                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

    DUSTIN DOVE,
         Plaintiff
         v.                                                  Civil Action No. 15-2274 (CKK)
    EDUCAP, INC., et al.,
        Defendants

                                    MEMORANDUM OPINION
                                        (July 20, 2016)
          This case stems from an action to collect on a debt that was filed in the District of

Columbia Superior Court by EduCap, Inc., who was represented in that action by Weinstock,

Friedman & Freidman, P.A. (“Weinstock”), against Dustin Dove. That case was subsequently

dismissed with prejudice. Plaintiff Dustin Dove, the debtor in the Superior Court action—which

the parties refer to as the collection case—brings four claims against Defendants EduCap and

Weinstock, essentially claiming that it was unlawful to bring the Superior Court collection case.

Specifically, Plaintiff asserts claims under the federal Fair Debt Collection Practices Act; the

District of Columbia Debt Collection Law, D.C. Code § 28-14 et seq.; the District of Columbia

Consumer Protection Procedures Act, D.C. Code § 28-3904 et seq.; and an abuse of process

claim under the common law of the District of Columbia.

          Before the Court is Defendants’ [16] Motion to Dismiss. Defendants argue that each of

the claims in the Complaint fails because the original collection case was timely filed in the

Superior Court. Defendants also argue that each of the individual claims in this case is barred as

a matter of law for additional independent reasons. Upon consideration of the pleadings, 1 the



1
    The Court’s consideration has focused on the following documents:
      •   Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 16;


                                                    1
relevant legal authorities, and the record for purposes of this motion, the Court GRANTS

Defendants’ [16] Motion to Dismiss. The Court agrees with Defendants that the collection case

was timely filed and that, therefore, each of the claims in this case fails as a matter of law.

Accordingly, the Court does not reach Defendants’ other arguments as to why each of the four

claims must be dismissed for one or more independent reasons. The claims in this case are

dismissed with prejudice, and this action is dismissed in its entirety.

                                        I. BACKGROUND

       For the purposes of the motion before the Court, the Court accepts as true the well-

pleaded allegations in Plaintiff’s Complaint. The Court does “not accept as true, however, the

plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp.

v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court recites only the

background necessary for the Court’s resolution of the pending Motion to Dismiss.

       As noted above, this case stems from the collection case filed in the Superior Court

captioned EduCap, Inc., v Dustin Dove, Civil Action No. 2015 CA 007783 C. See Compl. ¶ 11;

Pl.’s Opp’n, Ex. A, EduCap’s Opp’n to Def.’s Mot. to Dismiss, at 1. 2 EduCap brought that case

on behalf of HSBC Bank, N.A., and was represented by the law firm Weinstock. See Pl.’s Opp’n,

Ex. B (“Verified Complaint”), ECF No. 17-2, at 5. 3 The Verified Complaint indicates that


    • Pl.’s Opp’n to Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 17; and
    • Defs.’ Reply in Support of Defs.’ Mot. to Dismiss (“Defs.’ Reply”), ECF No. 18.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
2
  The Court also takes judicial notice of the Superior Court docket in that case. See District of
Columbia Courts, Court Cases Online, available at https://www.dccourts.gov/cco/maincase.jsf,
last visited July 12, 2016 (docket of 2015 CA 007783).
3
  Although Plaintiff did not attach the Verified Complaint in the collection case to his Complaint
in this case, he did attach it to his Opposition to Defendants’ Motion to Dismiss. See Pl.’s Opp’n,


                                                  2
Plaintiff sued “the Defendant for $32,548.16, pre-judgment interest in the amount of $11,281.27,

attorney’s fees in the amount of $750.00, balance due and owing for student loan by the Plaintiff

to the Defendant at the Defendant’s request on open account.” Id.

       Plaintiff alleges that the disclosure statement attached to the Verified Complaint in that

case shows that on August 21, 2007, a loan in the amount of $25,573 was disbursed to Dove.

Compl. ¶ 12. Plaintiff further alleges that monthly payments in the amount of $399.87 were due

beginning on January 6, 2011. Id. The Truth in Lending Disclosure Statement (Itemization of

Amount Financed and Loan Terms), which was attached to the Verified Complaint in the

collection case and subsequently attached to Defendant’s Motion to Dismiss and Plaintiff’s

Opposition in this case, appears to be the “note disclosure statement” referenced in Plaintiff’s

complaint. See Verified Compl., ECF No. 17-2, at 26. The Truth in Lending Disclosure

Statement shows a loan amount of $25,573, as alleged by Plaintiff, and a payment schedule of 46

monthly payments of $399.87, due beginning on January 6, 2011, followed by 192 monthly

payments of $388.86, beginning on January 6, 2015. Id. The Truth in Lending Disclosure

Statement shows that the lender is HSBC Bank, N.A. Id. The statement also refers to the

Promissory Note associated with the loan for “any additional information about nonpayment,

default, any required payment in full before the scheduled date and prepayment refunds and

penalties.” Id. The Promissory Note includes an acceleration clause, which allows the lender to

accelerate payments due on the loan upon non-payment by the borrower. Pl.’s Opp’n, Ex. B, at



Ex. B, at 5. The Court may rely on the Verified Complaint in the collection case in resolving the
pending Motion to Dismiss because it is a “document[] upon which the plaintiff’s complaint
necessarily relies.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d
117, 119 (D.D.C. 2011) (citations omitted). Moreover, as noted above, the Court takes judicial
notice of the contents of the Superior Court docket in the collection case.



                                                 3
16 (“Promissory Note”), ¶ 12(a) (“Notwithstanding any other provisions of this Note, I [the

borrower] will be in default, and upon giving any notice to me required by the law, you [the

lender] will have the right to declare the entire outstanding Loan Amount, accrued interest, and

all other amounts payable to you under the terms of this Notice, immediately due and payable in

full, if … (a) I fail to pay any schedule payment when due … .”). The Promissory Note also

includes a choice of law clause, stating that “[t]his Notice is governed by federal law, and to the

extent not preempted by federal law, the law of the State of Delaware.” Id. ¶ 17(d).

       Plaintiff alleges that, according to EduCap, no payments were made by Dove until July 2,

2015, when a $50 payment was remitted by telephone. Compl. ¶ 13. Plaintiff further alleges that,

according to EduCap, Dove remitted a second payment in the amount of $10, by telephone, on

October 16, 2015. Meanwhile, the docket for the collection case shows that the case was filed in

the Superior Court on October 9, 2015. See District of Columbia Courts, Cases Online (docket

for 2015 CA 007783 C); see also Pl.’s Opp’n, Ex. B, at 4 (summons issued on October 9, 2015).

Finally, the Superior Court docket shows that, on February 19, 2016, EduCap’s motion to

dismiss with prejudice was granted; Dove’s motion to dismiss was granted; and Dove motion for

sanctions was denied as moot; and the case was closed. See District of Columbia Courts, Cases

Online (docket for 2015 CA 007783 C). As far as the Court can glean from the Superior Court

docket and from the parties’ pleadings in this case, there was no ruling on the merits in the

collection case regarding the statute of limitations or any other substantive matter.

                                     II. LEGAL STANDARD

       Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a

complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.

R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of


                                                  4
‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion, a court may consider “the

facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the

complaint,” or “documents upon which the plaintiff’s complaint necessarily relies even if the

document is produced not by the plaintiff in the complaint but by the defendant in a motion to

dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119

(D.D.C. 2011) (citations omitted).

                                         III. DISCUSSION

        Defendants argue that each of the claims asserted in the Complaint fails as a matter of

law because the collection case in the Superior Court was timely filed. As explained below, the

Court agrees that the collection case was timely filed. For that reason alone, all the claims

asserted in the Complaint must be dismissed, and the Court need not address Defendants’ other

arguments in favor of dismissal.

        Each of the claims presented by Plaintiff in this case is premised on the assertion that the

collection case was filed after the applicable statute of limitations had expired. See Compl. ¶¶ 33-

37 (Fair Debt Collection Practices Act claim); id. ¶¶ 40-42 (D.C. Debt Collection Law claim); id.

¶¶ 46-47 (D.C. Consumer Protection Procedures Act claim); id. ¶ 53 (D.C. abuse of process

claim). Specifically, the claims are premised on the assertion that a three-year statute of

limitations is applicable to the collection case and that the collection case was filed outside of the


                                                   5
applicable three-year window. See id. Defendants argue that the collection case was timely filed

and that, therefore, each claim in this case fails a matter of law. Plaintiff does not contest the

premise of Defendants’ argument that, if the collection case was timely filed, each of their claims

fails. See Pl.’s Opp’n at 1-3, 9-13. They do, however, contest Defendants’ argument that the case

was timely filed. The timeliness of the filing of the collection case, therefore, is the primary legal

question before the Court. The Court now addresses that question.

       Plaintiff argues that the three-year statute of limitations under District of Columbia law

was applicable to the collection case because it is the law of the forum in which the collection

case was brought. Pl.’s Opp’n at 16. Specifically, Plaintiff emphasizes that, under District of

Columbia choice of law principles, the law of the forum governs procedural matters. See id.

(citing Huang v. D’Albora, 644 A.2d 1, 4 (D.C. 1994) (“[T]he laws of the forum ... apply to

matters of procedure”). Plaintiff further emphasizes that a statute of limitations is considered

procedural. See id. (citing Namerdy v. Generalcar, 217 A.2d 109, 113 (D.C. 1966)); see also A.I.

Trade Fin., Inc. v. Petra Int’l Banking Corp., 62 F.3d 1454, 1458 (D.C. Cir. 1995). While

Defendants do not concede that a three-year statute of limitations is applicable, they argue that,

even under a three-year statute of limitations, the filing of case was timely. 4 See Defs.’ Mot. at 6-

8; Defs.’ Reply at 8. The Court now turns to the dispute between the parties about whether the



4
  Pointing to the choice of law provision in the Promissory Note, Defendants also look to
Delaware’s six-year statute of limitations for actions arising from a promissory note. See
Promissory Note ¶ 17(d); Del. Code Ann. tit. 10, § 8109. But Defendants do not argue that this
six-year statute of limitations was applicable to the collection case as filed in the Superior Court.
See Defs.’ Reply at 8 (clarifying argument). Instead, Defendants argue that, even if a three-year
statute of limitations is applicable and even if the collection case was not filed within that statute
of limitations, that the claims in this case fail because the case could have been timely filed in
another jurisdiction under Delaware’s statute of limitations. Because the Court concludes that the
collection case was timely filed under the District of Columbia’s three-year statute of limitations,
the Court need not consider Defendants’ arguments based on Delaware law.

                                                   6
collection case was timely filed under the District of Columbia’s three-year statute of limitations.

As explained below, the Court agrees with Defendants that the collection case filed on October 9,

2015, was filed within the three-year statute of limitations.

       As explained by the District of Columbia Court of Appeals (“D.C. Court of Appeals”) in

addressing this area of law, “[i]t may be useful to begin with an examination of the operation of

the general rule relating to the statute of limitations as applied to installment obligations.” Keefe

Co. v. Americable Int’l, Inc., 755 A.2d 469, 472 (D.C. 2000). “This rule … has been established

in the jurisprudence of the District of Columbia, as in most of the nation, for at least a century.”

Id. The D.C. Court of Appeals then explained that “ ‘[i]t is well settled that where a debt is

payable in independent instalments the right of action accrues upon each as it matures, and if the

obligee shall fail to commence his action until the statutory bar has intervened in the case of one

or more instalments, he can only recover those not barred when his action was commenced.’ ”

Id. (quoting Washington Loan & Trust Co. v. Darling, 21 App. D.C. 132, 140 (1903)). “The

theory is that each installment due is a separate obligation as to which the statute runs

separately.” Id.

       Under District of Columbia law, this rule has been applied to a variety of installment

obligations, including “past-due monthly payments on promissory note” and several “payments

due on unspecified debt.” Id. at 472 n.5 (citing William J. Davis, Inc. v. Young, 412 A.2d 1187,

1191 (D.C. 1980); Toomey v. Cammack, 345 A.2d 453, 454 & n.4 (D.C. 1975); Namerdy, 217

A.2d at 113)). In Keefe, the D.C. Court of Appeals emphasized that “[w]hether an installment

obligation exists does not depend on whether it is labeled as such but rather on the nature of the

obligation.” Id. at 474. Based on this analysis, the Keefe court concluded that the installment

obligation rule applied to circumstances “ ‘when parties have entered into a contract in which



                                                  7
payment is due on the first of each month, calculated as a percentage of the promisor's revenues

from a specific service already rendered by the promissee.’ ” Id. (quoting Keefe Co. v.

Americable Int’l, 169 F.3d 34, 40 (D.C. Cir. 1999) (certifying question to D.C. Court of Appeals)

(emphasis in original); see id. at 474-75 (concluding rule is applicable in these circumstances);

see also Keefe v. Americable Int’l, 219 F.3d 669, 670 (D.C. Cir. 2000) (reporting response of

D.C. Court of Appeals to certified question). The same rule governs installment obligations

under Delaware law—the source of law identified in the Promissory Note’s choice of law clause.

See Knutkowski v. Cross, No. CIV.A. 4889-VCG, 2014 WL 5106095, at *3 (Del. Ch. Oct. 13,

2014) (citing Worrel v. Farmers Bank of State of Delaware, 430 A.2d 469, 474-76 (Del. 1981)). 5

       To resolve the issues presented in this case, it is also necessary to explain the relationship

of the installment obligation rule with the rules pertaining to the use of acceleration clauses. 6 As

the Keefe court noted, “[o]rdinarily, where an obligee [i.e., a lender] wishes to have the option to

require present payment of the entire installment debt in the event of a default on an installment

payment, a so-called acceleration clause is included in the contract.” Keefe, 755 A.2d at 474.


5
  This rule is not limited to the District of Columbia or to Delaware. The D.C. Court of Appeals
noted that this rule “has been established in the jurisprudence of the District of Columbia, as in
most of the nation, for at least a century.” Keefe, 755 A.2d at 472 (emphasis added); see also Bay
Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of California, 522 U.S. 192,
208 (1997) (describing the rule described here as “the standard rule for installment obligations”);
see also, e.g., Raucci v. Candy & Toy Factory, 145 F. Supp. 3d 440, 449 (E.D. Pa. 2015) (Under
Pennsylvania law, “[w]here a contract calls for periodic or installment payments, each failure to
make payments when due constitutes a separate and distinct cause of action. Consequently, a
separate cause of action accrues each time the defendant fails to make timely payment.”)
(citation omitted); Peacock v. Equifax, Inc., No. 3:13-CV-651-PLR-HBG, 2015 WL 1457996, at
*2 (E.D. Tenn. Mar. 30, 2015) (“For periodic installment notes … , Tennessee law is ‘well-
settled that the cause of action accrues on each installment when it becomes due.’ ”) (quoting
Consumer Credit Union v. Hite, 801 S.W.2d 822 (Tenn. Ct. App. 1990)).
6
 An acceleration clause is generally defined as a “loan-agreement provision that requires the
debtor to pay off the balance sooner than the due date if some specified event occurs, such as
failure to pay an installment or to maintain insurance.” Acceleration Clause, Black’s Law
Dictionary (10th ed. 2014).

                                                  8
Other than this explanation by the Keefe court, the parties identify no binding authority regarding

the impact of acceleration clauses on statutes of limitation under District of Columbia law. But

consistent authority across jurisdictions indicates that, when an acceleration clause is included in

a contract and is exercised, the statute of limitations does not begin to run until the obligee (i.e.,

the borrower) defaults on the debt and the obligor (i.e., the lender) exercises the acceleration

option.

          Indeed, the Supreme Court has explained the general rule that “[t]he statute of limitations

on an accelerated debt runs from the date the creditor exercises its acceleration option, not

earlier.” Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of California,

522 U.S. 192, 209 n.5 (1997); see also United States v. Rollinson, 629 F. Supp. 581, 584 (D.D.C.

1986), aff’d on other grounds, 866 F.2d 1463 (D.C. Cir. 1989) (applying acceleration rule under

federal law). The same rule is applicable under Delaware law. See Worrel, 430 A.3d at 475-76

(“ ‘[T]he statute of limitations began to run with respect to each installment only from the time it

became due, unless the seller had the option of declaring the whole sum due and exercised that

option, in which case the statute began to run from the date of the exercise of the option.’ ”)

(quoting 67 Am. Jur. 2d., Sales, § 538 at page 724). So, too, this rule is applicable in other

jurisdictions. See, e.g., Greene v. Bursey, 733 So.2d 1111, 1114-15 (Fla. Dist. Ct. App. 1999)

(“Where the installment contract contains an optional acceleration clause, the statute of

limitations may commence running earlier on payments not yet due if the holder exercises his

right to accelerate the total debt because of a default. In other words, the entire debt does not

become due on the mere default of payment; rather, it become[s] due when the creditor takes

affirmative action to alert the debtor that he has exercised his option to accelerate.”). In sum, the

Court concludes that, under District of Columbia law, as under all of the sources of law



                                                   9
canvassed here, the statute of limitations on an action to collect a debt only begins to run, in

circumstances when an acceleration clause is included in a contract, once that clause has been

exercised. 7

        Applying the law as explained above to the facts in this case leads to a clear result: that

the collection case was timely filed. As noted above, Plaintiff was obligated to make 46 monthly

payments of $399.87, which were due beginning on January 6, 2011, followed by 192 monthly

payments of $388.86, due beginning on January 6, 2015. See Verified Compl., exs. at 26. This is

plainly an installment obligation subject to the legal principles described above. Plaintiff argues

that the installment obligation rule is inapplicable because the Promissory Note did not embody a

contract for goods or services. See Pl.’s Opp’n at 14-15. But there is no basis for this argument.

As discussed above, binding precedent from the D.C. Court of Appeals shows that the

installment obligation rule is applicable to agreements to repay a loan or other debt, including

“past-due monthly payments on promissory” or to several “payments due on unspecified debt.”

See Keefe, 755 A.2d at 472 (citing cases). Plaintiff highlights the fact that Keefe considered

circumstances where a promised installment payment was “calculated as a percentage of the

promisor's revenues from a specific service already rendered by the promissee.” Pl.’s Opp’n

(quoting Keefe, 219 F.3d at 670) (emphasis in Plaintiff’s briefing). But that language in no way

limits the scope of the installment obligation rule, and there is simply no basis for Plaintiff’s

suggestion to the contrary. The D.C. Court of Appeals clearly stated that the installment

obligation rule applies when a “debt is payable in independent instalments.” Keefe, 755 A.2d at

472. There is no question that the repayment obligation at issue in this case is “payable in



7
 If such a clause is never exercised, the statute of limitations runs separately on each repayment
obligation pursuant to the general rule for installment obligations explained above.

                                                  10
independent instalments”—here, 238 monthly installments. Therefore, the installment obligation

rule explained above applies in full in this case.

       Plaintiff also presents a cursory argument that his “total repudiation” triggered a single

right of action, supplanting the series of discrete monthly obligations under the installment

obligation rule. Pl.’s Opp’n 15. But there is no basis in law or fact for this argument. Plaintiff

never indicates what he claims constitutes the “total repudiation.” Certainly, Plaintiff alleges that

he made no payments on the loan between the time the first payment was due, on January 6,

2011, and when he submitted a $50 payment on July 2, 2015. However, even Plaintiff’s abject

failure to satisfy his repayment obligations under the Promissory Note, without any affirmative

act on his part to repudiate the contract, does not qualify as a “total repudiation” that would have

any effect on the statute of limitations. See Keefe, 755 A.2d at 475 (“Where a contract involves

future installment obligations, it seems logically to follow that repudiation of the contract in its

entirety would require a clear anticipatory breach of all future obligations in addition to any

present breach.”). Indeed, the case on which Plaintiff relies for his claim of a total repudiation in

fact mandates the opposite conclusion. See Eastbanc, Inc. v. Georgetown Park Associates II, L.P.,

940 A.2d 996, 1007 n.6 (D.C. 2008) (citing Keefe, 755 A.2d at 475). Indeed, Eastbanc, as well as

the cases that it discusses, describes an affirmative act of repudiation coupled with a breach of

the contract. Id. at 1007-08, 08 n.6. Here, there was no repudiation whatsoever, let alone a

repudiation with “force and clarity” that could have any legal effect on the statute of limitations.

Id. at 1007. Accordingly, Plaintiff’s argument that his “total repudiation” triggers a single action

rather than installment obligations fails.




                                                  11
       Having established that the rules for installment obligations govern the agreement in this

case, the Court turns to the effect of the acceleration clause. The acceleration clause in the

Promissory Note governing the repayment obligations is as follows:

       Notwithstanding any other provisions of this Note, I [the borrower] will be in
       default, and upon giving any notice to me required by the law, you [the lender]
       will have the right to declare the entire outstanding Loan Amount, accrued
       interest, and all other amounts payable to you under the terms of this Notice,
       immediately due and payable in full, if … (a) I fail to pay any schedule payment
       when due … .

Promissory Note, ¶ 12(a). That acceleration clause was not exercised until Defendant EduCap

filed the collection case on October 9, 2015. Because EduCap, acting on behalf of the lender

HSBC Bank, chose to exercise the acceleration clause in the Promissory Note, the statute of

limitations only began running on the debt collection claim on the date the acceleration option

was exercised—October 9, 2015—as explained fully above. See Bay Area Laundry & Dry

Cleaning Pension Trust Fund, 522 U.S.at 209 n.5 (“[T]he statute of limitations on an accelerated

debt runs from the date the creditor exercises its acceleration option, not earlier.”). For that

reason, the collection case complied with the District of Columbia’s three-year statute of

limitations in full and was timely filed.

       Because the Court concludes that the collection case was timely filed under a three-year

statute of limitations, the Court need not consider Defendants’ alternative argument that the

collection case was timely filed because of Plaintiff’s two 2015 partial payments on the debt in

question. Because the collection case was timely, all of the claims in the Complaint fail as a

matter of law. For that reason, the Court also need not consider Defendants’ arguments that each

of the four claims in this case fails for reasons specific to those individual claims, reasons that

are independent of the statute of limitations issues raised. In short, because the collection case

was timely filed, each of the claims in this case necessarily fails as a matter of law. Therefore,


                                                  12
each of those claims is dismissed with prejudice. See Rudder v. Williams, 666 F.3d 790, 794

(D.C. Cir. 2012) (“ ‘[D]ismissal with prejudice is warranted only when ... the allegation of other

facts consistent with the challenged pleading could not possibly cure the deficiency.’ ”) (quoting

Belizan v. Hershon, 434 F.3d 579, 583 (D.C. Cir. 2006)).

                                        IV. CONCLUSION

       For the foregoing reasons, the Court GRANTS Defendants’ [16] Motion to Dismiss. The

claims in this case are dismissed with prejudice, and this action is dismissed in its entirety.

       An appropriate Order accompanies this Memorandum Opinion.

Dated: July 20, 2016
                                                          /s/
                                                       COLLEEN KOLLAR-KOTELLY
                                                       United States District Judge




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