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Smith v. Law Offices of Patenaude & Felix, Apc

United States District Court, S.D. California

July 23, 2014

KRISTIANE SMITH, Plaintiff,
v.
LAW OFFICES OF PATENAUDE & FELIX, A.P.C., Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Motion to Dismiss filed by Defendant Law Offices of Patenaude & Felix A.P.C. (ECF No. 8).

BACKGROUND

On December 17, 2013, Plaintiff initiated this action by filing a Complaint against Defendant Law Offices of Patenaude & Felix, A.P.C. (ECF No. 1). On February 3, 2014, Plaintiff filed a First Amended Complaint alleging violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681b ("FCRA"), the Fair Debt Collection Practices Act, 15 U.S.C. § 1692g(a) ("FDCPA"), and the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788.15(a) ("RFDCPA"). (ECF No. 6).

On February 17, 2014, Defendant filed a Motion to Dismiss for Failure to State a Claim. (ECF No. 8). On March 3, 2014, Plaintiff filed a response to the Motion to Dismiss. (ECF No. 9). On March 10, 2014, Defendant filed a reply. (ECF No. 10).

ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

Plaintiff alleges that on April 25, 2013, Defendant initiated a "hard pull of Plaintiff's credit report from TransUnion without permissible purpose, thereby reducing her credit score" and violating the FCRA. (ECF No. 6 at ¶ 7). Plaintiff alleges that Defendant violated the FDCPA because it "did not act in accordance with the provisions and definitions in regards to the term account', " and "failed to provide a 30 day validation notice to the Plaintiff." Id. at ¶¶ 7-8. Plaintiff alleges that Defendant violated the RFDCPA when it "attempted to collect on consumer debt when service of process was not legally effected" and that she had no contractual agreement with Defendant. Id. at ¶¶ 9-10. Plaintiff demands $1, 000 in damages for violation of each statute, totaling $3, 000 in damages. Id. at ¶¶ 14, 19, 26.

DISCUSSION

I. Request for Judicial Notice

Defendant has submitted a request for judicial notice of the summons and complaint filed on June 19, 2013, in the Superior Court of California for the County of Sacramento, entitled TD Bank USA, N.A., As Successor in Interest to Target National Bank v. Kristiane Smith, case number XX-XXXX-XXXXXXXX. (ECF No. 8-1). Federal Rule of Evidence 201 provides that "a judicially noticed fact must be one not subject to reasonable dispute in that it is... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed R. Evid. 210(b). Courts may take judicial notice of their own records, and may also take judicial notice of other courts' proceedings if they "directly relate to matters before the court." Hayes v. Woodford, 444 F.Supp.2d 1127, 1136-37 (S.D. Cal. 2006); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). The unopposed request for judicial notice is granted.

II. Contentions of the Parties

Defendant contends that "Plaintiff obtained and used a credit card issued by TD Bank, U.S.A., N.A., as successor in interest to Target National Bank, and failed to pay it." (ECF No. 8 at 3). Defendant contends that it is a debt collector who was retained by Target National Bank ("Target") to collect Plaintiff's delinquent credit card debts. Defendant contends that it pulled Plaintiff's credit report for the purpose of collection on the account, a permissible purpose under the FCRA. Defendant contends Plaintiff's First Amended Complaint fails to allege sufficient facts to state a claim and dismissal without leave to amend is warranted because the defects of the First Amended Complaint are incurable.

Plaintiff contends she was not aware of Defendant's "hard pull" of her credit report until November 10, 2013 after reviewing her credit report. (ECF No. 9 at 2). Plaintiff contends that Defendant failed to send a demand request, filed suit without notice, and failed to send initial communication to Plaintiff. Id. at 4-5. Plaintiff contends she never received the initial demand letter and that Defendant has no evidence to prove the initial demand letter was mailed to her, including proof of mailing or receipt. Id. at 5. Plaintiff contends Defendant obtained her credit report without a permissible purpose. Id. at ...


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