Kevin Betskoff, Sr. v. Bank of America National Association , 538 F. App'x 308 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1352
KEVIN C. BETSKOFF, SR., on behalf of himself,
Plaintiff - Appellant,
v.
BANK OF AMERICA NATIONAL ASSOCIATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:12-cv-01998-CCB)
Submitted: August 20, 2013 Decided: August 26, 2013
Before MOTZ, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kevin C. Betskoff, Sr., Appellant Pro Se. Mark W. Kinghorn,
MCGUIREWOODS, LLP, Charlotte, North Carolina; Craig Robert
Haughton, MCGUIREWOODS, LLP, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin C. Betskoff, Sr., appeals the district court’s
orders declining to remand to Maryland state court his suit
against Bank of America, dismissing his complaint for failure to
state a claim, and denying his motion to reconsider. We affirm.
Given that Betskoff’s complaint established both
diversity and federal question jurisdiction, the district court
properly denied Betskoff’s motion to remand the case to state
court. See 28 U.S.C. § 1441(a), (b) (2006); Francis v. Allstate
Ins. Co., 709 F.3d 362, 366-67 (4th Cir. 2013). Nor did the
district court abuse its discretion in exercising supplemental
jurisdiction over his closely associated state law claims. See
28 U.S.C. § 1367(a) (2006); Crosby v. City of Gastonia, 635 F.3d
634, 644 (4th Cir. 2011).
We also conclude that the district court properly
granted Bank of America’s Fed. R. Civ. P. 12(b)(6) motion to
dismiss. As the district court observed, Betskoff’s attempts to
assert claims under the Maryland Consumer Debt Collection Act,
Md. Code Ann., Com. Law §§ 14-201 to 14-204 (LexisNexis 2005),
the Maryland Consumer Protection Act, Md. Code Ann., Com. Law
§§ 13-101 to 13-501 (LexisNexis 2005 & Supp. 2012), and the
Truth In Lending Act, 15 U.S.C. § 1666h(a) (2006), must each
fail because the statutory schemes in question protect only
consumer credit transactions; they do not provide causes of
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action relating to credit transactions between corporate
entities. See Md. Code Ann., Com. Law § 14-201(c) (LexisNexis
2005); Md. Code Ann., Com. Law §§ 13-101(c)-(d), 13-303
(LexisNexis Supp. 2012); 15 U.S.C. §§ 1603(1), 1666h(a) (2006).
By Betskoff’s own representation, the bank account involved in
his suit is a corporate account belonging to a limited liability
company, and the debt that was offset by Bank of America had
accrued on a credit card associated with that corporate account.
The three statutory schemes that he attempts to invoke are
therefore inapplicable to his circumstances.
As for Betskoff’s state law conversion claim, we
recognize that a defendant may commit conversion even if acting
in “good faith” and without “any consciousness of wrongdoing.”
Nickens v. Mount Vernon Realty Group, LLC, 54 A.3d 742, 757 (Md.
2012) (citation omitted). Yet Betskoff’s claim must fail
because Maryland law established that money, as an intangible,
is not subject to a claim for conversion unless “a plaintiff can
allege that the defendant converted specific segregated or
identifiable funds.” Allied Inv. Corp. v. Jasen, 731 A.2d 957,
966 (Md. 1999); see also Darcars Motors of Silver Spring, Inc.
v. Borzym, 841 A.2d 828, 833 n.3 (Md. 2004). Because Betskoff’s
funds were commingled with others not only when he deposited
them into a third party’s account but also when Bank of America
used the account funds to offset the credit card delinquency,
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“the cash los[t] its specific identity” such that, under
Maryland law, it no longer retained the discrete, unitary
identity necessary for Betskoff’s interests in it to be
redressed under a theory of conversion. Allied Inv. Corp., 731
A.2d at 967; Lasater v. Guttmann, 5 A.3d 79, 88 (Md. Ct. Spec.
App. 2010).
Finally, Betskoff’s claim for intentional infliction
of emotional distress is also doomed, as Bank of America would
not be liable even if it did what the complaint alleges: It
would not be “extreme and outrageous” for Bank of America to
offset a debt associated with a bank account with funds that
were deposited in that account, especially as Betskoff has
admitted that Bank of America did not know the true source of
the funds. See Manikhi v. Mass Transit Admin., 758 A.2d 95, 113
(Md. 2000) (discussing elements).
Accordingly, although we grant Betskoff leave to
proceed in forma pauperis, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument will not aid the decisional
process.
AFFIRMED
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