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Vaagn Vartanian v. Portfolio Recovery Associates

March 7, 2013

VAAGN VARTANIAN, PLAINTIFF,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC, DEFENDANT.



The opinion of the court was delivered by: Otis D. Wright, II United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIOIN TO DISMISS [21]

I.INTRODUCTION

Plaintiff Vaagn Vartanian filed a Complaint against Defendant Portfolio Recovery Associates, LLC, alleging that Portfolio reported credit information regarding Vartanian it knew or should have known to be inaccurate. Portfolio twice moved to dismiss the Complaint, and Vartanian twice filed untimely oppositions. After considering the merits of Portfolio's arguments, the Court GRANTS IN PART AND DENIES IN PART this Motion to Dismiss.*fn1

II.FACTUAL BACKGROUND

On August 16, 2010, Vartanian reviewed his credit report. (FAC ¶ 10.) To his surprise, he noticed a Wells Fargo account listed on the report he claims he never opened. (Id. ¶¶ 10--11.) That same day, Vartanian sent Wells Fargo a letter disputing ownership of the account. (Id. ¶ 11.)

On October 12, 2010, Wells Fargo sent Vartanian a letter informing him that it deleted the account from Vartanian's credit reports maintained by Equifax, TransUnion, Experian, and Innovis-the major credit-reporting agencies ("CRAs"). (Id. ¶ 12.) On September 21, 2010, Vartanian confirmed that the account had in fact been deleted.*fn2 (Id. ¶ 13.)

Around March 2012, Vartanian obtained another credit report from Experian, TransUnion, and Equifax. (Id. ¶ 14.) Vartanian spotted an account in derogatory status matching the description of the one previously removed by Wells Fargo. (Id. ¶¶ 14--15.) This time Portfolio had reported the account. (Id. ¶ 14.)

Vartanian disputed the account in writing to the CRAs, claiming that the account did not belong to him and was thus inaccurately reported. (Id. ¶ 17.) He believes that the CRAs communicated with Portfolio about the account. (Id. ¶ 18.)

On April 13, 2012, Vartanian mailed a dispute letter directly to Portfolio, requesting verification of the alleged debt and requesting that the account be deleted from his credit reports. (Id. ¶ 19.)

On May 14, 2012, and June 11, 2012, Vartanian sent Portfolio two more dispute letters. (Id. ¶¶ 22--23.)

As of August 1, 2012, Portfolio had not responded to Vartanian's letter and continued to report the derogatory account on Vartanian's credit reports.

(Id. ¶¶ 24--25.)

In response, Vartanian filed a Complaint against Portfolio on October 2, 2012, alleging seven claims for willful and negligent violations of the Fair Credit Report Act, 15 U.S.C. § 1681s-2(b); intentional and negligent violations of the California Consumer Credit Reporting Agencies Act, Cal. Civ. Code § 1785.25(a); violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e, 1692f, 1692g;*fn3 violation of the California Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788.17; and defamation by libel. (ECF No. 3.)

On November 30, 2012, Portfolio moved to dismiss the Complaint. (ECF No. 13.) On December 20, 2012, Vartanian filed an untimely opposition. (ECF No. 16.) The Court accordingly struck the opposition and granted the motion. (ECF Nos. 17, 18.)

On January 16, 2013, Vartanian filed his First Amended Complaint, which mirrors the claims in his original Complaint. (ECF No. 19.) On February 7, 2013, Portfolio filed this Motion to Dismiss. (ECF No. 21.) On February 19, 2013, Vartanian once again filed an untimely opposition. (ECF No. 24.) The Court accordingly struck it. (ECF No. 25.)

Portfolio's Motion to Dismiss is now before the Court for decision.

III.LEGAL STANDARD

Dismissal under Rule 12(b)(6) can be based on "the lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)-a short and plain statement-to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6). Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); Fed. R. Civ. P. 8(a)(2).

For a complaint to sufficiently state a claim, its "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While specific facts are not necessary so long as the complaint gives the defendant fair notice of the claim and the grounds upon which the claim rests, a complaint must nevertheless "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Iqbal's plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," but does not go so far as to impose a "probability requirement." Id. Rule 8 demands more than a complaint that is merely consistent with a defendant's liability; labels and conclusions, or formulaic recitals of the elements of a cause of action do not suffice. Id. Instead, the complaint must allege sufficient underlying facts to provide fair notice and enable the defendant to defend itself effectively. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The determination whether a complaint satisfies the ...


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