Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sherry Fenn v. Cir

March 8, 2011

SHERRY FENN,
PLAINTIFF,
v.
CIR, LAW OFFICES, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

RE: DEFENDANT'S MOTION TO

MEMORANDUM DECISION AND ORDER DISMISS (Doc. 5)

I. INTRODUCTION.

Plaintiff Sherry Fenn filed a complaint against Defendant CIR, Law Offices ("CIR"), a debt collector, pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq ("FDCPA").*fn1 Plaintiff alleges that Defendant violated the FDCPA by engaging in abusive and improper behavior while attempting to collect a debt from Plaintiff.

Defendant CIR moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Defendant argues that Plaintiff has failed to state a cognizable violation of the FDCPA.

II. BACKGROUND.

The following background facts are taken from the parties' submissions in connection with the motions and other documents on file in this case.

This matter involves a dispute between a Plaintiff and Defendant CIR concerning the latter's attempts to collect an unpaid debt of $2,651.58 (owed to Target National Bank). On January 29, 2010, a validation notice was purportedly sent to Plaintiff seeking the balance of the debt, $2,651.58. It is undisputed that Plaintiff did not respond to the validation notice.

On August 18, 2010, Defendant CIR filed a debt collection suit against Plaintiff on behalf of Target National Bank in the Superior Court of California, County of Stanislaus, Case No. 657041. Defendant claims that Plaintiff, or someone matching her description, was served by substituted service on September 4, 2010.

On September 10, 2010, Plaintiff contacted Defendant CIR to discuss a settlement. Plaintiff offered to resolve the matter for $1,458.37, the amount identified in an expired settlement letter. The parties ultimately agreed to settle the debt collection matter for $1,856.78.

On September 13, 2010, Defendant CIR received a cashier's check from Plaintiff in the amount of $1,856.78. Defendant dismissed the state court action against Plaintiff on October 13, 2010.

On October 11, 2010, Plaintiff filed this action to recover actual, statutory and punitive damages stemming from Defendant's allegedly unlawful debt collection practices.*fn2 The federal complaint advances two claims for relief: (1) violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.; and (2) violations of the California Rosenthal Act, Cal. Civ. Code § 1788 et seq.

On November 24, 2010, Defendant moved to dismiss this action on grounds that Plaintiff has not stated a claim upon which relief can be granted.*fn3 Plaintiff's opposition, filed February 21, 2011, is limited to the merits of the FDCPA claim against Defendant. See Doc. 7 at 4:4-4:6 ("Plaintiff agrees that the Rosenthal Act does not apply to this Defendant and voluntarily dismisses her Second Cause of Action for violations of the Rosenthal Act.").

III. LEGAL STANDARD.

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss a claim for "failure to state a claim upon which relief can be granted[.]"

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet - that the court must accept as true all of the allegations contained in the complaint - "is inapplicable to legal conclusions." Iqbal, 129 S.Ct. at 1949. Accordingly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rather, "[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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.