Mostofi v. Midland Funding, LLC

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1084
September Term, 2014
_________________________
REZA MOSTOFI
v.
MIDLAND FUNDING, LLC, ET AL.
_________________________
Zarnoch,
Berger,
Nazarian,
JJ.
_________________________
Opinion by Nazarian, J.
_________________________
Filed: July 2, 2015
Reza Mostofi appeals from the decision of the Circuit Court for Montgomery
County to dismiss his Second Amended Complaint against Midland Funding, LLC
(“Midland Funding”), Midland Credit Management, Inc. (“Midland Credit”), and Lyons,
Doughty & Veldhuis, P.C. (“Lyons”) (collectively, the “appellees”) with prejudice.1 Mr.
Mostofi alleged that the appellees committed violations of the Fair Debt Collection
Practices Act (the “FDCPA”) and analogous state statutes in the course of purchasing
consumer credit card debt Mr. Mostofi had incurred, attempting to collect that debt, and
suing (successfully) to reduce that debt to judgment in an earlier case (the “collection
case”). We agree with the circuit court that Mr. Mostofi cannot attack that judgment
collaterally, and we affirm its decision to dismiss this case.
I. BACKGROUND
On November 12, 2012, Lyons brought the collection case in the District Court of
Maryland for Montgomery County against Mr. Mostofi and on behalf of its clients,
Midland Funding and Midland Credit. The complaint alleged that Mr. Mostofi owed
$4,506.82 on a credit card account with Chase Bank, N.A. (“Chase”), and that Midland
Funding had purchased the debt from Chase. Although the record does not contain a
transcript, Mr. Mostofi’s Notice of Intent to Defend raised the two arguments he asserts
here: that he “is not indebted to [Midland Funding] as alleged” and that Midland Funding
1
Mr. Mostofi’s Complaint also named Steven Brunzell as a defendant, but Mr. Brunzell is
not a party to this appeal.
“does not have standing to sue.” It is less clear whether he articulated these arguments at
the hearing in the district court. But there is no dispute that the district court entered
judgment for Midland Funding and Midland Credit in the amount of $4,506.82, plus costs,
on July 26, 2013.
It is equally undisputed that Mr. Mostofi appealed the judgment to the Circuit Court
for Montgomery County, where the case was heard de novo on October 31, 2013. Again,
Mr. Mostofi challenged Midland Funding’s standing to sue him, and he offered evidence
that, he argued, demonstrated that the debt belonged to Washington Mutual, if to anyone:
MR. MOSTOFI: [Y]our honor, what you’re looking at is a
statement from Washington Mutual.
THE COURT: I understand that.
MR. MOSTOFI: And it has the same account number that
[counsel] alleges was Chase card.
THE COURT: Okay.
MR. MOSTOFI: And my point is that if this wasn’t a
Washington Mutual I wouldn’t have a statement saying that it
was a Washington Mutual card.
THE COURT: Okay.
MR. MOSTOFI: So at some point, apparently, allegedly, it
transferred from Washington Mutual to Chase, but there is no
bill of sale showing that occurred. And in order for them to
show standing and the fact that they are the rightful owner, they
need to show the proper chain of assignments.
Lyons offered affidavits from Midland Funding employees to prove that it owned
the debt, and Mr. Mostofi sought to cross-examine the affiants. It appears that the court
2
rejected this request, and, in any event, that the affiants were not present. Mr. Mostofi also
disputed the amount owed, and identified what he claimed were inconsistencies between
statements about amounts owed as principal or interest. Lyons attempted to demonstrate
that the debt was accurate by calling Mr. Mostofi to the stand and asking him details about
several of the charges, with mixed success.
Based on the evidence, the circuit court ruled from the bench, and stated on the
record that it ultimately disbelieved Mr. Mostofi and credited documents that Midland
Funding offered into evidence but are not part of the record here:
The court has had an opportunity—has received into evidence
[Midland Funding’s] Exhibit Number 1, which is a document
which contains voluminous references to this account, the
Chase account, with [Mr. Mostofi’s] name and account number
on it, with multiple charges that [Mr. Mostofi] has testified he
doesn’t have any specific recollection of having used, which
begs credulity at a minimum.
* * *
The court is satisfied that [Midland Funding] has met its
burden, and proven that they are the owner of the debt and the
court will enter judgment in favor of [Midland Funding] in the
amount of . . . $4,506.82 plus costs.
Mr. Mostofi moved to set aside or vacate the judgment on December 5, 2013. The
record here does not reveal a ruling on that motion or whether Mr. Mostofi appealed the
judgment; the appellees proffer that the motion was denied and that Mr. Mostofi did not
3
appeal.2 Regardless, there is no dispute that the judgment in the collection case became,
and for our purposes is, final.
Mr. Mostofi filed the Complaint in this case on November 27, 2013, before he filed
his motion to set aside or vacate the judgment in the collection case. He amended the
Complaint twice, and the Second Amended Complaint named Midland Funding, Midland
Credit, and Lyons as defendants. As before, in the Complaint he contends that Midland
Funding does not own his debt and that the amount allegedly owed was false. He
complained that he had been deprived of the opportunity to cross-examine Midland
Funding’s affiants—whom he characterized as “trial witnesses”—in violation of his due
process rights. He argued that because Midland Funding did not own the debt, lacked
standing to sue him and that the judgment in the collection case was void. And he alleged
that Midland Funding and Midland Credit’s assertions that they owned the debt, and the
amount of the debt—as well as Lyons’s prosecution of the case on these grounds—
constituted “false, deceptive, or misleading representations,” through which the appellees
violated the FDCPA, the Maryland Consumer Debt Collection Act, and the Maryland
Consumer Protection Act.
Midland Funding, Midland Credit, and Lyons all moved to dismiss. Midland
Funding and Midland Credit argued that Mr. Mostofi’s claims were barred by res judicata
and collateral estoppel, and that in the alternative, he had failed to state a claim for which
2
And the Judiciary’s case search database confirms that it was denied on March 11, 2014.
4
relief could be granted. Lyons asserted that it had never been served in this case, and as
such, filed its Motion before the Second Amended Complaint.
The circuit court held a hearing on the Motions on July 16, 2014. Counsel for Lyons
proffered that he had brought the firm’s receptionist, who was not authorized to receive
service on its behalf, and who would testify that the sheriff who allegedly served Lyons
incorrectly left the papers with her instead. When pressed, Mr. Mostofi said that he would
“accept [Lyons’s] word for it.” Although he asked for another opportunity to serve Lyons,
the court granted Lyons’s Motion to Dismiss. The court then heard argument from Midland
Funding and Midland Credit, and rebuttal from Mr. Mostofi, focusing particularly on the
res judicata and collateral estoppel effects of the judgment in the collection case.
Ultimately, the court held that to the extent Mr. Mostofi stated claims,3 they were barred:
[A]pplying the relevant Maryland standard, I am
persuaded of two things. One[:] the matters that [Mr. Mostofi]
in this case seeks to relitigate [were] either actually raised or
should have been raised in the [the collection case], and
whether respectfully the decisions [the court] made were
correct or incorrect—I don’t need to analyze that. What I need
to analyze is, and I have, what was presented to [the court] and
what [it] decided. That [it] issued a judgment which is now
final by virtue of the fact that no timely petition was filed to
the Court of Appeals for writ of certiorari. In addition to that,
having reviewed the case law by my federal colleagues—Judge
Day, the Fourth Circuit, and other magistrate judge opinions—
3
The Court did not elaborate as to which rationale supported the dismissal of which
arguments. Because we hold that Mr. Mostofi’s claims are barred by res judicata and
collateral estoppel, we do not reach the question of whether or not he has stated a claim for
which relief may be granted, except to the extent we examine his reference to Bock v.
Pressler & Pressler, 30 F. Supp. 3d 283 (D.N.J. 2014), below.
5
I choose to agree with their reasoning about what one has to
plead in terms of the elements of the claims of the federal
statute or statutes at issue.
. . . So for those reasons, plus the reasons set out largely
by Midland in their papers and as supplemented by counsel’s
argument, Madam [Clerk], the Motion is granted. The Second
Amended Complaint is dismissed with prejudice and without
leave to amend.
Mr. Mostofi filed a timely notice of appeal.
II. DISCUSSION
Mr. Mostofi raises four questions for our review:
1. Did the Circuit Court err in dismissing [Mr. Mostofi’s] claim
for declaratory relief seeking to collaterally attack a void
judgment entered by another court, which lacked subject-
matter jurisdiction at the time it entered its judgment, and acted
in a manner inconsistent with due process?
2. Did the Circuit Court err in dismissing [Mr. Mostofi’s] claim
for violations of the [FDCPA], the Maryland Consumer Debt
Collection Act and the Maryland Consumer Protection Act,
arising out of Appellees’ conduct in an underlying debt
collection action, based on the doctrines of res judicata and
claim preclusion, when under Maryland law [Mr. Mostofi] was
not required to litigate his statutory claims as counter claims in
the underlying collection action?
3. Did the Circuit Court err in dismissing [Mr. Mostofi’s]
Complaint for failing to state a claim upon which relief can be
granted for violations of the [FDCPA], the Maryland
Consumer Debt Collection Act and the Maryland Consumer
Protection Act when [Mr. Mostofi’s] operative Complaint
alleged, inter alia, that Appellees brought an improper debt
collection action against [Mr. Mostofi], while they knew they
did not own the alleged debt, and in addition intentionally
misstated and inflated the principal amount of the debt?
6
4. Did the Circuit Court abuse its discretion by dismissing [Mr.
Mostofi’s] Complaint against Appellee Lyons pursuant to Md.
Rule 2-507(b) when the case had been improperly removed to
a federal court and subsequently remanded, [Mr. Mostofi] had
diligently made attempts to effectuate service, Appellee Lyons
had not been prejudiced, and dismissal of his claims prevents
[Mr. Mostofi] from re-filing the complaint as the statute of
limitations expired shortly after [Mr. Mostofi] filed his initial
Complaint?
Mr. Mostofi argues that the judgment entered against him in the collection case was
a void judgment subject to collateral attack, and therefore is not barred by principles of res
judicata, because Midland Funding was never assigned his debt and lacked standing to
collect or sue on it. He further argues that the appellees are, in fact, liable under the FDCPA
and the parallel state statutes, and that he was not compelled to litigate his claims as
compulsory counterclaims under Maryland law. And although Mr. Mostofi does not
concede that he failed to effect service on Lyons, he argues that if he had, the circuit court
abused its discretion by dismissing the case against the firm.
Midland Funding and Midland Credit argue that res judicata and collateral estoppel
barred Mr. Mostofi’s claims, and dismissal was proper. They argue in the alternative that
the circuit court properly dismissed the Second Amended Complaint because Mr. Mostofi
had failed to state a claim for which relief may have been granted. Finally, Lyons simply
argues that it was not served.
We review the circuit court’s decisions de novo:
In reviewing a lower court’s ruling on a motion to dismiss, we
must determine whether the court was “legally correct.” We
accept all well-pled facts in the complaint, and reasonable
7
inferences drawn from them, in a light most favorable to the
nonmoving party. We also interpret Maryland case law to
review whether the lower courts’ conclusions were correct as
a matter of law.
Cochran v. Griffith Energy Services, Inc., 426 Md. 134, 139 (2012) (internal quotation
marks and citations omitted). We may affirm even if a trial court has not provided the
preferred legal conclusions for the result:
[A]n appellate court will affirm a circuit court’s judgment on
any ground adequately shown by the record, even one upon
which the circuit court has not relied or one the parties have
not raised. Therefore, it is within our province to affirm the
trial court if it reached the right result for the wrong reasons.
Monarc Const., Inc. v. Aris Corp., 188 Md. App. 377, 385 (2009) (quoting Pope v. Board
of Sch. Comm’rs, 106 Md. App. 578, 591 (1995) (citation omitted)).
We note at the outset that Mr. Mostofi’s claims reach us in a rare posture: there are
no findings of fact for us to review, but the collection case was fully litigated and the time
for appeal has passed. The findings of fact in that case do not exist in a vacuum. We must
determine what bearing they have on Mr. Mostofi’s present case, and ultimately, whether
principles of res judicata or collateral estoppel bar this case based on the result of the
collection case. Together, they do.
A. Res Judicata Bars Mr. Mostofi’s Collateral Attack on His
Debt.
Res judicata and collateral estoppel are also known by their more descriptive names:
claim preclusion and issue preclusion. Claim preclusion means a party can no longer bring
a claim because
8
a judgment between the same parties and their privies is a final
bar to any other suit upon the same cause of action, and is
conclusive, not only as to all matters that have been decided in
the original suit, but as to all matters which with propriety
could have been litigated in the first suit.
Lizzi v. Wash. Metro. Transit Authority, 384 Md. 199, 207 (2004) (quoting Alvey v. Alvey,
225 Md. 386, 390 (1961)). Issue preclusion means that if a previous case took place
between the same parties or their privies, and the fact-finder made a finding that was
“essential to” the judgment entered, all future cases between those parties are stuck with
that finding and cannot re-litigate the question. Welsh v. Gerber Products, Inc., 315 Md.
510, 516 (1989). In sum, claim preclusion bars litigation of claims, whereas issue
preclusion generally bars re-litigation of facts. 4 These two doctrines serve the same
judicial policy: “that the losing litigant deserves no rematch after a defeat fairly suffered,
in adversarial proceedings, on issues raised, or that should have been raised.” Colandrea
v. Wilde Lake Community Ass’n, Inc., 361 Md. 371 (2000).
When a party is sued, and that party could bring a permissive counterclaim, he or
she is not required to “raise or waive” that counterclaim unless successful prosecution of
it would nullify the other party’s claim:
(1) Where the defendant may interpose a claim as a
counterclaim but he fails to do so, he is not thereby
precluded from subsequently maintaining an action on
that claim, except as stated in Subsection (2).
4
This is an oversimplification—issue preclusion can bar re-litigation of legal conclusions
as well. We need not dive deeper into the murky interstices for the purposes of this case,
though.
9
(2) A defendant who may interpose a claim as a counterclaim
in an action but fails to do so is precluded, after the
rendition of judgment in that action, from maintaining an
action on the claim if:
(a) The counterclaim is required to be interposed by a
compulsory counterclaim statute or rule of court, or
(b) The relationship between the counterclaim and the
plaintiff's claim is such that successful prosecution of
the second action would nullify the initial judgment or
would impair rights established in the initial action.
Rowland v. Harrison, 320 Md. 223, 232 (1990) (quoting Restatement 2d of Judgments
(1982) (Emphasis in original)). Rowland involved a veterinarian who sued to collect
unpaid fees. Id. at 225-26. Ms. Rowland, the pet owner, claimed that Dr. Harrison had
provided negligent care, and initially intended to raise his negligence as both a defense and
a counterclaim. Id. However, Ms. Rowland ultimately asked the trial court to dismiss her
counterclaim without prejudice because she could not gather the necessary evidence or
expert testimony to pursue it fully in time for the debt collection action. Id. at 226-27. The
trial court agreed, and granted Ms. Rowland’s motion. Id. at 227. But when she re-filed
her negligence claim in a new complaint, the trial court granted summary judgment against
her on claim preclusion/res judicata grounds. Id. at 227-28.
10
The Court of Appeals reversed. Deciding as a matter of law that the “issue of
negligence was [n]either litigated [n]or determined by [the trial court] in the debt action,”5
the Court held that the trial court “was in error when [it] concluded that the Maryland
counterclaim rule is compulsory and required that [Ms. Rowland] assert her malpractice
claim in Harrison’s debt action or lose her right to litigate that matter under the doctrine of
res judicata.” Id. at 230-31. Rather, the Court held that Maryland Rule 2-331, “Maryland’s
counterclaim rule, by its plain terms, is permissive and not mandatory.”6 Id. at 233. The
Court, adopting the Restatement 2d of Judgments’ approach, held that a subsequent
counterclaim is precluded only where the claim “would nullify the initial judgment or
would impair rights established in the initial judgment.” Id. at 236. Alternately quoting
and paraphrasing comment f of §22(2)(b) of the Restatement, the Court explained that
Comment f gives examples of subsequent judgments which
would nullify previous judgments such as “allowing the
5
Even though Ms. Rowland had raised negligence as a defense in the debt collection
action, the Court held that there was no evidence in the record before it that the trial court
had made any determinations regarding the defense. Rowland, 320 Md. at 230.
6
Maryland Rule 2-331 reads:
A party may assert as a counterclaim any claim that party has
against any opposing party, whether or not arising out of the
transaction or occurrence that is the subject matter of the
opposing party's claim. A counterclaim may or may not
diminish or defeat the recovery sought by the opposing party.
It may claim relief exceeding in amount or different in kind
from that sought in the pleading of the opposing party.
Md. Rule 2-331(a).
11
defendant to enjoin enforcement of the [previous] judgment, or
to recover on a restitution theory the amount paid pursuant
to the judgment (see Illustration 9), or by depriving the plaintiff
in the first action of property rights vested in him under the first
judgment (see Illustration 10).” Illustration 2, which refers to
comment f, recognizes that after receiving a default judgment
against a patient for medical services rendered, the patient may
subsequently maintain a malpractice action, but “is precluded .
. . from seeking restitution of any amount paid pursuant to the
[previous] judgment.”
Id. at 237. The Court observed that “[w]ere Rowland to successfully prosecute her
malpractice action against Harrison, she would be entitled to whatever amount of damages
are determined, but could not recover the fees paid for the treatment of the horse.” Id. The
Court held, therefore, that Dr. Harrison’s debt collection action did not bar Ms. Rowland’s
subsequent malpractice action. Id.
1. Res Judicata Bars Collateral Attack on the
Underlying Judgment.
Mr. Mostofi’s first contention on appeal is that the judgment in the collection case
is void because the debt at issue was owned by Washington Mutual, and although Midland
Funding claimed that it purchased his debt from Chase, Midland Funding lacked standing
to sue him. Because Mr. Mostofi’s explicit purpose for making this argument is to render
the collection case’s judgment a nullity, he is on the wrong side of Rowland. He cites
extensively from our opinion in Finch v. LVNV Funding LLC, 212 Md. App. 748 (2013),
arguing that a void judgment “may be assailed at all times,” and “[i]t does not constitute
res judicata.” But Finch is inapposite—unlike that one, this judgment is not void.
12
Finch concerned an unlicensed debt collector, LVNV. Id. at 752-753. LVNV had
purchased the debts of Finch, and co-appellant Dorsey, by assignment. Id. at 752. LVNV
won uncontested default judgments against both appellants at the district court. Id. Later,
Finch and Dorsey filed a putative class-action against LVNV, and sought, among other
things, to attack the judgments against them. Id. at 752-53. The circuit court dismissed
the action, id. at 753, but we reversed, holding that a collection action on behalf of an
unlicensed collector is akin to a judgment won by an unlicensed attorney and, therefore,
void. Finch, 212 Md. App. at 761 (“Much like a complaint filed by a non-lawyer, a
complaint filed by an unregistered collection agency is a nullity, and any judgment entered
on such a complaint is void.” (internal quotation marks and citation omitted)).
This case is different. While we did hold in Tucker v. Tucker, 35 Md. App. 710
(1977), that “a judgment is void unless the court which renders it has jurisdiction over the
parties or the property,” we went on to hold that res judicata can preclude a collateral attack
on jurisdictional grounds:
Although a judgment would otherwise be void because of the
lack of jurisdiction of the court over the parties or over
the subject matter, and would therefore be open to collateral
attack, [] if the court determines that it has jurisdiction, the
parties may be precluded from collaterally attacking the
judgment on the ground that the determination by the court of
its jurisdiction is res judicata between them.
Id. at 712-13 (quoting Restatement of Judgments §5(j) (1942)). We then cited from the
Court of Appeals’ decision in Messall v. Merlands Club, Inc.:
13
We might also point out that it seems to be well established
that where the issue of jurisdiction is raised and determined in
favor of the jurisdiction, the ensuing judgment on the merits is
not open to later collateral attack on the jurisdictional issue,
whether or not the determination therein was erroneous.
Id. at 713 (quoting 244 Md. 18, 36 (1966)).
Unlike in Finch, where the appellants collaterally attacked judgments that had been
uncontested, Mr. Mostofi concedes in his brief that he raised his lack of standing argument
in the collection case:
Because Chase did not own the debt and lacked the
power to assign it Midland Funding was not the legal holder of
the alleged debt. As such, Midland Funding did not have
standing to sue [Mr.] Mostofi and the trial [court] did not have
subject-matter jurisdiction to enter judgment in the underlying
debt collection action.
During trial in the debt collection action [Mr.] Mostofi
produced evidence supporting his position that Chase did not
have the power to assign the alleged debt to Midland Funding
because Chase was not an assignee of the debt.
The transcript from the circuit court also bears this out—Mr. Mostofi handed the court
Washington Mutual statements bearing his account number, and argued that Midland
Funding had failed to prove chain of custody.
The trial court ruled against Mr. Mostofi, and found for Midland Funding on the
ownership point. Having failed to convince one trial court that jurisdiction was a problem,
and having failed to appeal, Mr. Mostofi does not get another bite at the apple, even if we
14
were to assume that he was right (and we do not) about who owned his debt. His collateral
attack on the underlying debt judgment, then, is barred under res judicata.7
2. Res Judicata Does Not Bar the FDCPA and
Maryland Statutory Claims.
The collection case judgment does not, however, share the same congruence with
the statutory claims in this case. The FDCPA bars “any false, deceptive, or misleading
representation or means in connection with the collection of any debt.” 15 U.S.C. §1692e.
It also creates an independent statutory remedy for aggrieved debtors. 15 U.S.C. §1692k.
That remedy is not limited, nor is it technically tied in any way, to the alleged debt:
Except as otherwise provided by this section, any debt
collector who fails to comply with any provision of this
subchapter with respect to any person is liable to such person
in an amount equal to the sum of—
(1) any actual damage sustained by such person as a result
of such failure;
7
We note also that Mr. Mostofi challenges the validity of the collection case judgment by
renewing his argument that he should have been granted the opportunity to cross-examine
Midland Funding’s affiants in small claims court. In support, he cites Director of Patuxent
Institution v. Daniels, 243 Md. 16 (1966), and Ross v. Mr. Lucky, LLC, 189 Md. App. 511
(2009). Daniels held that the Due Process rights of a party facing civil commitment were
not violated when he was denied the opportunity to cross-examine a declarant in court. 243
Md. at 45-46. Ross, on the other hand, affirmed a nearly 50-year-old precedent that
administrative agencies performing an adjudicatory function must “afford[] interested
parties a reasonable right to cross-examine witnesses” in such proceedings. 189 Md. App.
at 522. But neither of these cases, nor any other authority that we have found, required the
district court in the collection case—a small claims proceeding to which the rules of
evidence do not apply, Md. Rule 3-701—to compel Midland Funding to bring its affiants
for cross-examination or entitled Mr. Mostofi to cross-examine them.
15
(2)(A) in the case of any action by an individual, such
additional damages as the court may allow, but not
exceeding $1,000; or
(B) in the case of a class action, (i) such amount for each
named plaintiff as could be recovered under
subparagraph (A), and (ii) such amount as the court may
allow for all other class members, without regard to a
minimum individual recovery, not to exceed the lesser of
$500,000 or 1 per centum of the net worth of the debt
collector; and
(3) in the case of any successful action to enforce the
foregoing liability, the costs of the action, together with a
reasonable attorney's fee as determined by the court. On a
finding by the court that an action under this section was
brought in bad faith and for the purpose of harassment, the
court may award to the defendant attorney's fees reasonable
in relation to the work expended and costs.
Id.
The Maryland Consumer Debt Collection Act bars a debt collector from, among
other things, “claim[ing], attempt[ing], or threaten[ing] to enforce a right with knowledge
that the right does not exist.” Md. Code (1975, 2013 Repl. Vol.), §14-202 of the
Commercial Law Article (“CL”). It, too, creates a statutory remedy for victims. See CL
§14-203 (“A collector who violates any provision of this subtitle is liable for any damages
proximately caused by the violation, including damages for emotional distress or mental
anguish.”). Finally, the Maryland Consumer Protection Act bars any “false, falsely
disparaging, or misleading oral or written statement, visual description, or other
representation of any kind which has the capacity, tendency, or effect of deceiving or
16
misleading consumers,” and any “failure to state a material fact if the failure deceives or
tends to deceive.” CL §13-301. It also creates a statutory remedy for victims. See CL
§13-408 (“any person may bring an action to recover for injury or loss sustained by him as
the result of a practice prohibited by this title.”).
As Mr. Mostofi argues, a claim for a violation of the FDCPA is not necessarily a
claim that the underlying debt being collected does not exist or has been misrepresented.
See Senftle v. Landau, 390 F. Supp. 2d 463, 469-70 (D. Md. 2005) (“When a[n] FDCPA
claim concerns collection activities, a[n] FDCPA claim does not arise out of the transaction
creating the debt. Indeed, even if the Circuit Court correctly determined that the underlying
debt was valid, Maryland rules of res judicata would not preclude [a consumer] from later
seeking damages against creditors for illegally collecting that debt.” (citations omitted)).
Therefore, FDCPA claims are not necessarily barred by the doctrine of res judicata/claim
preclusion if they are not asserted, because they do not attack a debt collection judgment
per se. We have held that the same reasoning is applicable to the Maryland Consumer
Debt Collection Act, see McKlveen v. Monika Courts Condominium, 208 Md. App. 369,
382-83 (2012), and there is no relevant difference for the Consumer Protection Act.
When a party tries to use one of these statutes to attack a judgment against him or
her collaterally, however, res judicata/claim preclusion normally bars the attack. See
Green v. Ford Motor Credit Co., 152 Md. App. 32 (2003) (holding that while “collection
practices prohibited by the FDCPA have no effect on whether a debt is owed,” a claim
under the concurrent state statutes seeking to nullify a prior judgment was barred under res
17
judicata). Mr. Mostofi claims that this is not such a case, and that “[t]he only relief
requested by [him] is the award of statutory and actual damages, costs and attorney’s fees,
if any.” We have our doubts, given Mr. Mostofi’s reference in his brief to the judgment
against him as “void.” But assuming, without deciding, that his use (as an unrepresented
litigant) of the word “void” was not meant to conflate his (barred) claims about the
underlying debt with his FDCPA claims, Mr. Mostofi’s FDCPA and related claims would
not be defeated by res judicata, and Midland Funding and Midland Credit’s citations to
Green are unavailing.
B. Mr. Mostofi’s FDCPA and State Claims Against Midland
Funding and Midland Credit Were Properly Dismissed
With Prejudice Under Collateral Estoppel.
The foregoing stretch doesn’t help Mr. Mostofi for long, however: his FDCPA
claims, and all others with respect to Midland Funding and Midland Credit, are defeated
by the parallel doctrine of issue preclusion/collateral estoppel, which bars re-litigation of
facts. “[W]hen [an] issue of fact . . . is actually litigated and determined by a valid final
judgment, and that determination is essential to the judgment, the determination is
conclusive in a later action between the parties, whether the same or different claim is
asserted.” Colandrea, 361 Md. at 391 (quoting Potomac Design, Inc. v. Eurocal Trading,
Inc., F.Supp.364 (D. Md. 1993)). We recently affirmed a four-part test to determine
whether or not issue preclusion would apply to previously litigated facts:
1. Was there a final judgment on the merits in the prior
litigation?
18
2. Was the party against whom the plea is asserted a party or
in privity with the party to the prior adjudication?
3. Was the issue decided in the prior litigation identical with
the issue presented in the subsequent litigation?
4. Was the issue actually litigated essential to the judgment
in the prior action?
GAB Enterprises, Inc. v. Rocky Gorge Development, LLC, 221 Md. App. 171, 187 (2015).
Mr. Mostofi’s FDCPA and related claims—while asserted for the first time at trial
in this case as opposed to the collection case—are all predicated on allegations decided
against him in the collection case. Mr. Mostofi claims, for example, that Midland Funding
misrepresented the amount of debt he owes, and that Midland Funding was never assigned
the debt in the first place. But in the collection case, the court entered a judgment for
Midland Funding and against Mr. Mostofi for a sum certain, despite the fact that Mr.
Mostofi disputed Midland Funding’s ownership of the debt. In so doing, the court satisfied
all four GAB Enterprises prongs for the debt amount, and whether Midland Funding owned
it, and Mr. Mostofi is precluded from re-litigating these issues.
The only other allegation upon which Mr. Mostofi bases his FDCPA and related
state claims is his assertion that counsel for Midland in the collection case “could not
establish that a meaningful review of [Mr.] Mostofi’s file occurred before filing suit.” He
proffers that “the operative complaint alleges that [counsel] also signed thousands of other
complaints filed the same month as the complaint filed against [Mr.] Mostofi.”
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Mr. Mostofi ascribes significance to this allegation based on his interpretation of a
single case from the District of New Jersey, which has since been appealed to the Third
Circuit, Bock v. Pressler & Pressler, 30 F. Supp. 3d 283 (D.N.J. 2014). In Bock, a law firm
generated complaints for debt collection actions in a manner that “almost entirely
involve[d] automation and non-attorney personnel.” Id. at 287. The attorney of record in
Mr. Bock’s collection action conceded that he reviewed the complaint he filed against Bock
for “no more than four seconds,” and that Bock’s complaint was one of 673 he reviewed
that day. Id. at 305. In a case of first impression, the District of New Jersey held that it
was a violation of the FDCPA to file a complaint under these circumstances, because such
a filing implied meaningful attorney involvement when there was none. Id. at 306.
We have not adopted the reading of the FDCPA advanced in Bock, and we decline
to do so today. But even if we had, Mr. Mostofi’s allegations, taken as true, do not save
his FDCPA claim, nor his state claims. The sum total of Mr. Mostofi’s allegations about
counsel for Midland Funding that have not already been precluded is his unsupported
assertion that “[Counsel] signed thousands of other complaints filed the same month as the
complaint filed against [Mr.] Mostofi.” This is not conclusive of the question of meaningful
attorney involvement. Counsel for Midland Funding could have worked every day that
month at twelve hours a day, and turned out 2000 complaints, giving him a full eleven
minutes per complaint on average, compared to Bock’s four seconds. Counsel could have
short-shrifted every other complaint filed that month and spent hours working on Mr.
Mostofi’s, and that would still be consistent with the facts Mr. Mostofi has alleged. On a
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Bock theory—which again, we have not adopted—it is still Mr. Mostofi’s burden to allege
actual facts that, if believed, would demonstrate a lack of meaningful attorney involvement
in his case. Md. Rule 2-305 (“A pleading that sets forth a claim for relief . . . shall contain
a clear statement of the facts necessary to constitute a cause of action.”). He has failed to
do so. And this case is hardly rocket science—the appellees alleged, and proved in the
collection case, that they acquired a credit-card debt that remained unpaid, and it did not
require complicated pleadings or cutting-edge research to prepare the case for filing or trial.
Given that issue preclusion has barred the only potentially viable allegations against
Lyons, Mr. Mostofi’s contentions regarding dismissal for failure to serve are moot. He is
barred from asserting his FDCPA and related state claims on the bases he has chosen, and
dismissal with prejudice was proper.
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
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