Kevin Richardson v. Shapiro & Brown, LLP

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 20, 2018
• Docket: 17-2064
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-2064

KEVIN RICHARDSON,

Plaintiff - Appellant,

v.

SHAPIRO & BROWN, LLP; NATIONSTAR MORTGAGE, LLC; RUSHMORE LOAN MANAGEMENT SERVICES, LLC; U.S. BANK, N.A.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:17-cv-00307-JFM)

Submitted: September 10, 2018 Decided: September 20, 2018

Before KEENAN and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed as modified by unpublished per curiam opinion.

Kevin Richardson, Appellant Pro Se. Thomas James Gartner, SHAPIRO & BROWN, LLP, Manassas, Virginia; Matthew Daniel Cohen, BWW LAW GROUP, LLC, Rockville, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Kevin Richardson filed a civil action alleging violations of the Fair Debt

Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p (2012), against Nationstar

Mortgage, LLC (“Nationstar”), Shapiro & Brown, LLP (“Shapiro”), Rushmore Loan

Management Services, LLC (“Rushmore”), and U.S. Bank, N.A. (“U.S. Bank” and,

collectively, “Defendants”), as well as violations of the Maryland Consumer Debt

Collection Act (MCDCA), Md. Code Ann., Com. Law §§ 14-201 to 14-204 (LexisNexis

2013), and the Maryland Consumer Protection Act (MCPA), Md. Code Ann., Com. Law

§§ 13-101 to 13-501 (LexisNexis 2013), against Rushmore. The district court granted

Defendants’ motions to dismiss the action. It concluded that Richardson’s claims against

Nationstar and Shapiro were barred by res judicata and the statute of limitations. It also

concluded that Richardson’s claims against Rushmore and U.S. Bank were subject to

dismissal because these Defendants were not “debt collectors” under the FDCPA, and

Richardson otherwise failed to state a plausible claim for relief against them. Richardson

appeals the dismissal order, challenging the district court’s dismissal of his FDCPA

claims. * For the reasons that follow, we affirm the district court’s judgment, as modified.

We review de novo the district court’s application of res judicata principles.

Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004). We also review de novo

the district court’s grant of a motion to dismiss for failure to state a claim, “accepting as

* Because Richardson does not challenge the dismissal of his MCDCA and MCPA claims in his informal brief, he has forfeited appellate review of these issues. See 4th Cir. R. 34(b); Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014).

2 true the complaint’s factual allegations and drawing all reasonable inferences in favor of

the plaintiff.” Elyazidi v. SunTrust Bank, 780 F.3d 227, 233 (4th Cir. 2015) (internal

quotation marks omitted). To survive a Rule 12(b)(6) motion, the “complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 652, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663. In evaluating

the complaint, we need not accept as true “legal conclusions, elements of a cause of

action, . . . . bare assertions devoid of further factual enhancement, . . . unwarranted

inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (internal quotation marks

omitted).

Initially, we conclude that Richardson’s objection to the application of res judicata

and the statute of limitations is, in part, well-taken. Res judicata applies if the proponent

of the doctrine establishes that: (1) “the prior judgment was final and on the merits, and

rendered by a court of competent jurisdiction in accordance with the requirements of due

process”; (2) “the parties are identical, or in privity, in the two actions”; and (3) “the

claims in the second matter are based upon the same cause of action involved in the

earlier proceeding.” Duckett v. Fuller, 819 F.3d 740, 744 (4th Cir. 2016) (internal

quotation marks omitted). Claims are based upon the same cause of action if they “arise

out of the same transaction or series of transactions, or the same core of operative facts.”

3 Covert v. LVNV Funding, LLC, 779 F.3d 242, 247 (4th Cir. 2015) (internal quotation

marks omitted). “A judgment satisfying those three factors is both ‘claim’ and ‘issue’

preclusive.” LVNV Funding, LLC v. Harling, 852 F.3d 367, 371 (4th Cir. 2017). Res

judicata thus forecloses relitigation of “all claims that were actually adjudicated or that

could have been adjudicated in an earlier action,” as well as “legal and factual issues that

were actually and necessarily determined in an earlier action.” Covert, 779 F.3d at 246

(internal quotation marks omitted).

We conclude that res judicata did not apply to Richardson’s FDCPA claim against

Shapiro, as it failed to establish that it was a party to, or in privity with, the parties to the

prior action. Further, res judicata does not apply to any portion of Richardson’s FDCPA

claim challenging Nationstar’s communications or conduct after the dismissal of his prior

action in June 2014. See Union Carbide Corp. v. Richards, 721 F.3d 307, 315 (4th Cir.

2013) (“[R]es judicata does not bar claims that did not exist at the time of the prior

litigation.” (internal quotation marks omitted)); see also Levi Strauss & Co. v.

Abercrombie & Fitch Trading Co., 719 F.3d 1367, 1372-73 (Fed. Cir. 2013) (recognizing

that voluntary dismissal with prejudice does not have issue preclusive effect); Amadeo v.

Principal Mut. Life Ins. Co., 290 F.3d 1152, 1159 (9th Cir. 2002) (same).

Relatedly, a one-year statute of limitations applies to FDCPA claims. 15 U.S.C.

§ 1692k(d). “Ordinarily, the statute of limitations begins to run when the communication

that violates the FDCPA is sent.” Lembach v. Bierman, 528 F. Appx 297, 301 (4th Cir.

2013) (Nos. 12-1723, 12-1746) (per curiam) (argued but unpublished). Here, the statute

of limitations does not bar those portions of Richardson’s FDCPA claims against

4 Nationstar and Shapiro that seek recovery based on communications from those

Defendants on or after February 1, 2016. Thus, the district court’s dismissal on res

judicata and statute of limitations grounds was, in part, erroneous.

With respect to Rushmore and U.S. Bank, “the FDCPA purports to regulate only

the conduct of debt collectors, not creditors, generally distinguishing between the two

based on whether the person acts in an agency relationship with the person to whom the

borrower is indebted.” Henson v. Santander Consumer USA, Inc., 817 F.3d 131, 135 (4th

Cir. 2016). The FDCPA defines “debt collector” as “(1) a person whose principal

purpose is to collect debts; (2) a person who regularly collects debts owed to another; or

(3) a person who collects its own debts, using a name other than its own as if it were a

debt collector.” Id. at 136; see 15 U.S.C. § 1692a(6); McCray v. Fed. Home Loan Mortg.

Corp., 839 F.3d 354, 359 (4th Cir. 2016). We agree with the district court’s conclusion

that U.S. Bank is not a debt collector under the FDCPA for purposes of Richardson’s

claims, and thus cannot be held liable under the FDCPA. However, we conclude that

Richardson alleged sufficient facts from which to infer that Rushmore was acting as a

debt collector in its challenged communications with Richardson. While Rushmore

sought to invoke the exemptions to the definition of “debt collector” under

§ 1692a(6)(F)(i) and § 1692a(6)(F)(iii), we find these exemptions inapplicable in light of

Rushmore’s alleged involvement in foreclosure proceedings against Richardson and the

timing of Rushmore’s communications relative to Richardson’s alleged default. See

Wilson v. Draper & Goldberg, PLLC, 443 F.3d 373, 377 (4th Cir. 2006).

5 Nevertheless, we may affirm the district court’s judgment “on any ground

apparent in the record.” United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 375

(4th Cir. 2015). Our review of the record reveals that the FDCPA claims against

Nationstar, Shapiro, and Rushmore were subject to dismissal for failure to state a

plausible claim for relief. See Iqbal, 556 U.S. at 663, 678 (stating standard).

Richardson’s allegations of § 1692g(b) violations fails to satisfy the pleading

requirements of the FDCPA. Richardson’s allegations of § 1692g(b) violations hinge on

his assertion that Defendants failed to adequately verify the debt in response to his

demands and continued collection attempts by pursuing foreclosure proceedings despite

the lack of adequate verification. However, these allegations are either too conclusory to

satisfy the pleading standard or fail to suggest that Defendants provided inadequate

validation. See Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999) (discussing

validation requirement under § 1692g).

Similarly, Richardson’s allegations of §§ 1692e and 1692f violations are

conclusory and factually implausible. Sections 1692e and 1692f prohibit debt collectors

from using “any false, deceptive, or misleading representation” as well as any “unfair or

unconscionable means” in connection with the collection of debt. Powell v. Palisades

Acquisition XVI, 782 F.3d 119, 123 (4th Cir. 2014) (alterations and internal quotation

marks omitted). But violations of those sections are not actionable unless the

misrepresentations are material. See Hahn v. Triumph P’ships LLC, 557 F.3d 755, 757-

58 (7th Cir. 2009); Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir. 2010);

Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596 (6th Cir. 2009). “The materiality

6 standard simply means that in addition to being technically false, a statement would tend

to mislead or confuse the reasonable unsophisticated consumer.” Wallace v. Wash. Mut.

Bank, F.A., 683 F.3d 323, 326-27 (6th Cir. 2012). Because Richardson’s complaint does

not articulate specific statements that amounted to misrepresentations or provide any

nonspeculative explanations for his assertions, Richardson fails to allege facts that satisfy

the materiality requirement. We therefore conclude the district court did not err in

dismissing these claims under Rule 12(b)(6).

Richardson next contends that the district court erred in dismissing his action

without providing him an opportunity to amend his complaint. While Richardson

requested an opportunity to amend if the court found his complaint deficient, he did not

move to amend the complaint or forecast any manner in which he would amend the

complaint to cure the deficiencies Defendants alleged. In such circumstances, “we do not

expect the district court to assume the role of advocate for the pro se plaintiff.” King v.

Rubenstein, 825 F.3d 206, 225 (4th Cir. 2016) (alteration and internal quotation marks

omitted). However, we conclude that the dismissal as to Nationstar, Shapiro, and

Rushmore should be one without prejudice. See Thomas v. Salvation Army S. Territory,

841 F.3d 632, 642 (4th Cir. 2016); King, 825 F.3d at 225.

Accordingly, we affirm the district court’s judgment but modify the dismissal as to

Nationstar, Shapiro, and Rushmore to reflect a dismissal without prejudice. We dispense

with oral argument because the facts and legal contentions are adequately presented in

the materials before this court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED