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Varnado v. Midland Funding LLC

United States District Court, N.D. California

May 15, 2014

KAREN D VARNADO, Plaintiff(s),
v.
MIDLAND FUNDING LLC, Defendant(s)

Page 986

For Karen D Varnado, Plaintiff: Michael Robert Meinert, Meinert Law, Walnut Creek, CA.

For Midland Funding LLC, a Delaware Limited Liability Corporation Authorized to do Business in California, Midland Credit Management, Inc., a Kansas Corporation Authorized to do Business in California, Defendants: Tomio Buck Narita, LEAD ATTORNEY, Jeffrey A. Topor, Sarah Helene Scheinhorn, Simmonds and Narita LLP, San Francisco, CA; Lindsey Anne Morgan, Sinnott, Puebla, Campagne & Curet, APLC, San Francisco, CA.

Page 987

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [DOCKET NO. 15]

DONNA M. RYU, United States Magistrate Judge.

Defendants Midland Credit Management, Inc. (" MCM" ) and Midland Funding, LLC (" MF" ) (collectively, " Midland" ) have filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). [Docket No. 15.] Midland seeks dismissal of Plaintiff Karen Varnado's state law causes of action for negligence and intrusion

Page 988

upon seclusion, and Plaintiff's requests for punitive damages and declaratory and injunctive relief under the Fair Debt Collection Practices Act (" FDCPA" ), 15 U.S.C. 1692, and the Rosenthal Fair Debt Collection Practices Act (" Rosenthal Act" ), Cal. Civ. Code § 1788 et seq.

The court finds that the motion is appropriate for resolution without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons stated below, the motion is granted in part and denied in part.

I. FACTS

The following facts are taken from the allegations in the complaint. See Docket No. 1. Plaintiff obtained and used a credit card from Saks Fifth Avenue, through HSBC Bank Nevada, N.A. Compl. at ¶ 11. Plaintiff used the card primarily for personal, family and household purposes. Id. Plaintiff defaulted on her credit card debt. Id.

Sometime thereafter, the debt was sold or otherwise transferred to MF, a Delaware corporation, a debt buyer whose principal business is to purchase and collect debts owed, using various instrumentalities of interstate commerce. Compl. at ¶ ¶ 13-14, 33. MF subsequently directed MCM,[1] an affiliated company, to collect the debt. Compl. at ¶ 33.

On May 15, 2013, Plaintiff received a letter from Midland attempting to collect the debt. Compl. at ¶ 34. The letter included references to entities called " MCM," " Midland Funding LLC," " Midland Credit Management, Inc.", and " MCM Credit Reporting Department," and listed at least three addresses associated with these entities. Compl. at ¶ 34. The letter stated that " Midland Funding LLC" was entitled to payment in the amount of $9,766.24 for Plaintiff's account. Compl. at ¶ 37. The letter stated: " If you notify MCM, in writing, within thirty (30) days after receiving this notice that the debt, or any portion thereof, is disputed, MCM will obtain verification of the debt or a copy of a judgment (if there is a judgment) and MCM will mail you a copy of such verification or judgment." Compl. at ¶ 38. The letter also stated that collection calls and letters would not stop unless and until payment is tendered by Plaintiff and that a negative credit report may be submitted for failure to fulfill the terms of Plaintiff's credit obligations. Compl. at ¶ ¶ 36, 39.

On June 4, 2013, Plaintiff sent Midland a letter requesting that it cease all telephonic contact, stating that the debt was disputed and requesting a validation of the debt. Compl. at ¶ 40. Plaintiff has not received any verification of the debt. Compl. at ¶ 38.

Despite Plaintiff's request that Midland cease telephonic contact, Midland and its employee Sam Sheppy [2] made " repeated and continuous phone calls, including 3 to 5 times daily within June and July of 2013." Compl. at ¶ 41. Defendants called Plaintiff from multiple locations, phone numbers, and caller ID names. Compl. at ¶ 58. Midland called Plaintiff's home and cell phones " continuously and incessantly for weeks, including [on] nights and weekends," using the autodialing technology " to make repeated and continuous telephone calls during that time" ...


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