Wednesday, August 11, 2010

Abdou-Malik Yacoubou Adam v. Wells Fargo Bank, N.A. (Maryland U.S.D.C.)

Filed: July 28, 2010

Opinion by Judge J. Frederick Motz

Held: A complaint alleging alleging the defendant harassed the plaintiff with dozens of phone calls every week states a claim for strict liability for malicious conduct under the Fair Debt Collection Practices Act.

Facts: The plaintiff owned a property with a mortgage serviced by the defendant. In June 2008, the defendant began charging $22.42 more per month after receiving updated tax information. The plaintiff disputed the increase and made payments under the original monthly rate. The plaintiff and the defendant agreed to a loan modification agreement in November 2008 regarding payments beginning in January 2009. However, the plaintiff's January payment was returned. Upon inquiry, the plaintiff was informed the loan modification agreement was null and void and he needed to sign another contract. The defendant rejected the plaintiff's February payment for an amount equaling two months payment under the loan modification agreement. The plaintiff then "began to receive regular harassing phone calls from the defendant threatening foreclosure."

The plaintiff sued for, among other things, compensation of injuries arising out of the revised loan modification agreement. The defendant moved under Rule 12(b)(6) to dismiss counts II and V of the plaintiff's complaint, alleging discrimination on the basis of race, religion or national origin and strict liability for malicious conduct.

Analysis: To state a "claim of discrimination in lending practices, a plaintiff must allege (1) that plaintiff is a member of a protected class who sought a loan for property; (2) that plaintiff qualified for a loan; (3) that a bank denied plaintiff's application; and (4) that other similarly situated applicants who were not in the protected classes received loans or were treated more favorably." The plaintiff's claim was dismissed because he failed to plead sufficient facts to permit a conclusion that discrimination was a factor.

With respect to the strict liability claim, the Court agreed with the defendant that the plaintiff's allegation of strict liability is not a recognized common law tort cause of action in Maryland. However, the Court, after providing some assistance to the pro se plaintiff's argument, permitted the plaintiff's claim that the defendant's alleged harassment states a plausible claim under the Fair Debt Collection Practices Act. The Act is a strict liability statute. And, it prohibits the defendant's use of repeated telephone calls with the intent to "annoy, abuse, or harass," allegations made in the plaintiff's complaint. The Court denied the defendant's motion to dismiss the plaintiff's strict liability count.

The full opinion is available in pdf.

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