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Melissa Murphy v. Bronson

June 13, 2011

MELISSA MURPHY,
PLAINTIFF,
v.
BRONSON, CAWLEY, & BERGMANN,
DEFENDANT.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT PURSUANT TO F.R.C.P. 12(b)(6) [Doc. No. 7]

INTRODUCTION

Plaintiff Melissa Murphy ("Murphy") filed the Amended Complaint in this action on December 6, 2010 [Doc. No. 5]. The Amended Complaint alleges violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (1977) ("FDCPA"), and the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788, et seq. (2009) ("RFDCPA"), against Defendant Bronson, Cawley, & Bergmann, LLP ("Bronson"), a law firm engaged in the business of debt collecting. (Am. Compl. 1-2.) On December 7, 2010, Defendant filed a Motion to Dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) [Doc. No. 7]. Plaintiff submitted a Response to Defendant's Motion to Dismiss ("Opposition") on December 27, 2010 [Doc. No. 9]. On December 29, 2010, Defendant filed a Memorandum of Points and Authorities in Reply to Opposition to Defendant's Motion to Dismiss the First Amended Complaint ("Reply") [Doc. No. 10]. For the reasons stated below, the Motion to Dismiss the Amended Complaint is GRANTED.

BACKGROUND

Plaintiff is a resident of San Diego County in the State of California. (Am. Compl. 2, Doc. No. 5.) She alleges that she is a "consumer" as defined by the FDCPA, and a "debtor" as defined under the RFDCPA. (Id.) Plaintiff further alleges that Defendant "was a company engaged, by use of the mails and telephone, in the business of collecting a debt from Plaintiff which qualifies as a 'debt,' as defined by 15 U.S.C. § 1692a(5), and a 'consumer debt,' as defined by Cal. Civ. Code § 1788.2(f)." (Id.) According to Plaintiff, "Defendant regularly attempts to collect debts alleged to be due another, and therefore is a 'debt collector' as defined by the FDCPA . . . and RFDCPA . . . ." (Id.)

Plaintiff claims that "at various and multiple times prior to the filing of the instant complaint, including within the one year preceding the filing of the this complaint, Defendant contacted Plaintiff in an attempt to collect an alleged outstanding debt." (Id.) Specifically, Plaintiff states, "On or about June 25, 2010, Defendant sent Plaintiff a collection letter, written from a law firm letter head but then stating that no attorney has reviewed the file" ("June 25 Letter"). (Id. at 2-3.) Plaintiff attached a copy of the June 25 Letter to the Amended Complaint and marked it as Exhibit "A".

The June 25 Letter is on letterhead stationary listing "Bronson, Cawley & Bergmann, LLP, Attorneys at Law (a limited liability partnership formed in the State of New York)" at the top center, along with an address, telephone, and fax numbers. (Id.) The words "L. Patrick Bergmann**" appear on the top-left side of the letter, with "**Admitted in NY, NJ" printed on the opposite side of the page.

The subject heading lists: 1) the creditor, Cavalry Portfolio Services, LLP; 2) the file and account numbers; 3) the original creditor, Navy FCU; and 4) the amount due. (Id.) Directly to the right of the subject heading is the phrase, "Attorneys Licensed In:" with the states Illinois, Maryland, New Jersey, New York, Pennsylvania, and Vermont listed below those words. The body of the letter reads as follows:

Melissa Roland:

This office has been retained to collect a debt owed by you to CAVALRY PORTFOLIO SERVICES, LLP. Unless you, the consumer, within thirty days after receipt of this notice, dispute the validity of the debt or any portion thereof, this office will assume this debt is valid.

If you, the consumer, notify us in writing within the thirty-day period that the debt, or any portion thereof, is disputed we will obtain verification of the debt or a copy of a judgment against you and a copy will be mailed to you by our office.

Upon your written request within the thirty-day period, we will provide you with the name and address of the original creditor, if different from the current creditor.

Please note that no attorney with our firm has personally reviewed the particular circumstances of your account.

Please call your office without delay. The toll free number is 888-523-0856.

Sincerely, [signed]

L. Patrick Bergmann, Esq.

This communication is from a debt collector and is an attempt to collect a debt. Any information obtained ...


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