Timothy Olson v. Midland Funding LLC , 578 F. App'x 248 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1040
TIMOTHY OLSON,
Plaintiff - Appellant,
v.
MIDLAND FUNDING, LLC; MIDLAND CREDIT MANAGEMENT, INC.; LYONS
DOUGHTY & VELDHUIS, P.C.,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:13-cv-01882-CCB)
Submitted: June 27, 2014 Decided: July 15, 2014
Before KING, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
E. David Hoskins, Max F. Brauer, THE LAW OFFICES OF E. DAVID
HOSKINS, LLC, Baltimore, Maryland, for Appellant. James P.
Ulwick, Amy E. Askew, KRAMON & GRAHAM, P.A., Baltimore,
Maryland; Ronald S. Canter, LAW OFFICES OF RONALD S. CANTER,
LLC, Rockville, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Olson appeals the district court’s order
dismissing his complaint. In his complaint, Olson alleged that
Midland Funding LLC (“Midland Funding”), Midland Credit
Management, Inc. (“MCM”), and Lyons, Doughty, & Velhuis, P.C.
(“LDV”) (collectively “Defendants”), violated the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692-1692p, the
Maryland Consumer Debt Collection Act (“MCDCA”), Md. Code Ann.,
Com. Law, § 14-201 to -204, and the Maryland Consumer Protection
Act (“MCPA”), Md. Code Ann., Com. Law, § 13-101 to –501 . Olson
argues that the district court improperly dismissed the majority
of his FDCPA claims as untimely and erroneously dismissed his
remaining federal and state law claims for failure to state a
claim. Finding no error, we affirm.
We review de novo a district court’s order dismissing
a complaint for failure to state a claim, assuming that all
well-pleaded nonconclusory factual allegations in the complaint
are true. Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir.
2011). In considering a Fed. R. Civ. P. 12(b)(6) motion, a
court “may consider the complaint itself and any documents that
are attached to it,” CACI Int’l, Inc. v. St. Paul Fire & Marine
Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009), as well as a
document attached to the Defendants’ motion to dismiss “if [the
document] was integral to and explicitly relied on in the
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complaint and if the plaintiff[] do[es] not challenge its
authenticity.” Am. Chiropractic v. Trigon Healthcare, Inc., 367
F.3d 212, 234 (4th Cir. 2004) (internal alterations and
quotation marks omitted). The district court here considered
the privacy notices attached to Olson’s complaint and the
letter, state court complaint, affidavit of service, and state
court docket attached to Defendants’ motions to dismiss.
Neither party has challenged this decision on appeal.
I.
A.
Olson first challenges the district court’s conclusion
that his FDCPA claims related to Defendants’ state court debt
collection lawsuit were untimely. A plaintiff must bring an
action under the FDCPA within one year of the alleged violation.
15 U.S.C. § 1692k(d). Olson argues that the statute of
limitations did not begin to run until August 22, 2012, when he
appeared in state court and demanded a trial.
We disagree. Defendants filed the lawsuit in Maryland
state court in December 2010. It is undisputed that Olson
became aware of the lawsuit in December 2010, contacted LDV
regarding the lawsuit throughout 2011, and participated in the
action in April 2012. Additionally, Defendants effected
substitute service at the address at which Olson requested
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service in February 2012. * All of this occurred more than one
year before Olson filed the complaint asserting his FDCPA claims
in May 2013.
Alternatively, Olson contends that Defendants engaged
in a continuing course of FDCPA violations, some of which
occurred inside the one-year limitations period, and thus the
limitations period was tolled for any violations outside that
period. He has not plausibly alleged, however, any violations
of the FDCPA that occurred within one year of the date he filed
his claims. Accordingly, we hold that the district court did
not err in concluding that Olson’s FDCPA claims regarding the
state court debt collection lawsuit were untimely.
B.
Next, Olson contends that MCM violated § 1692c(a)(2)
by sending a privacy notice directly to him, knowing that he was
represented by counsel. Olson first argues that the FDCPA bars
any communication with a represented debtor once the debt
collector has knowledge that the debtor has counsel. Even if
*
Olson abandoned his arguments, not raised until his reply
brief, that this service was not effective and that this Court
may not substitute its judgment for that of the state court,
which he alleges has already determined that service was not
effective. A Helping Hand, LLC v. Balt. Cnty., 515 F.3d 356,
369 (4th Cir. 2008) (“It is a well settled rule that contentions
not raised in the argument section of the opening brief are
abandoned.” (emphasis and internal quotation marks omitted)).
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the FDCPA does not bar all communications, he contends that the
privacy notice here was a communication “in connection with the
collection of any debt,” 15 U.S.C. § 1692c(a), and therefore
within the FDCPA bar.
We need not address Olson’s first argument, because we
conclude that the privacy notice was not a prohibited
communication under the FDCPA. In making this determination, we
consider “the absence of a demand for payment,” “[t]he nature of
the parties’ relationship,” and the objective “purpose and
context of the communication[].” Gburek v. Litton Loan
Servicing LP, 614 F.3d 380, 385 (7th Cir. 2010); see also Grden
v. Leiki Ingber & Winters PC, 643 F.3d 169, 173 (6th Cir. 2011)
(adopting Gburek factors). Applying these factors, we hold that
the privacy notice in the present case was not sent “in
connection with the collection of any debt.” While the only
relationship between Olson and MCM was that of a debtor and debt
collector, this relationship alone is not sufficient to
plausibly assert that a communication devoid of any reference to
Olson’s outstanding debt is made in connection with an attempt
to collect the debt. The website link provided in the
communication does not transform the privacy notice into an
attempt to induce payment. We therefore affirm the district
court’s conclusion that Olson failed to state a claim under the
FDCPA.
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II.
Finally, Olson argues that Defendants violated the
MCDCA and the MCPA by filing the state court debt collection
lawsuit without evidence to support the claim and by using a
“scattershot” litigation strategy. The MCDCA prohibits “a debt
collector . . . [from] claim[ing], attempt[ing], or
threaten[ing] to enforce a right with knowledge that the right
does not exist.” Md. Code Ann., Com. Law § 14-202(8). Under
Maryland law, a plaintiff must allege “that defendants acted
with knowledge that the debt was invalid, or acted with reckless
disregard as to its validity.” Lembach v. Bierman, 528 F. App’x
297, 304 (4th Cir. 2013) (internal quotation marks omitted). A
violation of the MCDCA is a per se violation of the MCPA. See
Md. Code Ann., Com. Law § 13-301(14)(iii).
We conclude that Olson cannot plausibly allege that
Defendants knew or should have known that Midland Funding did
not have the right to file the state court debt collection
lawsuit or to seek an affidavit judgment. Olson never alleged
that he did not owe the debt or that Midland Funding did not own
the debt. He has alleged only that Midland Funding failed to
prove in the state court lawsuit Olson’s indebtedness and
Midland Funding’s ownership of the debt. The fact that Midland
Funding was ultimately denied an affidavit judgment does not
establish that it knew or should have known at the time it filed
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suit that it could not seek to collect the debt. Cf. Heintz v.
Jenkins, 514 U.S. 291, 296 (1995) (“[W]e do not see how the fact
that a lawsuit turns out ultimately to be unsuccessful could, by
itself, make the bringing of it an ‘action that cannot legally
be taken.’”). We therefore conclude that Olson failed to
plausibly allege a violation of the MCDCA and, consequently, a
violation of the MCPA.
III.
Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
Court and argument will not aid the decisional process.
AFFIRMED
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