive in violation of


    1692e

    is

    determined

    sophisticated consumer.

    from

    the

    vantage

    of

    the

    least

    Powell v. Palisades Acquisition XVI,

    LLC, 782 F.3d 119, 126 (4th Cir. 2014) (internal quotation marks
    omitted).

    When viewing a misstatement from the perspective of

    the least sophisticated consumer, we consider how a naive


    consumer would interpret the statement.
    3

    Elyazidi v. SunTrust

    Bank,

    780

    F.3d

    marks omitted).

    227,

    234

    (4th

    Cir.

    2015)

    (internal

    quotation

    A misstatement must be material to sustain a

    claim under 15 U.S.C. 1692e; that is, the misstatement must


    have

    the

    potential

    to

    frustrate

    [the

    least

    sophisticated]

    consumers ability to intelligently choose his or her response,


    id. (internal quotation marks omitted), or must be the type of
    misstatement that would have been important to the consumer in
    deciding how to respond to efforts to collect the debt, Powell,
    782 F.3d at 127.
    Although
    sophisticated

    the

    magistrate

    consumer

    test,

    judge
    the

    stated

    magistrate

    the

    judge

    least
    erred

    by

    relying on how Conteh actually acted when determining whether


    Nagles misstatement regarding the judgment principal and amount
    owed

    on

    the

    judgment

    was

    material.

    Instead,

    as

    stated

    in

    Powell, the proper analysis requires consideration of the degree


    to which the amount due on the debt was overstated and whether
    the extent of the overstatement would have been material to the
    least sophisticated consumer.

    Id. at 126-27 (noting that mere

    technical falsehoods are not actionable and that a de minimis


    misstatement might not be actionable but that an overstatement
    of 50% easily satisf[ied] the materiality requirement).

    Here,

    the writ of execution identified $1,748.98 as the amount Conteh


    owed while Contehs amended complaint alleged that the amount
    due

    on

    the

    judgment

    at

    the

    time
    4

    the

    writ

    was

    filed

    was

    $1,583.96.

    Accordingly,

    the

    writ

    allegedly

    amount owed by $165.02, or by 10.4%.

    overstated

    the

    While the degree of the

    alleged overstatement is not as significant as the overstatement


    in

    Powell,

    sufficient

    we
    to

    conclude
    be

    that

    important

    an
    to

    overstatement
    how

    the

    of

    least

    10.4%

    is

    sophisticated

    consumer responds by causing confusion and a potential challenge


    by the consumer to the writ.
    increased

    potential

    for

    In so concluding, we note the

    confusion

    where

    the

    writ

    allegedly

    identified a judgment principal from a prejudgment demand letter


    even though the state court judgment awarded Shamrock a lesser
    judgment

    principal

    magistrate

    judges

    than

    demanded.

    dismissal

    of

    Therefore,
    Contehs

    15

    we

    vacate

    U.S.C.

    the

    1692e

    claim.
    Turning to Contehs second claim under the FDCPA, a debt
    collector

    is

    prohibited

    from

    engag[ing]

    in

    any

    conduct

    the

    natural consequence of which is to harass, oppress, or abuse any


    person in connection with the collection of a debt.
    1692d.

    15 U.S.C.

    Other circuits have concluded that the filing of a

    debt collection action, or the threat of such action, does not


    constitute

    harassment

    or

    abuse

    of

    the

    debtor

    where

    collector relies on valid state court proceedings.

    the

    debt

    See Harvey

    v. Great Seneca Fin. Corp., 453 F.3d 324, 330-31 (6th Cir. 2006)
    (holding

    that

    filing

    of

    debt

    collection

    action

    did

    not

    constitute harassment or abuse even when debt collector lacked


    5

    means to establish debt at time of filing action); Jeter v.


    Credit

    Bureau

    Inc.,

    760

    F.2d

    1168,

    1179

    (11th

    Cir.

    1985)

    (holding that threat of legal action if debt not paid does not
    harass

    or

    abuse

    the

    debtor).

    In

    the

    context

    of

    15

    U.S.C.

    1692f, we have found that a debt collectors enforce[ment]


    [of] their contractual rights in compliance with state court
    procedure

    cannot

    plausibly

    unconscionable conduct.

    be

    construed

    as

    unfair

    Elyazidi, 780 F.3d at 235.

    or

    We apply

    our holding in Elyazidi and adopt the position stated in Harvey


    to conclude that a debt collectors initiation of a state court
    proceeding cannot legally constitute harassment, oppression, or
    abuse of the debtor. 1

    Accordingly, we affirm the magistrate

    judges dismissal of Contehs claim under 15 U.S.C. 1692d.


    II.
    With

    respect

    to

    the

    MCDCA,

    Contehs

    amended

    complaint

    alleged that the filing of and the misstatement in the writ of


    execution violated Md. Code Ann., Com. Law 14-202(6), (8).
    The magistrate judge concluded that Nagle and Shamrock did not
    1

    On appeal, Conteh contends that the filing of the writ of


    execution constituted harassment because Nagle knew there was no
    equity in the condominium unit in seeking to force its sale to
    satisfy the judgment in favor of Shamrock.
    We find no legal
    authority supporting Contehs argument and decline to adopt the
    argument, given that the alleged lack of equity in the
    condominium at the time the writ was filed did not necessarily
    foreclose Nagle from recovering all or part of the judgment owed
    through the sale of the condominium.

    violate 14-202(6) because the filing of a writ of execution is


    not a communication with the debtor and that no violation of
    14-202(8) occurred because, although the writ of execution may
    have sought an amount in excess of the amount owed, the writ was
    filed in an effort to recover a valid debt.
    Under

    Md.

    Code

    Ann.,

    Com.

    Law

    14-202(6),

    debt

    collector, in collecting or attempting to collect an alleged


    debt, may not [c]ommunicate with the debtor or a person related
    to him with the frequency, at the unusual hours, or in any other
    manner as reasonably can be expected to abuse or harass the
    debtor.
    conclude

    As with Contehs claim under 15 U.S.C. 1692d, we


    that

    debt

    collectors

    resort

    to

    state

    court

    proceedings and the filing of a writ of execution cannot legally


    constitute a communication that harasses or abuses the debtor.
    Accordingly, we decline to address whether the filing of a writ
    of execution constitutes a type of communication sufficient to
    trigger

    the

    protections

    afforded

    by

    Md.

    Code

    Ann.,

    Com.

    Law

    14-202(6); instead, we affirm the magistrate judges dismissal


    on this alternative ground.
    Sys.,

    Inc.,

    432

    F.3d

    564,

    Cf. Toll Bros., Inc. v. Dryvit


    572

    (4th

    Cir.

    2005)

    (noting

    that

    appellate court may affirm a grant of summary judgment on any


    ground appearing in the record).
    Pursuant to Md. Code Ann., Com. Law 14-202(8), a debt
    collector may not [c]laim, attempt, or threaten to enforce a
    7

    right with knowledge that the right does not exist.

    A debt

    collector

    on

    violates

    this

    provision

    by

    placing

    lien

    the

    debtors property for an amount in excess of the amount to which


    the debt collector is rightfully entitled if the amount sought
    exceeds the amount owed as a result of the debt collectors
    inclusion of an unauthorized type of charge.

    See Allstate Lien

    & Recovery Corp. v. Stansbury, 101 A.3d 520, 529-30 (Md. Ct.
    Spec. App. 2014) (holding that debt collectors inclusion of
    unauthorized $1,000 processing fee in filing of lien constituted
    seeking right that did not exist for purposes of 14-202(8)
    even though lien was filed on valid debt).

    Although the writ of

    execution allegedly sought an amount in excess of what Conteh


    owed, because the magistrate judge dismissed the case prior to
    discovery,

    it

    is

    not

    apparent

    from

    the

    record

    whether

    the

    alleged misstatement of the amount owed was the result of a


    typographical or mathematical error by Nagle or whether it was
    the result of Nagle and Shamrock including a type of charge not
    authorized

    by

    satisfaction.

    the

    underlying

    Therefore,

    we

    judgment
    vacate

    on
    the

    which

    they

    magistrate

    sought
    judges

    dismissal of Contehs claim under Md. Code Ann., Com. Law 14202(8) and remand for further proceedings. 2

    Because we vacate the dismissal of one of Contehs claims


    under the MCDCA, we also vacate the magistrate judges dismissal
    of Contehs claim under the MCPA.
    See Md. Code Ann., Com. Law
    (Continued)
    8

    Accordingly, we affirm the magistrate judges order with


    respect

    to

    the

    dismissal

    of

    Contehs

    claims

    under

    15

    U.S.C.

    1692d and Md. Code Ann., Com. Law 14-202(6), but vacate the
    order with respect to the dismissal of Contehs claims under 15
    U.S.C.

    1692e

    and

    Md.

    Code

    Ann.,

    Com.

    Law

    14-202(8).

    We

    remand for further proceedings consistent with this opinion.


    dispense

    with

    contentions

    are

    oral

    argument

    adequately

    because

    presented

    in

    the
    the

    facts

    We

    and

    legal

    materials

    before

    this court and argument would not aid the decisional process.

    AFFIRMED IN PART,
    VACATED IN PART,
    AND REMANDED

    13-301(14)(iii) (providing that plaintiff makes out viable


    claim for violation of MCPA by pleading viable MCDCA violation).

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