No. ___________
___________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
___________________________________________
HERBERT GUSTAVUS SOWE,
Petitioner,
v.
RONNIE EBONY TURNER, et al.,
Respondents.
___________________________________________
On Petition for Writ of Certiorari to the
Appellate Court of Maryland
___________________________________________
PETITION FOR A WRIT OF CERTIORARI
___________________________________________
HERBERT GUSTAVUS SOWE
11620 Reisterstown Road #210
Reisterstown, Maryland 211136-6222
443-381-9311
Boltondeltadifiumail.com
Petitioner, pro se
QUESTIONS PRESENTED
- The Maryland Consumer Debt Collection Act applies to Child Support.
- Whether the Judge(s) of the Appellate Court of Maryland abused their discretion when they incorrectly applied the abuse of discretion standard
- Whether the Judge(s) of the Appellate Court of Maryland violated their oaths of office when they incorrectly applied the abuse of discretion standard.
LIST OF PARTIES
All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows:
Herbert Gustavus Sowe – Petitioner
Ronnie Ebony Turner – Respondent
Baltimore County Office of Child Support- Respondent
TABLE OF CONTENTS
PETITION FOR A WRIT OF CERTIORARI. 2
RELEVANT STATUTORY PROVISIONS. 2
REASONS FOR GRANTING THE WRIT. 4
- The Maryland Consumer Debt Collection Act applies to Child Support 4
- The Judge(s) of the Appellate Court of Maryland abused their discretion when they incorrectly applied the abuse of discretion standard. 5
CONCLUSION & PRAYER FOR RELIEF. 7
TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. City of Bessemer City, N.C., 470 U.S. 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)….. 5
Andrews & Lawrence Pro. Servs. v. Mills, 223 A.3d 947, 950 (Md. 2020)………………………………… 4
Awah v. Capital One Bank, NA, 2015 WL 302880, at *4, n.8 (D. Md. Jan. 22, 2015)…………………. 4
Bond v. Nibco, Inc., 96 Md. App. 127,134–36 (1993)……………………………………………………………… 6
Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)…………….. 5
Jones v. Mid-Atlantic Funding Company, 362 Md. 661, 675 (Md. 2001)…………………………………… 6
Lockett v. Blue Ocean Bristol, LLC, 132 A. 3d 257, 272 (Md. 2016)………………………………………… 4
Pak v. Hoang, 835 A.2d 1185, 1191 (Md. 2003)…………………………………………………………………….. 4
Seaboard Surety Co. v. Richard F.Kline, Inc., 91 Md. App. 236, 244, 603 A.2d 1357(1992)….. 6
U.S. v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009)………………………………………………………… 5
Statutes
28 U.S. Code § 453…………………………………………………………………………………………………………….. 7
Md. Code Ann, Com. Law, 14-201(b)…………………………………………………………………………………… 4
Md. Code Ann., Com. Law, l4-202(10)…………………………………………………………………………………. 5
Md. Code, Com. Law 14-202(8)…………………………………………………………………………………………… 4
PETITION FOR A WRIT OF CERTIORARI
Petitioner respectfully petitions for a writ of certiorari to review the judgment of the Appellate Court of Maryland, No. ACM-REG-2045-2022.
OPINION BELOW
The opinion of the Appellate Court of Maryland at Appendix A, is unpublished.
JURISDICTION
The decision of the Appellate Court was entered on June 30, 2023. This Court has jurisdiction under 28 U.S.C. § 1257.
RELEVANT STATUTORY PROVISIONS
Md. Code, Com. § 14-201 provides that a “Collector” is “a person collecting or attempting to collect an alleged debt arising out of a consumer transaction.”
STATEMENT OF THE CASE
This case concerns proceedings that were conducted in the Maryland State Courts. Petitioner received an Income Withholding for Support NCP dated September l3, 2022. The Income Withholding was in addition to the $950.00 Child Support payment that the Petitioner is remitting monthly via the CSEA. The only difference was that the CSEA wanted an additional $450.00 monthly on top of the $950.00 monthly Child Support amount that they were already collecting from Petitioner.
Petitioner filed Motion for Modification on January l4, 2019. Consequently, on April 4, 2019, Petitioner filed and served request to set Hearing/Trial on the Motion to Modify Child Support. Court Hearing was scheduled. Petitioner attended the scheduled Court Hearing only to learn that it was postponed without any notice sent to him. However, it was reported that it was held and concluded when in actuality it never occurred. No court hearing was ever scheduled after the postponement, which necessitated Petitioner to request Verification and Validation of Debt, since Petitioner was unemployed during this period. Petitioner can prove his reported Federal and State Income Tax earnings for the years he was unemployed.
On May 12, 2020 and July 28, 2022 an Exception to the Magistrate’s Ruling was filed with the Circuit Court. Once again, it was postponed/reset with no rulings, and with no good cause. Once again, Petitioner requested Debt Verification and Validation of the Debt following his receipt of the Withholding for Support NCP dated September 13, 2022. Petitioner responded with Notice of Opportunity to Prove Claim dated October 5, 2022 providing the Child Support Enforcement Administration thirty days to respond to the Validation of the Debt and Proof of Claim. No response was ever received. Thereafter, Petitioner sent follow-up Letter entitled “Following-Up on Notice of Opportunity to Prove Claim Presentment Income Withholding for Support NCP”, dated November 12, 2022. During this period an additional fifteen days was provided following the initial thirty days provided. Once again, this gave them the opportunity to Validate the Debt and Prove the Claim. No response was ever received.
After 45 days of not receiving any response from the CSEA validating the debt and proving the claim, Petitioner resorted to filing Motion for Summary Judgment showing that there is no genuine issue of material fact. Petitioner asked the Circuit Court to issue Summary Judgment on at least one of the claims. No trial was held on the Motion for Summary Judgment.
On December 30, 2022, the Circuit Court Judge issued decision denying Petitioner’s Motion for Summary Judgment. The Court did not provide any written reasons for the denial of the motion. Petitioner filed Notice of Appeal with the Circuit Court for Baltimore County located in Towson, Maryland on December 7, 2022. Thereafter, on February 2, 2023, Petitioner filed Civil Appeal Information Report with the Appellate Court of Maryland.
At the Appellate Court, Respondent filed a Reply Brief, and a Motion to Dismiss. Consequently, the Appellate Court denied Petitioner’s Appeal.
This petition follows.
REASONS FOR GRANTING THE WRIT
I. The Maryland Consumer Debt Collection Act applies to Child Support
The Maryland Consumer Debt Collection Act applies more broadly than the Federal Debt Collection Practices Act. See Awah v. Capital One Bank, NA, 2015 WL 302880, at *4, n.8 (D. Md. Jan. 22, 2015) (“The MCDCA contains broader definition of ‘collector’ than the definition of ‘debt collector’ under the FDCPA”).
The MCDCA is a remedial consumer protection statute. As such, the statute “must be liberally construed, in order to effectuate [their] broad remedial purpose.” See Andrews & Lawrence Pro. Servs. v. Mills, 223 A.3d 947, 950 (Md. 2020); Lockett v. Blue Ocean Bristol, LLC, 132 A. 3d 257, 272 (Md. 2016). In fact, Maryland’s high court has expressly warned against construing the statute in a “narrow or grudging” manner so as to “exemplify and perpetuate the very evils to be remedied.” Mills, 223 A.3d at 968 (quoting Pak v. Hoang, 835 A.2d 1185, 1191 (Md. 2003). Relatedly, “exemptions from remedial legislation must be narrowly construed.” Id. (quoting Lockett, 132 A.3d at 272).
This Court must not “read[] additional exemptions into a remedial statute”; instead, Plaintiff asserts that the court should defer to the legislature’s judgments. Keeping the foregoing principles in mind, the court should turn to Petitioner’s assertion that CSEA is a collector under MCDCA. The MCDCA defines “collector” as “a person collecting or attempting to collect an alleged debt arising out of consumer transaction.” See Md. Code Ann, Com. Law, 14-201(b). “Person” includes an individual, corporation, business trust, statutory trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal or commercial entity. See Md. Code Ann, Com. Law, 14-201(d). Here, CSEA collected the child support payments from Petitioner. CSEA is therefore subject to MCDCA.
Next, it also a violation of the MCDCA to “[c]1aim, attempt, or threaten to enforce right with knowledge that the right does not exist.” Md. Code, Com. Law 14-202(8). Here, CSEA charged an additional $450.00 monthly on top of the $950.00 monthly Child Support amount they were deducting from Petitioner. Further, the CSEA failed to provide an explanation for said charge.
Lastly, a collector may not “[e]ngage in unlicensed debt collection activity in violation of the Maryland Collection Agency Licensing Act ….” Md. Code Ann., Com. Law, l4-202(10). Here, the CSEA is not licensed to engage in any debt-collection activity. Besides, CSEA has failed to provide an explanation whether they are licensed or not. It follows; CSEA had no authority to charge Petitioner the additional amount on top of the child support payments.
II. The Judge(s) of the Appellate Court of Maryland abused their discretion when they incorrectly applied the abuse of discretion standard
This Court has previously held that a trial court abuses its discretion when it makes an error of law. See Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (“A … court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law…”).
The first step of the abuse of discretion test is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested. If the trial court failed to do so, it abused its discretion. See U.S. v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009).
The second step of the abuse of discretion test is to determine whether the trial court’s application of the correct legal standard was (1) “illogical,” (2) “implausible,” or (3) without “support in inferences that may be drawn from the facts in the record.” Anderson v. City of Bessemer City, N.C., 470 U.S. 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). If any of these three apply, only then is the reviewing Court able to have a “definite and firm conviction” that the trial court reached a conclusion that was a “mistake” or was not among its “permissible” options, and thus that it abused its discretion by making a clearly erroneous finding of fact. See U.S. v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009).
In the instant case, the Appellate Court dismissed Petitioner’s Motion for Summary Judgment. Petitioner’s Motion for Summary Judgment had sufficiently showed that there was no genuine issue of material fact. Maryland law provides that trial courts should grant motion for summary judgment “if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as matter of law.” (Emphasis added). See Jones v. Mid-Atlantic Funding Company, 362 Md. 661, 675 (Md. 2001).
Besides, a proper summary judgment motion is to be granted unless the parties truly dispute a material fact. Seaboard Surety Co. v. Richard F.Kline, Inc., 91 Md. App. 236, 244, 603 A.2d 1357(1992). Thus, “[when a moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with ‘some precision’ that there is a genuine dispute as to a material fact,” and place before the trial court facts that would be admissible in evidence. Bond v. Nibco, Inc., 96 Md. App. 127,134–36 (1993). The Respondent never filed any response to Petitioner’s Motion for Summary Judgment. It follows; the motion was not controverted. The Circuit Court judge proceeded to dismiss the motion, and provided no reasons and/or explanation for its reasons. It is Petitioner’s assertion that failure of the Respondent to file a response to the motion is clear proof that there was no genuine issue of material fact.
The Appellate Court also abused its discretion when it upheld the Circuit Court’s erroneous decision.
For the next step of the test in Hinkson, Petitioner asserts that the State Court’s decisions were illogical and lacked “support in inferences that may be drawn from the facts in the record.” The Court erroneously relied on the collateral order doctrine to state that Petitioner failed to meet three of the elements requisite for an interlocutory appeal. The Appellate Court misapplied the collateral order doctrine because the Petitioner has already shown how the Respondent failed to provide a response to the motion for summary judgment. Notably, none of the State Courts considered this fact. Further, Petitioner’s also grounded his appeal on the failure of the Circuit Court Judge to provide reasons for its judgment. It follows; reliance on the collateral order doctrine disregards pertinent facts in the case regarding the conduct of the Circuit Court judge.
III. The Judge(s) of the Appellate Court of Maryland violated their oaths of office when they incorrectly applied the abuse of discretion standard.
Each justice or judge of the United States takes the following oath or affirmation before performing the duties of his office:
“I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”
See 28 U.S. Code § 453.
The foregoing oath obligates judges to administer justice impartially, and to respect all laws of the United States.
Next, the burden is on the Petitioner to establish that an abuse of discretion has occurred. See, e.g., Hossainkhail v. Gebrehiwot, 143 Md. App. 716, 725 (2002) (“The court’s exercise of discretion is presumed correct until the attacking party has overcome such a presumption by clear and convincing proof of abuse”)
The conduct of the State Court judges, amount to a violation of the judges’ oaths of office. The judges swore to protect all laws of the United States. However, the Judges disregarded all the applicable laws discussed herein.
CONCLUSION & PRAYER FOR RELIEF
For the foregoing reasons, the petition for a writ of certiorari should be granted. Petitioner also prays for any further relief this Court may deem just.
Respectively submitted this day of __________ 2023:
________________________
HERBERT GUSTAVUS SOWE
PROOF OF SERVICE
I, HERBERT GUSTAVUS SOWE, do swear or declare that on this date, _________, 2023, as required by Supreme Court Rule 29, I have served the enclosed PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding or that party’s counsel, and on every other person required to be served, by depositing an envelope containing the above documents in the United States mail properly addressed to each of them and with first-class postage prepaid, or by delivery to a third-party commercial carrier for delivery within 3 calendar days.
The names and addresses of those served are as follows:
[ENTER ADDRESSES]
I declare under penalty of perjury that the foregoing is true and correct.
Executed on _______, 20_____
________________________
HERBERT GUSTAVUS SOWE
APPENDIX
Appendix A
(Order of the Appellate Court of Maryland, No. ACM-REG-2045-2022)
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