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Nix v. McCabe Trotter & Beverly, P.C.

United States District Court, D. South Carolina, Charleston Division

October 23, 2018

Alan G. Nix, Plaintiff,
McCabe Trotter & Beverly, P.C. and Todd M. Musheff LLC, Defendant.



         This matter is before the Court on the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 26) recommending that the Court grant Defendants' Motion to Dismiss (Dkt. No. 9). For the reasons set forth below, the Court adopts the R & R as the order of the Court.

         I. Background

         Plaintiff Alan G. Nix owns a home subject to the Churchill Park Homeowners' Association, Inc., ("Churchill") a homeowners' association ("HOA") that charges annual assessments pursuant to the HOA's covenants and restrictions ("CRs"). (Dkt. No. 1-1 at 5, 16, 59.) The HOA employs Defendant McCabe, Trotter & Beverly, P.C. ("MTB") to represent it in the collection of assessments. (Id. at 6) As of April 18, 2016, MTB sent a Verification of Debt letter to Plaintiff, stating that he owed $4, 386.20 to the HOA, including $2, 561.75 in attorneys' fees and costs. (Dkt. No. 1-1 at 61.) On May 4, 2017, Todd. M. Musheff ("Musheff), whose law firm is named as a Defendant here, [1] appeared on behalf of MTB at a hearing in state court. (Id. at 12.) At that hearing, when asked by the judge, Mr. Musheff remarked that Plaintiff owed "$5, 000, in that ballpark," which included $2, 561.75 in attorneys' fees and costs in addition to Plaintiffs allegedly unpaid assessments. (Mat 3.)

In relevant part, the Churchill CRs state that
Late Charges: All assessments, shall accrue late charges, interest.. .costs, including, without limitation, reasonable attorneys fees actually incurred. The assessments and charges shall be a continuing lien upon the Lot against which each assessment is made, and shall also be the personal obligation of the person who was the Owner of such Lot at the time the assessment fell due.

(Dkt. No. 9 at 9) (emphasis added).[2] In the event an Owner fails to pay assessments due for ten days or longer, the CRs go on to state that "a lien shall attach" for "all assessments then due or which come due until the lien is cancelled of record, and any other amounts provided in this Declaration or permitted by law." (Id.) (emphasis added). After thirty days, the HOA may foreclose on the lien. (Id.)

         Plaintiff alleges that Defendant violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, by attempting to collect attorneys' fees where his account at Churchill only showed "$2, 209.08" owed, and also for stating that he owed "$5, 000, in that ballpark," during a court hearing. (Dkt. No. 1-1 at 6 -7.) The Magistrate Judge recommended granting the motion to dismiss, and Plaintiff filed objections. (Dkt. Nos. 26, 30.)

         II. Legal Standard

         A. Motion to Dismiss

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal if the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits of the claim, or the applicability of defenses.... Our inquiry then is limited to whether the allegations constitute 'a short and plain statement of the claim showing that the pleader is entitled to relief" Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation marks and citation omitted). In a 12(b)(6) motion, the Court is obligated to "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). However, while the Court must accept the facts in a light most favorable to the non-moving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id.

         To survive a motion to dismiss, the complaint must state "enough facts to state a claim to relief that is plausible on its face." Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570(2007). Although the requirement of plausibility does not impose a probability requirement at this stage, the complaint must show more than a "sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the pleading "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

         B. Pro Se Pleadings

         This Court liberally construes complaints filed by pro se litigants to allow the development of a potentially meritorious case. See Cruz v. Beto,405 U.S. 319 (1972); Haines v. Kerner,404 U.S. 519 (1972). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a viable claim, nor can the Court assume the existence of a genuine ...

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