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Title Sean Munekiyo v. Capital One Bank

December 5, 2011

TITLE SEAN MUNEKIYO
v.
CAPITAL ONE BANK, N.A., ET AL.



The opinion of the court was delivered by: Present: The Honorable Christina A. Snyder, U.S. District Judge

CIVIL MINUTES - GENERAL

RITA SANCHEZ N/A N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

N/A N/A

Proceedings: (In Chambers:) CAPITAL ONE DEFENDANTS' MOTION

TO DISMISS FIRST AMENDED COMPLAINT (filed 10/3/2011)

INTRODUCTION

On April 13, 2011, plaintiff Sean Munekiyo ("plaintiff") filed the instant class action complaint against defendants Capital One Bank (USA) N.A. ("Capital One Bank"), Capital One Services, LLC ("Capital One Services") (collectively, "Capital One Defendants"), NCO Financial Systems, Inc. ("NCO"), and Does 1--10. On September 2, 2011, plaintiff filed a first amended complaint ("FAC"). The FAC alleges six violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., against NCO: (1) falsely representing the character, amount or legal status of any debt; (2) use of deception to collect a debt; (3) failing to identify communications as an attempt to collect a debt; (4) true name of the debt collector's business, company, or organization; (5) use of unfair or unconscionable means to collect a debt; and (6) failing to provide a debt validation notice.*fn1 The FAC asserts four additional claims against all defendants: (7) deceptive acts and practices in violation of the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code §§ 1788 et seq.; (8) violation of the California Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1770 et seq.; (9) violation of California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200 et seq.; and (10) common law fraud.

On October 3, 2011, the Capital One Defendants filed a motion to dismiss the four claims asserted against them in the FAC.*fn2 Plaintiff filed his opposition on November 7, 2011, and the Capital One Defendants filed their reply on November 21, 2011. After carefully considering the arguments set forth by both parties, the Court finds and concludes as follows.

BACKGROUND

Plaintiff maintains a credit card account with Capital One Bank. See FAC ¶ 8. By April, 2010, plaintiff owed back payments of approximately $7,500. Mot. at 1. On April 29, 2010, Capital One Services, a subsidiary of Capital One that provides services for Capital One Bank and other affiliates, sent plaintiff a letter informing him that his account was eligible for a 0% Annual Percentage Rate ("APR") if he agreed to enter a repayment plan (the "Letter"). FAC ¶ 18.*fn3 The Letter, printed on "Capital One" letterhead, displays in prominent bold text "Pay Over Time" with "0% APR" directly underneath in the upper right hand corner, along with a toll-free telephone number for consumers to call. Id. ¶ 18, Exh. A (emphasis in original). The body of the letter states:

We realize circumstances can sometimes make it difficult to manage your finances. The good news is-there is a way to pay it off.

Your account is eligible to have the Annual Percentage Rate ("APR") reduced to 0% provided you call [toll-free number] to make arrangements for an acceptable repayment plan. After you have made acceptable arrangements, your APR will be reduced to 0% within 8 days.

[Signed] Capital One Services, LLC.

P.S. Call today at [toll-free number] to make payment arrangements and start to resolve your debt.

At the bottom of the first page, bold text states: "NOTICE: PLEASE SEE REVERSE SIDE FOR IMPORTANT INFORMATION." Id. (emphasis in original). The back of the letter provides:

1. Who We Are and Who We Service. Capital One Services, LLC is a subsidiary of Capital One, National Association, and services the following Capital One affiliated companies:

* Capital One Bank (USA), National Association;

* Capital One, National Association; and

* Capital One Auto Finance. Inc.

The name of your creditor has been previously disclosed to you and is identified for purposes of this letter by the creditor name and/or your Account number on the front. Unless another servicer is disclosed in this letter or has been separately disclosed to you as the current servicer of your Account, we are the current servicer of your Account.

2. State and Local Disclosures. The following disclosure is required by state or local law if your Account involves a debt primarily for personal, family, household or other consumer purpose(s) and you receive this letter in Connecticut, the ...


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