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Richard B. Tonini v. Mandarich Law Group

July 9, 2012

RICHARD B. TONINI
PLAINTIFF,
v.
MANDARICH LAW GROUP, LLP; CACH, LLC, DEFENDANTS.



The opinion of the court was delivered by: Hayes: Judge

ORDER

The matter before the Court is the Motion to Dismiss filed by Defendant Mandarich Law Group, LLP. (ECF No. 7).

I. Background

On March 14, 2012, Plaintiff initiated this action by filing the Complaint against Defendant Mandarich Law Group, LLP ("Mandarich Law Group") for improperly obtaining Plaintiff's credit report on two occasions on behalf of Cach, LLC ("Cach"). On May 7, 2012, Defendant Cach filed an Answer.

On May 14, 2012, Defendant Mandarich Law Group filed a Motion to Dismiss. On May17, 2012, Cach filed a notice of joinder to the Motion to Dismiss.*fn1

On May 29, 2012, Plaintiff filed an Opposition.

On June 1, 2012, Mandarich Law Group filed a request for judicial notice. On June 11, 2012,Mandarich Law Group filed a Reply.*fn2 On June 11, 2012, Cach filed a notice of joinder to the Reply.

II. Allegations of the Complaint

"Plaintiff pulled his consumer credit report from the three major credit reporting agencies and found entries that he was unfamiliar with in the reports." (ECF No. 1 at ¶ 7). "Plaintiff determined that his consumer credit report had been pulled on various occasions by various entities he did not recognize and without his consent." Id. at ¶ 8.

Plaintiff asserts a claim for violation of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 against Mandarich Law Group and Cach. "On July 5, 2011 and on September 16, 2011, Defendant [Mandarich Law Group] on behalf of [Cach] obtained the TransUnion consumer credit report for the Plaintiff with no permissible purpose in violation of FCRA, 15 U.S.C. §1681b." Id. at ¶ 19. "Plaintiff has never had any business dealings or any accounts with, made application for credit from, made application for employment with, applied for insurance from, or received a bona fide offer of credit from the Defendants ...." Id. at ¶17. "At no time did Plaintiff give his consent for [Mandarich Law Group and Cach] to acquire his consumer credit report from any credit reporting agency." Id. at ¶ 18. Plaintiff alleges that "[t]he action of [Mandarich Law Group and Cach] ... was a willful violation of FCRA, 15 U.S.C. § 1681b and an egregious violation of Plaintiffs right to privacy." Id. at ¶ 20.

Plaintiff also asserts a claim for violation of the Rosenthal Fair Debt Collection Practices Act ("RFDCPA") pursuant to California Civil Code section 1788 et seq. against Mandarich Law Group and Cach. Plaintiff alleges the same facts to support the RFDCPA claim as he alleged to support the FCRA claim.

III. Request for Judicial Notice

Defendants have submitted a request for judicial notice of the summons and complaint filed on October 10, 2011 in the Superior Court of California for the County of San Diego titled Cach, LLC v. Richard B. Tonini, case number 37-2011-58728-CL-CL-NC and the summons and complaint filed on April 3, 2012 in the Superior Court of California for the County of San Diego titled Cach, LLC v. Richard B. Tonini, case number 37-2012-52492-CL-CL-NC.

The October 10, 2011 complaint was filed by Mandarich Law Group on behalf of Cach. Cach asserts that it is the assignee of a credit card account between MBNA America, N.A. and Richard Tonini. The complaint asserts two claims against Tonini including breach of contract and account stated regarding an alleged credit card account balance of $24,076.71. The April 3, 2012 complaint was filed by Mandarich Law Group on behalf off Cach. Cach asserts that it is the assignee of a credit card account between Bank of America, N.A. and Richard Tonini. The complaint ...


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