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Bridget Breidenbach v. Pennsylvania Higher Education Assistance

March 13, 2013

BRIDGET BREIDENBACH,
PLAINTIFF,
v.
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE
EXPERIAN ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge

ORDER GRANTING DEFENDANT AGENCY/AMERICAN EDUCATION SERVICES' MOTION TO DISMISS (ECF NO. 30)

On July 3, 2012, Plaintiff filed a complaint, alleging various claims related to the collection of an alleged student loan debt. On August 17, 2012, Plaintiff filed her currently operative First Amended Complaint ("FAC"), asserting claims for (1) violations of the Fair Debt Collection Practices Act ("FDCPA"), (2) violations of California's Rosenthal Fair Debt Collections Practices Act ("Rosenthal Act"), (3) violations of the Fair Credit Reporting Act ("FCRA"), (4) violations of California's Consumer Credit Reporting Agencies Act ("CCRAA"), (5) violations of the Telephone Consumer Protection Act ("TCPA"), and (6) negligence per se. Since the filing of her FAC, several defendants have been or will soon be dismissed. Remaining are defendants Pennsylvania Higher Education Assistance Agency d/b/a American Education Services ("AES"); Weltman Weinberg & Reis Co., LPA ("WWR"); National Enterprise Systems, Inc. ("NES"); and MRS BPO, LLC d/b/a MRS Associates ("MRS").

Currently before the Court is AES's Motion to Dismiss, which has been fully briefed. (ECF Nos. 30, 40, 45). The Court finds AES's Motion to Dismiss suitable for disposition without oral argument. See CivLR 7.1.d.1. After considering the parties' submissions, and for the reasons that follow, the Court hereby GRANTS AES's Motion to Dismiss as to all of Plaintiff's claims against AES. Plaintiff is granted leave to amend all claims except the FDCPA claim.

FACTUAL ALLEGATIONS

Plaintiff alleges that, in March 2011, she discovered her credit history contained a delinquency reported by AES in collections with WWR. Plaintiff alleges that, on June 27, 2011, she sent letters to AES and WWR disputing the alleged debt and demanding that the negative information be removed from her credit history. Plaintiff alleges that, on June 28, 2011, Plaintiff spoke with a representative of AES who confirmed Plaintiff's account with AES had a zero balance and that Plaintiff no longer had any open or delinquent accounts with AES. Plaintiff alleges she provided information to TransUnion, Experian, and Equifax disputing the alleged debt and that, on July 5, 2011, Plaintiff confirmed all three credit reporting agencies had removed the alleged debt from her credit history.

Plaintiff alleges that, in attempting to collect the alleged debt, WWR used false, deceptive, and/or misleading representations and that WWR failed to respond to Plaintiff's request for validation of the alleged debt.

Plaintiff alleges that, later that year, on December 12, 2011, Plaintiff received a letter from NES stating it was also attempting to collect the same debt that WWR was attempting to collect. Plaintiff alleges that, on January 5, 2012, she sent a letter to NES disputing the alleged debt and explaining the ongoing dispute with AES and WWR. Plaintiff alleges she sent a follow-up letter to NES on January 17, 2012, requesting validation of the alleged debt.

Plaintiff alleges that, on February 11, 2012, Plaintiff discovered TransUnion was again reporting the alleged AES debt. Plaintiff alleges that, on February 13, 2012, she contacted all three credit reporting agencies by phone to again dispute the alleged debt.

Plaintiff alleges that, having received no response to her January 17, 2012 request for validation from NES, she sent another letter to NES requesting validation on February 17, 2012. Plaintiff alleges that, in response, she received a letter from NES stating NES had received the account information from National Colligate Trust, but that NES did not provide validation or proof of the debt.

Plaintiff alleges that, in its efforts to collect the alleged debt, NES made several calls to Plaintiff's cell phone using an automatic telephone dialing system and/or an artificial or prerecorded voice without Plaintiff's consent.

Plaintiff alleges she again disputed the alleged debt and that, on March 22, 2012, she received letters from TransUnion and Equifax confirming the alleged AES debt was again listed as a zero balance and all derogatory remarks related to the alleged debt were deleted from her TransUnion and Equifax reports. Plaintiff alleges that, on April 20, 2012, she received confirmation that the debt was also removed from her Experian report.

Plaintiff alleges that, just a few a days later, on March 26, 2012, Plaintiff received a letter from MRS stating it too was attempting to collect the same AES debt. Plaintiff alleges that, on April 2, 2012, she called MRS to dispute the debt and request validation. Plaintiff alleges the MRS representative refused to give his name and refused to provide validation, stating MRS did not own the loan but that MRS was collecting the debt on behalf of AES. Plaintiff alleges MRS made a number of calls to Plaintiff -- at least one in which an MRS representative refused to identify himself and then called Plaintiff a profane name and several other calls using an automated dialer and/or an artificial or prerecorded voice without Plaintiff's consent.

Plaintiff alleges that, on June 7, 2012, she discovered the AES debt was again being reported on her credit reports, this time by MRS. This suit followed.

DISCUSSION

I. Legal Standard

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give "detailed factual allegations," a plaintiff must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible when the factual allegations permit "the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. In other words, "the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950.

In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

II. ...


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