Friday, February 19, 2021

Ellis v. Palisades Acquisition XVI LLC, and Protas, Spivok & Collins, LLC (Maryland U.S.D.C.)


Filed: July 26, 2019

Opinion: Chief Judge James K. Bredar


(1) Defendants’ motion for summary judgement is denied because issues of intent, knowledge, and identity of debt are all factual issues that require discovery;

(2) Defendants’ motion to dismiss the Fair Debt Collection Practices Act (FDCPA) claim is denied because the claim is not barred by the statute of limitations and the complaint properly alleged that the debt at issue was incurred for “personal, family, or household purposes.”

(3) Defendants’ motion to dismiss the claim under the Maryland Consumer Debt Collection Act (MCDCA) is granted in part, and denied in part, because plaintiff could only plausibly allege that one of the defendants had knowledge that the underlying debt had been previously collected.

(4) Violation of the MCDCA is a per se violation of the Maryland Consumer Protection Act (MCPA) preventing dismissal of Plaintiff’s MCPA claim.

(5) Plaintiff failed to state a cause of action for abuse of process.


Donald Ellis (“Plaintiff”) sued Palisades Acquisition LLC (“Palisades”) and Protas, Spivok & Collins, LLC (“Protas,” and collectively with Palisades, “Defendants”) alleging that Defendants attempted to collect a debt that Plaintiff did not owe, and consequently violated the FDCPA and Maryland state law. Plaintiff had a credit card with Providian Bank that was used primarily for personal, family, or household purposes. Plaintiff incurred a debt on the credit card upon which a judgment was obtained. Defendant Palisades ultimately became the owner of the Plaintiff’s debt.  

Palisades retained Asset Acceptance to collect the debt. Plaintiff paid Asset Acceptance to satisfy the debt; however, Palisades did not file a satisfaction of judgment in Maryland court acknowledging the payment. Instead, Palisades retained Defendant Protas, a law firm, to collect the debt for the second time. Plaintiff was unaware that Protas was attempting to collect the same debt as Asset Acceptance and filed a Motion for an Exemption from Garnishment.  Defendants, in the second attempt to collect the debt, obtained a garnishment order that was executed against Plaintiff’s bank account resulting in the funds being withdrawn and an overdraft charge against Plaintiff.

Alleging that Defendants were attempting to collect the same debt twice, Plaintiff filed this action claiming violations of the FDCPA, the MCDCA, the MCPA, and abuse of process. Defendants moved for summary judgement on all claims, or in the alternative, moved to dismiss the claims for failure to state a claim.


The court denied the Defendants’ motion for summary judgment because the Plaintiff raised issues that were genuinely in dispute and requiring discovery. Contrary to Plaintiff’s allegations, Defendants asserted that the debt at issue was actually two different debts. However, whether the debt is actually two debts or a single debt is a factual issue. Furthermore, Plaintiff is required to prove Defendants’ knowledge and intent as elements of the claims. Such factual issues preclude summary judgment.

Alternatively, the Defendants’ motion to dismiss was denied in part because Plaintiff plausibly alleged violations of the FDCPA and Maryland state law.

Defendants argue that Plaintiff’s FDCPA claim is barred by the one-year statute of limitations. However, while the Defendants’ attempt to collect the debt twice began more than a year before the suit was instituted, the Plaintiff asserts that he was unaware, and could not have reasonably known, that the debt being collected was the same in both instances. Thus, the discovery rule tolled the statute of limitations and the suit was properly brought within the limitations period.

Plaintiff also sufficiently alleged that Defendants violated the FDCPA. Violations of the FDCPA require the debt at issue to be incurred primarily for “personal, family or household purposes . . . .” 15 U.S.C. §1692(a). Plaintiff’s bald assertion that the credit card was used for personal, family, or household purposes, as required by the statute, is sufficient on its own to survive Defendants’ motion to dismiss.

The court granted Defendants’ motion to dismiss Plaintiff’s MCDCA claims as to Defendant Protas, but denied as to Defendant Palisades.  Violation of the MCDCA requires Plaintiff to prove that the Defendants knew that collection of the debt was improper. The court held that Plaintiff sufficiently alleged that Palisades knew collection of debt the second time was improper because it could be inferred that Asset Acceptance – the entity first contracted to collect the debt – informed Palisades of its successful collection of the debt. However, it was not alleged that Defendant Protas, who was subsequently contracted to collect the debt, had any knowledge of any previous efforts to collect the debt at issue. As such, the knowledge element required to be pled under the MCDCA had been met as to Defendant Palisades, but not as to Defendant Protos. Thus, the court granted Defendants’ motion to dismiss the MCDCA claim as to Defendant Protas.

The court denied the Defendants’ motion to dismiss the MCPA claims on the grounds that violation of the MCDCA is a per se violation of the MCPA.

Finally, the court granted the Defendants’ motion to dismiss Plaintiff’s abuse of process claim because Plaintiff failed to allege facts to support that Defendants instituted the action to satisfy an ulterior motive or that Plaintiff was damaged by Defendants’ perverted use of process.

 The full opinion is available in PDF

No comments:

Post a Comment

Please Post Comments Here