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Barbara Walsh v. Frederick J. Hanna & Associates

December 20, 2010

BARBARA WALSH, PLAINTIFF,
v.
FREDERICK J. HANNA & ASSOCIATES, P.C., DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS*fn1

Defendant moves for dismissal of Plaintiff's complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(6), arguing the dismissal should be with prejudice. Plaintiff alleges the complaint under the federal Fair Debt Collection Practices Act ("FDCPA") and the California Fair Debt Collection Practices Act("Rosenthal Act").

I. LEGAL STANDARD

When considering a Rule 12(b)(6) dismissal motion, a complaint is evaluated for the purpose of determining if it "contain[s] sufficient factual matter . . . to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. ----, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal quotation marks omitted). "In sum, for a complaint to survive a [Rule 12(b)(6)] motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

II. FACTUAL ALLEGATIONS IN COMPLAINT

Plaintiff's FDCPA and Rosenthal Act allegations are based on the content of a collections letter Plaintiff received from Defendant. The letter concerns a debt Plaintiff allegedly owed Chase Bank USA for a consumer account. (Compl. ¶¶ 11-14.) Plaintiff construes the letter as a prohibited threat under the FDCPA and the Rosenthal Act. Specifically, Plaintiff alleges she "believed Defendant's letter . . . meant that legal action has been, or soon will be, brought against her." Id. ¶ 17. The text of the entire letter, which is attached as an exhibit to Plaintiff's complaint, states:

Please be advised that this law firm represents CHASE BANK USA, N.A. in its efforts to collect your delinquent debt as shown above. Please contact our office to make arrangements to pay the unpaid balance.

Unless you notify this office within thirty (30) days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within thirty (30) days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of the Judgment and mail you a copy of such Judgment or verification. If you request this office in writing within thirty (30) days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor. This is an attempt to collect a debt. Any information obtained will be used for that purpose.

At this time, no attorney with this firm has personally reviewed the particular circumstances of your account. However, if you fail to contact this office, our client may consider additional remedies to recover the balance due. Id. Ex. A. The letter is printed on the law firm's letterhead which states in large font "Attorneys at Law", and is signed by the law firm as follows: "Frederick J. Hanna & Associates". Id. After the law firm's signature, there is a disclosure concerning the FDCPA and the Rosenthal Act in the same size font as the letter. Id.

III. DISCUSSION

A. FDCPA

Plaintiff alleges Defendant's letter violates the FDCPA as follows: "§1692e . . . by using false, deceptive, and misleading representations in connection with the collection of any debt;" "§1692e(3) . . . by falsely representing or implying that any individual is an attorney or that any communication is from an attorney;" "§1692e(5) . . . by threatening to take legal action against Plaintiff even though Defendant has not and does not intend to take such action;" and, "§1692e(10) . . . [by] using false and deceptive means in an attempt to collect a debt." (Compl. ¶ 20.) 15 U.S.C. § 1692e of the FDCPA prohibits a "debt collector" from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." § 1692e(3) prohibits "[t]he false representation or implication that any individual is an attorney or that any communication is from an attorney." § 1692e(5) prohibits "[t]he threat to take any action that cannot legally be taken or that is not intended to be taken." § 1692e(10) prohibits "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or obtain information concerning a consumer."

Whether the FDCPA has been violated is determined under an objective standard; specifically, "[w]e apply the least sophisticated debtor standard to [Plaintiff's] allegations." Wade v. Regional Credit Ass'n, 87 F.3d 1098, 1100 (9th Cir. 1996). Therefore, a violation of the FDCPA shall be found "if [Defendant's] letter . . . [is] likely to deceive or mislead a hypothetical least sophisticated debtor." Id. "The objective least sophisticated debtor standard is 'lower than simply examining whether particular language would deceive or mislead a reasonable debtor.'" Terran v. Kaplan, 109 F.3d 1428, 1431-32 (9th Cir. 1997) (quoting Swanson v. Southern Oregon Credit Service, Inc., 869 F.2d 1222, 1227 (9th Cir. 1988)). "This objective standard 'ensure[s] that the FDCPA protects all consumers, the gullible as well as the shrewd . . . the ignorant, the unthinking and the credulous.'" Clark v. ...


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