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Osinubepi-Alao v. Plainview Financial Services, Ltd.

United States District Court, D. Columbia.

May 29, 2014

OLUBUKUNOLA OSINUBEPI-ALAO, Plaintiff,
v.
PLAINVIEW FINANCIAL SERVICES, LTD., et al., Defendants

Page 85

For Olubukunola Osinubepi-Alao, Plaintiff: Reid D. Henderson, RDH LAW, PC, Washington, DC.

Page 86

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge.

The plaintiff, Olubukunola Osinubepi-Alao (" Alao" ), brings this action against Plainview Financial Services, Ltd. (" Plainview" ); Herbert A. Rosenthal, Chartered (" HARC" ); and two individuals, Herbert A. Rosenthal and Kevin Eddis, asserting claims for violations of: (1) the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (2012); (2) the District of Columbia Debt Collection Practices Act, D.C. Code § 28-3801-3819 (2012); and (3) the District of Columbia Consumer Protection Procedures Act, D.C. Code § 28-3901-3913 (2012); and also a claim for (4) malicious prosecution or abuse of process. See Amended Complaint (" Am. Compl." ) ¶ ¶ 81-120. Currently before the Court is Defendant Plainview Financial Services, Ltd. and Herbert A. Rosenthal, Chartered's Motion to Dismiss [the] Complaint

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(" Motion to Dismiss" ).[1] Upon careful consideration of the parties' submissions,[2] the Court concludes that for the following reasons it will grant in part and deny in part Defendant Plainview Financial Services, LTD. and Herbert A. Rosenthal, Chartered's Motion to Dismiss [the] Complaint.

I. BACKGROUND

The amended complaint contains the following allegations pertinent to the defendants' motion which, for the purposes of this opinion, the Court must accept as true. The defendants, Plainview and HARC, are Maryland corporations, Am. Compl. ¶ ¶ 5-6, " in the business of junk debt purchasing and debt collection in the District of Columbia," id. ¶ 5; see also id. ¶ 6. " HARC is also a law firm that practices in the District of Columbia." Id. ¶ 6. " [Herbert A.] Rosenthal . . . and Kevin Eddis are responsible for making all decisions for both HARC and Plainview, including whether to purchase debt portfolios and whether to initiate litigation." Id. ¶ 13. Furthermore, " [Herbert A.] Rosenthal is Plainview's President and sole shareholder," as well as " the president of HARC." Id. ¶ 12. HARC " use[s] the Plainview entity to create the appearance of legitimacy for [its] business practice of purchasing junk debt and filing lawsuits to collect [junk] debt[] [purchased by Plainview] through the courts." Id. ¶ 21. " Plainview is the alter ego of . . . HARC," and therefore " [a]ll actions [the plaintiff] ascribe[s] to Plainview are performed by HARC personnel." Id. ¶ ¶ 11, 15.

On June 30, 2011, the defendants " allegedly purchased the [plaintiff's Chase Bank USA, N.A. credit card debt] as a distressed debt." [3] Id. ¶ 32. " The alleged debt was primarily incurred [by the plaintiff] for personal, family[,] or household purposes." Id. ¶ 25. Included in the purported debt were assessments resulting from " fraudulent charges and unauthorized use" of the plaintiff's credit card. Id. ¶ 26. On October 4, 2011, the defendants filed a collection suit against the plaintiff in the Superior Court of the District of Columbia (" Superior Court" ) seeking payment of $12,582.20 along with a twenty-four percent interest assessment plus attorneys' fees in the amount of twenty percent of the balance owed (" Superior Court litigation" ). Id. ¶ ¶ 42-43. When the defendants initiated the Superior Court litigation, " [they had] not obtain[ed] account statements or undertake[n] other due diligence to determine whether there was unauthorized use on [the plaintiff's] account," nor did they " do anything to verify the accuracy of the [spreadsheet accounting for the plaintiff's debt] provided" to the defendant by a previous creditor. Id. ¶ ¶ 40-41. Service of process in the Superior Court litigation was effected on the plaintiff on October 30, 2011. Id. ¶ 55.

During the Superior Court litigation, Plainview submitted " an unsigned verification to the [c]omplaint by Herbert A. Rosenthal," [4]

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an affidavit of indebtedness signed by Kevin Eddis [5] asserting that he is the " Collection Manager and Authorized Representative of Plainview Financial Services," and a credit card member agreement as support for the attorneys' fees claim. See id. ¶ ¶ 44-49. The affidavit asserts facts about which the defendants do not have personal knowledge, and the credit card member agreement submitted in the Superior Court litigation does not govern the plaintiff's Chase Bank account.[6] See id. ¶ ¶ 66-67. On August 9, 2012, based on the defendants' representations, a Superior Court magistrate judge entered judgment in favor of Plainview for $12,582.20 plus post judgment interest at the rate of six percent. Id. ¶ 61. " On August 16, 2012, [the plaintiff] filed a pro se motion for [an] extension to file a motion for judicial review, which was granted on August 21, 2012." Id. ¶ 63. " On August 29, 2012, Plainview filed a writ of attachment on [the plaintiff's] wages, salary, and commission." Id. ¶ 62. The plaintiff subsequently " retained counsel and . . . filed a motion for judicial review [of the Superior Court litigation] on or about September 12, 2012," id. ¶ 63, which was granted on December 20, 2012, id. ¶ 64. " On January 2, 2013, the [Superior C]ourt entered an order reversing the magistrate judge's evidentiary rulings on a plain error basis and vacated the judgment in its entirety, stayed the writ of attachment, and remanded the case for a new trial." Id. After the plaintiff served written discovery on the defendants, they " moved to dismiss the lawsuit against [the plaintiff] with prejudice." Id. ¶ 65.

The plaintiff initiated this action on July 19, 2013, and she subsequently filed an amended complaint on July 23, 2013, which was identical to the complaint filed on July 19, 2013, other than providing the correct addresses for each of the defendants. Compare Compl., with Am. Compl. The amended complaint contains four counts. Count I asserts a claim under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, alleging that the defendants used false, deceptive, or misleading tactics to collect the alleged debt, misrepresented themselves, and attempted to collect an alleged debt and attorneys' fees that they were not authorized to receive. Am. Compl. ¶ ¶ 86-95. Count II asserts a claim under the District of Columbia Debt Collection Practices Act, D.C. Code § 28-3814, alleging that the defendants used fraudulent, deceptive, or misleading means to collect the debt, and attempted to collect

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costs not expressly authorized by the underlying credit agreement. Id. ¶ ¶ 100-03. Count III asserts a claim under the District of Columbia Consumer Protection Procedures Act, D.C. Code § 28-3901, alleging that the defendants engaged in unfair trade practices by misrepresenting material facts. See id. ¶ ¶ 106-12. And Count IV, asserts claims of malicious prosecution and abuse of process based on the defendants filing of the Superior Court proceedings and their conduct during those proceedings. See id. ¶ ...


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