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Lachi v. GE Capital Bank

United States District Court, S.D. California

January 28, 2014

MEGAN LACHI, Plaintiff,
v.
GE CAPITAL BANK et al., Defendants

Page 1229

For Megan Lachi, Plaintiff: Karen S. Spicker, LEAD ATTORNEY, Doan Law Firm LLP, Carlsbad, CA.

For Northland Group Inc., Encore Receivable Management, Inc., Defendants: Christopher D Holt, LEAD ATTORNEY, Klinedinst PC, Santa Ana, CA; Issa K. Moe, LEAD ATTORNEY, Moss & Barnett PA, Minneapolis, MN.

OPINION

Page 1230

HON. GONZALO P. CURIEL, United States District Judge.

ORDER GRANTING DEFENDANT ENCORE RECEIVABLE MANAGEMENT, INC.'S MOTION TO DISMISS WITH LEAVE TO AMEND

INTRODUCTION

Presently before the Court in this fair debt collection case is defendant Encore Receivable Management, Inc.'s (" Encore" ) Motion to Dismiss each of plaintiff Megan Lachi's (" Plaintiff" ) claims as asserted against Encore. (ECF No. 4.) Plaintiff has opposed Encore's Motion to Dismiss, (ECF No. 6), and Encore has filed a reply, (ECF No. 7). The Court finds Encore's Motion to Dismiss suitable for disposition without oral argument. See CivLR 7.1.d.1. Having considered the parties' submissions, the Court will GRANT Encore's Motion to Dismiss WITH LEAVE TO AMEND.

PLAINTIFF'S ALLEGATIONS

Plaintiff alleges that " Defendants and each of them" claim Plaintiff owes them a debt and that, on November 9, 2010, Plaintiff retained the Doan Law Firm, LLP to dispute the validity of the alleged debt. (ECF No. 1, Compl. ¶ ¶ 20, 21.)

As to Encore, Plaintiff alleges Doan Law Firm sent " one (1) written 'Cease and Desist Order' by mail dated April 19, 2011." (Id. ¶ 27.) The " Cease and Desist Order" provided, among other things, that " Defendants Cease and Desist all further communications with Plaintiff with respect to the debt." (Id. ¶ 28.)

Plaintiff alleges " Defendants physically received and had actual knowledge of the Cease and Desist Orders" and therefore " knew they were now prohibited from contacting Plaintiff by all means." (Id. ¶ ¶ 29, 35.) Plaintiff claims Defendants had actual knowledge that Plaintiff was represented by counsel, refused to pay the debt, disputed the validity of the debt, and was preparing to file for bankruptcy relief. (Id. ¶ ¶ 30, 32, 33, 34.)

Thereafter, Plaintiff alleges that " Defendants intentionally, willfully, deliberately, and knowingly refused to abide by the laws of" California's Rosenthal Fair Debt Collection Act (" Rosenthal Act" ), the federal Fair Debt Collection Act (" FDCPA" ), and the federal Telephone Consumer Protection Act (" TCPA" ). (Id. ¶ 41.)

More Specifically, Plaintiff claims " Defendants continued communications with Plaintiff, as further evidenced by the copies of letters sent to Plaintiff," which are attached to Plaintiff's Complaint as Exhibit C. (Id. ¶ 42.) Notably, the only letter from Encore that is included in Exhibit C is dated November 22, 2010--i.e., approximately five months before the Doan Law Firm allegedly sent Encore a " Cease and Desist Order." (See ECF No. 1-1 at 49; Compl. ¶ 27.)

Plaintiff further claims " Defendants continued to make at least twenty-five (25), probably more, unlawful calls to Plaintiff from March 16, 2011 through March 27, 2011. Plaintiff details the alleged calls in a log attached as Exhibit D to her Complaint. Encore ...


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