United States District Court, D. South Carolina, Charleston Division
Alan G. Nix, Plaintiff,
McCabe Trotter & Beverly, P.C. and Todd M. Musheff LLC, Defendant.
ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE
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.
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,  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). 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.)
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.)
Motion to Dismiss
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.
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.
Pro Se Pleadings
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 ...