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Lauren Noel v. Bank of America

November 8, 2012




On July 31, 2012, Plaintiff Lauren Noel ("Plaintiff") filed a 18 complaint naming Bank of America ("BOA") as the sole defendant. 19

ECF No. 1 ("Compl."). The complaint asserts five claims arising 20 from BOA's alleged attempts to collect a consumer credit card debt 21 from Plaintiff: (1) violation of the Fair Debt Collection Practices 22 Act, 15 U.S.C. § 1692 et seq. ("FDCPA"); (2) violation of the Fair 23 Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"); (3) unfair 24 business practices under California's Unfair Competition Law, Cal. 25 Bus. & Prof. Code § 17200 et seq. ("UCL"); (4) violation of the 26 Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 27 et seq. ("RFDCPA"); and (5) negligence per se, based on BOA's 28 alleged failure to comply with the FDCPA, FCRA, UCL, and RFDCPA.

On August 27, 2012, FIA Card Services, N.A. ("FIA") came 2 forward as a defendant and filed a certificate and notice of 3 interested parties in which it certified that it is a wholly-owned 4 subsidiary of Bank of America Corporation. ECF No. 8. 5

Concurrently, FIA filed a motion to dismiss Plaintiff's complaint 6 pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 7 7 ("Mot."). FIA represents that Plaintiff sued BOA in error and that 8 FIA is the real party in interest. See id. at 3. 9

FIA's motion to dismiss is now pending before the Court. It

10 has been fully briefed. ECF Nos. 10 ("Opp'n"), 14 ("Reply"). No oral argument is needed. Civ. L.R. 7-1(b). For the reasons set forth herein, the Court GRANTS FIA's motion to dismiss. The Court

DISMISSES Plaintiff's complaint, in part with prejudice and in part with leave to amend, as set forth below.


Plaintiff alleges that she paid off any debt she may once have 18 owed to BOA. Compl. ¶ 13. She alleges that, in 2009, she sought 19 assistance from counsel to address BOA's allegedly "aggressive and 20 harassing collection efforts." Id. ¶ 14. On April 29, 2009, 21 through counsel, she sent to BOA via facsimile a letter which 22 "disputed the debt purportedly owed, sought an accounting, and 23 demanded that collections efforts cease and desist." Id. ¶¶ 20-21; 24 id. Ex. A ("April 29 Letter"). Plaintiff alleges that, following 25 the April 29 Letter, BOA "actually increased its collection 26 efforts, using not only multiple telephone calls but also text 27 messages." Id. ¶ 22. This prompted Plaintiff's counsel to fax 28 another letter to BOA on May 18, 2009. Id. ¶¶ 23-24; id. Ex. B ("May 18 Letter"). Over the next few months, Plaintiff's counsel 2 contacted various entities -- apparently, debt collectors -- and 3 collection efforts ceased. Id. ¶¶ 25-29. 4

Plaintiff attempted to purchase a home and learned that she would 6 be forced to continue renting due to credit reporting by Defendants 7 [sic]." Id. ¶ 30. Plaintiff alleges that she "contested the 8 reports with all three credit reporting agencies." Id. ¶ 31. 9

Plaintiff alleges that, "[d]uring the summer of 2011,

Plaintiff allegedly received an investigation report from the 10 credit reporting agency TransUnion, dated August 30, 2011, which shows that BOA "reported the debt as verified with no change." Id. ¶ 31; id. Ex. E ("Report"). Plaintiff alleges that her counsel received another debt collection attempt from a non-BOA entity in the spring of 2012, but that this entity "ceased collections shortly thereafter." Id.

BOA "continued to fail to correct its reporting of the invalidated debt" and represented to her that BOA "would do nothing but attempt 18 to report the alleged debt as 'sold.'" Id. ¶ 35. 19 20

A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) "tests the legal sufficiency of a claim." Navarro v. ¶¶ 33-34. Plaintiff further alleges that


Block, 250 F.3d 729, 732 (9th Cir. 2001). "Dismissal can be based 24 on the lack of a cognizable legal theory or the absence of 25 sufficient facts alleged under a cognizable legal theory." 26

1988). "When there are well-pleaded factual allegations, a court 28 should assume their veracity and then determine whether they

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

plausibly give rise to an entitlement to relief." Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009). However, "the tenet that a court 3 must accept as true all of the allegations contained in a complaint 4 is inapplicable to legal conclusions. Threadbare recitals of the 5 elements of a cause of action, supported by mere conclusory 6 statements, do not suffice." Id. at 678 (citing Bell Atl. Corp. v. 7

Twombly, 550 U.S. 544, 555 (2007)). The allegations made in a 8 complaint must be both "sufficiently detailed to give fair notice 9 to the opposing party of the nature of the claim so that the party 10 may effectively defend against it" and "sufficiently plausible"

such that "it is not unfair to require the opposing party to be

subjected to the expense of discovery." Starr v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011). 14


A. General Pleading Defects

For at least two reasons, the complaint as a whole is 18 insufficiently pled and therefore subject to dismissal. The first 19 is that Plaintiff has not named a legal entity as a defendant. The 20

Court is unaware of any entity named "Bank of America" (as opposed 21 to, for example, "Bank of America, N.A."). See Phillips v. Bank of 22

Am., CIV. 10-00551, 2011 WL 240813, at *3 (D. Haw. Jan. 21, 2011) 23

(observing that "Bank of America" is "not a legal entity" and 24 dismissing case with leave to file amended complaint "against a 25 properly-named defendant or defendants"). In her opposition, 26

Plaintiff takes the position that BOA acted as a debt collector on 27 behalf of FIA. Opp'n at 2. That may be so, but the complaint 28 itself alleges no relationship between BOA and FIA, because it does

not mention FIA. Neither does it allege who owns or owned the 2 alleged debt that Plaintiff allegedly satisfied. If Plaintiff 3 amends her complaint, she shall properly name a legal entity as 4 defendant, and she shall allege the owner of the alleged debt in 5 addition to the identity of the alleged debt collector. 6

7 matter is that it does not plainly state which allegations support 8 which claim. Plaintiff sets out her factual allegations in a 9 single factual account. Compl. ¶¶ 13-36. Each of her five claims 10 then incorporates these facts by reference. Id. ¶¶ 37, 41, 46, 51, 54. The remainder of each claim consists of a "[t]hreadbare recital[] of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678. Each claim, then, depends solely on the factual allegations incorporated by reference. Incorporation by reference is sometimes warranted and, "[p]roperly used, such incorporation promotes simple, concise 18 pleadings." Destfino v. Kennedy, CVF081269LJODLB, 2009 WL 63566, 19 at *4 (E.D. Cal. Jan. 8, 2009) aff'd sub nom. Destfino v. Reiswig, 20 630 F.3d 952 (9th Cir. 2011). Here, however, Plaintiff has not 21 connected specific allegations to the elements of her claims. 22

There is no way to tell which allegedly wrongful act goes with 23 which legal claim. Put another way, Plaintiff has yet to 24 articulate why the alleged conduct is unlawful. Plaintiff thus 25 fails to satisfy Rule 8(a)'s requirement that the pleading set 26 forth a "short and plain statement" of the facts giving rise to 27 each claim for relief. Plaintiff is advised that, if she chooses 28 to amend her complaint, each claim must be set out with a short and

The second reason Plaintiff's pleading fails as a general plain statement of the specific factual allegations supporting that 2 claim. 3

The Court also observes that Plaintiff, in both her complaint 4 and opposition, emphasizes allegations that Defendant "lied to 5 her." Compl. ¶¶ 15-16; Opp'n at 2. Though Plaintiff has chosen 6 not to bring a claim for misrepresentation, her allegations of 7 lying sound in fraud and hence are subject to Rule 9(b), which 8 requires Plaintiff to "state with particularity the circumstances 9 constituting fraud . . . ." Fed. R. Civ. P. 9(b). "To satisfy 10

Rule 9(b), a pleading must identify 'the who, what, when, where, and how of the misconduct charged,' as well as 'what is false or misleading about [the purportedly fraudulent] statement, and why it is false.'" Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011) (internal citations omitted). 15

Plaintiff's allegations, which omit what was said, when, by whom, under what circumstances, or why the statements were false, fall far short of satisfying this standard. Any further allegations of 18 misrepresentation must comply with Rule 9(b). 19

Because the entire complaint is inadequately pled and thus 20 subject to dismissal, the next question is whether any of 21

Plaintiff's claims shall be dismissed with prejudice. "[A] 22 district court should grant leave to amend . . . unless it 23 determines that the pleading could not possibly be cured by the 24 allegation of other facts." Silva v. Di Vittorio, 658 F.3d 1090, 25

1105 (9th Cir. 2011) (quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)). With this standard in mind, the Court turns to 27 Plaintiff's individual claims. 28

It does not, however, apply to creditors who seek to collect a debt 4 in their own right. Id. § 1692a(6)(A). FIA argues that 5

Plaintiff's FDCPA claim fails as a matter of law because FIA is not 6 a debt collector within the meaning of § 1692a(6); rather, FIA 7 avers, it is a creditor seeking to collect its own debt. Mot. at 8


The FDCPA applies to debt collectors. 15 U.S.C. § 1692a(6).

5. However, as explained above, the complaint does not allege who 9 owns the debt. Accordingly, the Court cannot ascertain whether the 10 alleged debt is one allegedly owned by FIA or some other entity.

The Court is aware of FIA's position that it ...

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