Gerald Lembach v. Howard Bierman

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1723

GERALD A. LEMBACH; DEBBIE L. LEMBACH,

Plaintiffs - Appellants,

and

MARJORIE STEWART; JAY NACHBAR,

Plaintiffs,

v.

HOWARD NORMAN BIERMAN; GEORGE JACOB GEESING; CARRIE MICHELE
WARD; BIERMAN, GEESING, WARD & WOOD, LLC,

Defendants - Appellees.

No. 12-1746

GERALD A. LEMBACH; DEBBIE L. LEMBACH,

Plaintiffs - Appellees,

and

MARJORIE STEWART; JAY NACHBAR,

Plaintiffs,

v.

HOWARD NORMAN BIERMAN; GEORGE JACOB GEESING; CARRIE MICHELE
WARD; BIERMAN, GEESING, WARD & WOOD, LLC,

Defendants – Appellants.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:10-cv-02822-RWT)

Argued: March 20, 2013 Decided: June 12, 2013

Before KING, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Scott Craig Borison, LEGG LAW FIRM, LLC, Frederick,
Maryland, for Appellants/Cross-Appellees. J. Jonathan Schraub,
SANDS, ANDERSON, PC, McLean, Virginia, for Appellees/Cross-
Appellants. ON BRIEF: Phillip Robinson, LEGG LAW FIRM, LLC,
Frederick, Maryland, for Appellants/Cross-Appellees. Paige Levy
Smith, SANDS, ANDERSON, PC, McLean, Virginia, for
Appellees/Cross-Appellants.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Appellants Gerald and Debbie Lembach appeal the district

court’s dismissal of their amended complaint. This action began

as a class action when the Lembachs, along with other

plaintiffs, filed this suit against Appellees Howard Bierman,

George Geesing, Carrie Ward, and the law firm of Bierman,

Geesing, Ward & Wood (collectively BGWW). All allegations in

this case arise from the debt collection activities taken by

BGWW in initiation of foreclosure proceedings against the

Lembachs. Based on BGWW’s actions, the Lembachs bring claims

alleging violations of the Fair Debt Collection Practices Act

(FDCPA), 15 U.S.C. § 1692 et seq., the Maryland Consumer

Protection Act (MCPA), and the Maryland Consumer Debt Collection

Act (MCDCA). The district court found that the Lembachs failed

to state a claim upon which relief could be granted and

dismissed the action in its entirety. BGWW cross-appeals the

district court’s finding that the Lembachs’ amended complaint

was timely under the FDCPA. For the reasons that follow, we

affirm.

I.

We review a district court’s grant of a motion to dismiss

de novo. Gilbert v. Residential Funding, LLC, 678 F.3d 271, 274

3
(4th Cir. 2012). To survive a motion to dismiss, a complaint

must contain sufficient factual matters, accepted as true, to

state a claim for relief that is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On appeal, this

Court draws all reasonable inferences in favor of the appealing

parties. Id. However, this Court “‘need not accept the legal

conclusions drawn from the facts,’ and ‘[it] need not accept as

true unwarranted inferences, unreasonable conclusions, or

arguments.’” Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.

2008)(quoting E. Shore Mkts. v. J.D. Assocs. Ltd. P’ship, 213

F.3d 175, 180 (4th Cir. 2000)).

This action arose when BGWW sought to foreclose on the

Lembachs’ property in Anne Arundel County, Maryland. The

Lembachs fell behind on the mortgage payments for their

property, and after this the lender, Duetsche Bank, appointed

BGWW as substitute trustee under the deed of trust. Bierman,

Geesing, and Ward are attorneys in Maryland, and their firm then

initiated foreclosure proceedings against the Lembachs. Under

Maryland law, certain documents must be filed to initiate

foreclosure proceedings. Allegedly, BGWW has failed to

personally execute these requirements. Instead, employees

signed their signatures, and notaries attested that the

documents were personally signed when they were not. BGWW filed

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the first Order to Docket on September 28, 2009, and then

dismissed the proceeding on December 14, 2009. BGWW filed a

second Order to Docket the foreclosure proceeding on March 17,

2010, which the state court later dismissed. The Lembachs

allege that BGWW relied on fraudulent documents, specifically

the Order to Docket and other papers containing false signatures

of the trustees, in the second foreclosure proceeding. No

foreclosure action is currently pending against the Lembachs.

All of these actions were supposedly taken to expedite the

foreclosure process; however, the documents are factually

correct as to the existence of debt and delinquency of the

Lembachs.

When the Lembachs discovered that the foreclosure filing

BGWW made included falsely executed signatures that were

required to foreclose on their home, they brought suit in the

district court seeking damages. The Lembachs claim that BGWW

violated the FDCPA by threatening to take and actually taking

actions that they could not take when they docketed the

foreclosures with “false, defective, bogus, fabricated, or

counterfeit affidavits.” Second, the Lembachs argue that the

filing of court documents with false signatures violates the

MCPA because it constitutes an unfair and deceptive trade

practice containing misrepresentations on which they relied to

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their injury. Third, the Lembachs claim that BGWW violated the

MCDCA when it sought to foreclose on their property knowing that

“that right did not exist.” Fourth, the Lembachs claim that the

district court erred when it failed to apply the doctrine of

non-mutual collateral estoppel based upon a Maryland Circuit

Court ruling. The Lembachs argue that the circuit court’s

decision precludes relitigation of the issue of the propriety of

allowing others to sign documents that are submitted to the

court. Lastly, the Lembachs argue that the district court erred

when it decided not to certify a question to the Maryland Court

of Appeals. In addition to the Lembachs’ claims, BGWW cross-

appeals the district court’s finding that the Lembachs’ FDCPA

cause of action was timely. The Lembachs counter that their

filing was timely because they could not discover the “robo-

signed” Orders to Docket until after the documents had actually

been docketed on October 13, 2010.

The district court dismissed all the claims set forth in

the Lembachs’ amended complaint, finding that (1) the Lembachs

failed to show that BGWW violated the FDCPA because the alleged

misrepresentations were not material; (2) the Lembachs failed to

sufficiently allege elements of their Maryland state law causes

of action; and (3) the Lembachs’ FDCPA causes of action were

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timely filed. Finding no error in the district court’s rulings,

we affirm.

II.

A.

The Lembachs first argue that the district court erred in

dismissing their FDCPA claims because the signatures were

material violations of the FDCPA. “The FDCPA protects consumers

from abusive and deceptive practices by debt collectors, and

protects non-abusive debt collectors from competitive

disadvantage.” United States v. Nat'l Fin. Servs., Inc., 98

F.3d 131, 135 (4th Cir. 1996). The Lembachs allege violations

of 15 U.S.C. §§ 1692e(5), 1692e(10), and 1692f. The relevant

portions of § 1692e provide:

A debt collector may not use any false, deceptive, or
misleading representation or means in connection with
the collection of any debt. Without limiting the
general application of the foregoing, the following
conduct is a violation of this section . . .

(5) The threat to take any action that cannot legally
be taken or that is not intended to be taken . . .

(10) The use of any false representation or deceptive
means to collect or attempt to collect any debt or
obtain information concerning a customer.

15 U.S.C. § 1692e. Section 1692f states, “A debt collector may

not use unfair or unconscionable means to collect or attempt to

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collect any debt.” BGWW argues that the FDCPA claims must be

dismissed because (1) the Lembachs’ claims are time barred, (2)

the alleged violations of the FDCPA are not material, and (3)

the Lembachs fail to articulate a separate § 1692f claim. As an

initial matter, we will address BGWW’s cross-appeal that argues

that the FDCPA claims are time barred.

BGWW argues that the Lembachs failed to initiate this case

within the one-year statute of limitation for FDCPA claims. See

15 U.S.C. § 1692k(d). Under the FDCPA “[an] action to enforce

any liability created by this subchapter may be brought . . .

within one year from the date on which the violation occurs.”

Id. BGWW notes that the Lembachs were served foreclosure papers

on September 28, 2009, and the complaint in this case was not

filed until October 13, 2010. On the other hand, the Lembachs

argue that fraud could only be discovered after the docketing of

the “robo-signed” documents and as such the statute of

limitations could not begin to run until after October 13, 2009.

Ordinarily, the statute of limitations begins to run when

communication that violates the FDCPA is sent. Akalwadi v. Risk

Mgmt. Alts., Inc., 336 F. Supp. 2d 492, 501 (D. Md. 2004).

However, in this case, the district court applied the discovery

rule and held that an FDCPA claim accrues at the time of the

violation or when the plaintiff should have known of the

8
violation. The discovery rule provides that a limitations

period does not begin to run until the plaintiff knows or has

reason to know of the injury that is the basis of the lawsuit.

Mangum v. Action Collection Serv., Inc., 575 F.3d 935, 940 (9th

Cir. 2009).

The only circuit to address whether to apply the discovery

rule to an FDCPA action has concluded that it should apply. See

id. The Ninth Circuit noted, “[F]ederal law determines when the

limitations period begins to run, and the general federal rule

is that ‘a limitations period begins to run when the plaintiff

knows or has reason to know of the injury which is the basis of

the action.’” Id. at 940 (quoting Norman–Bloodsaw v. Lawrence

Berkeley Lab., 135 F.3d 1260, 1266 (9th Cir. 1998)) (internal

quotation marks omitted). Although not embracing a general

discovery rule, the Supreme Court in TRW Inc. v. Andrews, 534

U.S. 19 (2001), “observed that lower federal courts ‘generally

apply a discovery accrual rule when a statute is silent on the

issue,’” id. at 27 (quoting Rotella v. Wood, 528 U.S. 549, 555

(2000)).

We see no reason not to apply the discovery rule to this

case. The Lembachs had no way of discovering the alleged

violation until they actually saw the fraudulent signatures on

the docketing material. Further, BGWW should not be allowed to

9
profit from the statute of limitations when its wrongful acts

have been concealed. As the Supreme Court held in Bailey v.

Glover, 88 U.S. 342 (1875), “where the party injured by the

fraud remains in ignorance of it without any fault or want of

diligence or care on his part, the bar of the statute does not

begin to run until the fraud is discovered,” id. at 348. We

hold that the Lembachs’ filing was timely because they filed

within one year of the time that they discovered (or could have

discovered) the fraud.

B.

We now consider whether a misrepresentation under 15 U.S.C.

§ 1692e must be material in order for a violation of the FDCPA

to occur. The Fourth Circuit has adopted the “least

sophisticated consumer” standard to determine if a § 1692e

violation has occurred. Nat'l Fin. Servs., Inc., 98 F.3d at

135–36. Under this standard, a false statement that would not

mislead the “least sophisticated consumer” is not actionable.

Recently, when applying this standard, courts have reasoned that

a statement must be materially false or misleading to violate

the FDCPA. See, e.g., Donohue v. Quick Collect, Inc., 592 F.3d

1027, 1033 (9th Cir. 2010); Hahn v. Triumph P’ships LLC, 557

F.3d 755, 757-58 (7th Cir. 2009); Miller v. Javitch, Block &

10
Rathbone, 561 F.3d 588, 596 (6th Cir. 2009). BGWW argues that

the misrepresentations on the documents are not material and are

insufficient to maintain an FDCPA claim. BGWW reasons that the

method of applying signatures to an otherwise correct document

is immaterial to the debtor. The Lembachs counter that the

signatures are material because without them the foreclosure

cases would not be in court at all.

In Hahn, the Seventh Circuit concluded that a false or

misleading statement is not actionable under § 1692e unless it

is material, observing that “[m]ateriality is an ordinary

element of any federal claim based on a false or misleading

statement.” 557 F.3d at 757. The Seventh Circuit framed

materiality as a corollary to the well-established proposition

that “[i]f a statement would not mislead the unsophisticated

consumer, it does not violate the [Act]-even if it is false in

some technical sense.” Id. at 758. Thus, “[a] statement cannot

mislead unless it is material, so a false but non-material

statement is not actionable.” Id.

In Warren v. Sessoms & Rogers, P.A., 676 F.3d 365 (4th Cir.

2012), this Court dealt with a violation of § 1692e. At issue

in Warren was a specific subsection that required a disclosure

by which the collector failed to abide. Because there was no

statement in Warren, there was no further implied limit of

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materiality. However, this Court implied that for every other

section that punishes an affirmative statement there may be a

limit of materiality. Id. at 374. This Court stated,

“Generally, § 1692e prohibits debt collectors from using ‘any

false, deceptive, or misleading representation or means in

connection with the collection of any debt.’” Id. Section

1692e also provides a non-exhaustive list of “conduct” that

satisfies the general prohibition. The court went on to cite

Hahn, Donohue, and Miller. Id. We are persuaded by the

discussion in Warren and this Court’s further citation to Hahn,

Donahue, and Miller, and this leads us to the conclusion that to

plead a claim of false representation under the FDCPA, the party

must show that the representations are material.

Although we do not look favorably upon improper behavior by

attorneys, we ultimately cannot find that the misrepresentations

BGWW made are material because they have no connection to the

debt at issue in this case. The Lembachs were unquestionably in

default, and the documents correctly stated the debt. The

Lembachs fail to allege how they, or any consumer, would be

misled by a signature by someone other than the trustee that is

affixed to a document that was substantively correct. See

Harvey v. Great Seneca Corp., 453 F.3d 324, 332 (6th Cir. 2006)

(dismissing plaintiff’s allegation that defendant violated the

12
FDCPA when she “never denied in her complaint that she owed

[defendant] a debt, nor did she claim [defendant] misstated or

misrepresented the amount that she owed”). We recognize the

fact that the trustee’s signature was required under the

Maryland rules to file a foreclosure action. However, the fact

that Maryland has adopted foreclosure regulations that address

the particularities of filing a foreclosure action has no

bearing on whether a signature is material under federal law.

Because the signatures have no connection to the debt, and the

Lembachs fail to show how the fraudulent signatures would

mislead even the least sophisticated consumer, their claim

fails.

C.

The Lembachs next argue that the use of false signatures by

BGWW violates 15 U.S.C. § 1692f because it constitutes unfair or

unconscionable means of collecting debt. The “Unfair Practices”

section of the FDCPA prohibits debt collectors from using

“unfair or unconscionable means to collect or attempt to collect

any debt.” 15 U.S.C. § 1692f. Although not exhaustive, the

statute does provide a list of conduct that violates the

section. Id. Additionally, the section allows the court to

punish any other unfair or unconscionable conduct not covered by

the FDCPA. Id. The district court dismissed the § 1692f claims

13
because there were no allegations of any unfair or

unconscionable conduct distinct from the § 1692e allegations,

and for the same reasons the allegations could not be material

to the Lembachs.

In Donohue, the Ninth Circuit, relying on Hahn and Miller,

held that “false but non-material representations are not likely

to mislead the least sophisticated consumer and therefore are

not actionable under §§ 1692e or 1692f.” 592 F.3d at 1033.

This Court has also recognized “that violations grounded in

‘false representations’ must rest on material

misrepresentations.” Warren, 676 F.3d at 374. Because the

Lembachs’ claim undoubtedly rests on “false misrepresentations,”

the Lembachs must, once again, show that this misrepresentation

was material to support their § 1692f claim. As we have already

concluded, the Lembachs have failed to plead any material

violations. Necessarily, their § 1692f claim fails as well.

Further, the Lembachs fail to demonstrate any conduct that would

be violative of § 1692f. Instead, the Lembachs rely on

fraudulent signatures, the same alleged misconduct that

undergirds their § 1692e claim. As noted above, the courts use

§ 1692f to punish conduct that FDCPA does not specifically

cover. Because the Lembachs rely on conduct that is covered by

§ 1692e and do not allege any separate or distinct conduct to

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support a § 1692f violation, their claim fails for this reason

as well.

III.

Next, we turn to the Lembachs’ claims that arise under

state law. The district court chose to retain supplemental

jurisdiction in furtherance of fairness, convenience, and

consideration of judicial economy. The district court went on

to conclude that the Lembachs failed to allege any violation of

the MCPA or the MCDCA.

The MCPA was intended to provide minimum standards for the

protection of consumers in Maryland. Lloyd v. Gen. Motors

Corp., 916 A.2d 257, 276 (Md. 2007). The Lembachs argue that

the false signatures constitute an unfair and deceptive trade

practice made to them on which they relied to their injury. See

Md. Code Ann., Com. Law § 13-301. However, section 13–104

exempts various professional services, including lawyers’

services, and this is fatal to the Lembachs’ claim. Id. § 13–

104(1). The Lembachs attempt to avoid this bar by claiming that

the attorneys “were not acting within the scope of their license

as attorneys” when they were acting as trustees in the

foreclosure proceedings. We are not persuaded. The only

Maryland appellate court to address the issue, in Scull v.

15
Doctors Groover, Christie & Merritt, P.C., 45 A.3d 925 (Md. Ct.

Spec. App. 2012), found the exemption applicable to indirect

professional services, id. at 932. Given the plain language of

the Act exempting attorneys and considering the fact that

Maryland courts have applied the exemption broadly, we need not

belabor the point. Attorneys are clearly not within the scope

of the Act, and because of this the Lembachs’ cause of action

fails.

Next, the Lembachs bring a claim pursuant to the MCDCA.

Under the MCDCA, a debt collector may not “claim, attempt, or

threaten to enforce a right with knowledge that the right does

not exist.” Md. Code Ann., Com. Law § 14-202(8). The Lembachs

claim that BGWW “violated the MCDCA by claiming, attempting, or

threatening to enforce rights with the knowledge that the right

did not exist.” Maryland courts have consistently interpreted

the MCDCA to require plaintiffs to allege that defendants acted

with knowledge that the “debt was invalid, or acted with

reckless disregard as to its validity.” Shah v. Collecto, Inc.,

No. DKC 2004-4059, 2005 WL 2216242, at * 11 (D. Md. Sept. 12,

2005). BGWW argues that the Lembachs have failed to show the

knowledge element of a MCDCA claim and notes that the Lembachs

concede that the right to foreclose on their property existed.

BGWW’s argument is persuasive.

16
 First, the Lembachs fail to show any evidence that BGWW had

any reason to doubt the validity of the debt and its right to

foreclose upon it. In fact, the Lembachs concede that BGWW has

this right. This situation is simply not within the ambit of

MCDCA. The MCDCA allows recovery for abusive practices, or when

the debt collector seeks to collect on a debt when he or she

knows (or should know) that he or she does not have a right to

do so. Here, the Lembachs dispute only the signatures on the

documents, and the MCDCA does not allow for recovery for an

error in the process of collecting this legitimate and

undisputed debt.

IV.

Next, the Lembachs take issue with the district court’s

decision when it chose not to apply non-mutual collateral

estoppel based on a circuit court order. In Geesing v. Willson,

No. 13-C-10-82594 (Md. Cir. Ct. 2010), the Howard County court

dismissed the foreclosure action after finding that the

documents were not properly signed because the signatures did

not comply with Maryland’s procedural requirements for filing a

foreclosure action. The Lembachs submit that this ruling

prevents BGWW from relitigating the propriety of the signatures.

17
 Non-mutual offensive use of collateral estoppel occurs when

a plaintiff seeks to foreclose a defendant from relitigating an

issue the defendant has previously litigated unsuccessfully in

another action against a different party. In Parklane Hosiery

Co. v. Shore, 439 U.S. 322 (1979), the Supreme Court held that

federal “trial courts [have the] broad discretion to determine

when [offensive use of collateral estoppel] should be applied,”

id. at 331. According to Maryland law, a party must meet a

four-prong test before a court may permit the use of collateral

estoppel:

1. Was the issue decided in the prior adjudication
identical with the one presented in the action in
question?

2. Was there a final judgment on the merits?

3. Was the party against whom the plea is asserted a
party or in privity with a party to the prior
adjudication?

4. Was the party against whom the plea is asserted
given a fair opportunity to be heard on the issue?

Rourke v. Amchem Prods., Inc., 835 A.2d 193, 205 (Md. Ct. Spec.

App. 2003).

We agree with the district court, as we see no need to

apply the doctrine of collateral estoppel. Initially, as noted

by BGWW, other circuit courts within Maryland in foreclosure

cases initiated by Geesing—one the appellees here—have held to

the contrary and refused to dismiss the foreclosure. See
18
Geesing v. Jones, No. CAE 10-08803 (Md. Cir. Ct. 2011) (Prince

George’s County Court). Even if we were to disregard the fact

that the courts of equal jurisdiction within Maryland disagree

on the proper result when documents are fraudulently signed, the

Lembachs fail to show how collateral estoppel is applicable in

this case. First, there was no final judgment on the merits in

the Howard County Geesing case, there was a dismissal without

prejudice. Second, the issues in the cases are not identical.

The circuit court addressed only the fact that the signatures

were an improper means of procedurally filing a foreclosure

action and that the remedy was to dismiss the action. The

circuit court simply dismissed the foreclosure action; it did

not determine the defective signatures gave the plaintiffs any

rights of action or any independent claims, which the Lembachs

are seeking here. Further, the remedy was dismissal of the

foreclosure action. Here, there is no pending foreclosure

action for us to consider. We are unsure of exactly what result

the Lembachs are seeking in asking this Court to apply

collateral estoppel to the circuit court’s order, but as noted

above, were we to apply the doctrine, it is of absolutely no

help to the Lembachs’ case. Accordingly, we find no error in

the district court’s refusal to apply collateral estoppel.

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 V.

Finally, the Lembachs take issue with the district court’s

decision declining to certify questions to the Maryland Court of

Appeals. The Lembachs contend that if this Court adopts the

materiality reasoning of the district court then we should

certify the question of whether the false signatures on the

affidavits were material to the foreclosure action. We review

the district court’s decision not to certify a question to the

Maryland Court of Appeals for an abuse of discretion. See Nat'l

Capital Naturists, Inc. v. Bd. of Supervisors, 878 F.2d 128, 132

(4th Cir. 1989). This Court has held that “[o]nly if the

available state law is clearly insufficient should the court

certify the issue to the state court.” Roe v. Doe, 28 F.3d 404,

407 (4th Cir. 1994).

We need not certify the question of materiality to the

Maryland Court of Appeals because we, and the district court for

that matter, find ample grounds under state law to dismiss the

Lembachs’ claims. The state law claims in this case can be

easily resolved without any reference to whether the signatures

were material. Specifically, the Lembachs have no claim under

the MCPA because all of the appellees are attorneys and are

therefore exempt from the scope of the act. Next, the Lembachs

have no claim under the MCDCA because they failed to show

20
knowledge that BGWW did not have the right to take foreclosure

actions. Because the district court had ample alternative

grounds for dismissing the state law claims, we decline the

Lembachs’ invitation to certify a question to the Maryland Court

of Appeals.

VI.

Finding no error in the district court’s decision, this

case is

AFFIRMED.

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