United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Motion to Dismiss filed by Defendant Patenaude & Felix, A.P.C. (ECF No. 16).
On December 17, 2013, Plaintiff Kristiane Smith commenced this action by filing a Complaint against Defendant Patenaude & Felix, A.P.C. (ECF No. 1). On February 3, 2014, Plaintiff filed a First Amended Complaint ("FAC") 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. (ECF No. 8). On July 23, 2014, the Court dismissed the FAC without prejudice. (ECF No. 12). On August 26, 2014, Plaintiff filed a Second Amended Complaint ("SAC"). (ECF No. 14).
On September 17, 2014, Defendant filed the Motion to Dismiss, accompanied by a request for judicial notice. (ECF No. 16). On October 1, 2014, Plaintiff filed an opposition. (ECF No. 18). On October 13, 2014, Defendant filed a reply. (ECF No. 19).
II. Allegations of the SAC
On April 25, 2013, Defendant "violated the FCRA by initiating a hard pull of Plaintiff's credit report from TransUnion without permissible purpose, thereby reducing her credit score." (ECF No. 14 at 3). "Defendant is attempting to collect an alleged but non-existent debt on behalf of its client TD BANK USA, N.A." Id. "TD BANK USA, N.A. bought the alleged but non-existent debt, in default, from TARGET INC. on or around March 13, 2013." Id.
"Defendant purposefully hid the suit it had filed on June 19, 2013 on behalf of TD BANK USA, N.A. from Plaintiff. Defendant did not serve the suit on Plaintiff until January, 2014, long after Plaintiff filed this Federal suit." Id. at 4. Plaintiff became aware of this lawsuit in November 2013 when she reviewed her credit report. The delayed discovery "is clear... by the abundance of action taken by Plaintiff after reviewing her credit report in November 2013...." Id. "On January 22, 2013, Plaintiff disputed the alleged debt, and sent a demand for validation on the account to TARGET NATIONAL BANK, to which TARGET refused and failed to respond." Id. at 3. On February 11, 2013, Plaintiff sent another demand for validation to Target Brands, Inc. (SAC Ex. B, ECF No. 14 at 23). On March 11, 2013, Plaintiff sent another demand for validation to Target Brands, Inc. (SAC Ex. C, ECF No. 14 at 30).
After becoming aware of the lawsuit filed by Defendant, Plaintiff diligently attempted to confirm validation of the alleged account with all 3 entities. None of which responded. Plaintiff has been diligent in her attempts to resolve matters involved with the alleged account for over 18 motions. All attempts have been ignored.
(ECF No. 14 at 4).
"Plaintiff does not owe any debt to TD BANK USA, N.A., PATENAUDE AND FELIX, or TARGET." Id. at 5. "Defendant PATENAUDE AND FELIX A.P.C had no reason to believe' that the alleged account was legitimate at the time it pulled Plaintiff's credit report. Defendant had no legitimate business purpose for obtaining Plaintiff's credit report." Id. Because Defendant purchased the account from TD Bank USA, N.A., Defendant "should have known that Plaintiff did not initiate a business transaction with its client TD Bank USA, N.A." Id. "It should have known that the alleged account does not involve, or belong to Plaintiff." Id. "Defendant had no evidence or reason to believe the alleged debt was legitimate, prior to Defendant pulling Plaintiff's credit report." Id. "Defendant was negligent in its duties in fulfilling the certification requirements pursuant to 15 USC 1681(e)(a), prior to pulling Plaintiff's credit report." Id.
"Defendant failed to send Plaintiff a 30 day validation notice within 5 days of the initial communication, which was on April 25, 2013 when Defendant pulled Plaintiff's credit report without permissible purpose." Id. "Defendant is continually attempting to collect a disputed debt. Plaintiff disputed the alleged debt numerous times with TARGET, prior to TD BANK'S purchase of the alleged account." Id. at 6. Defendant also misrepresented the amount of the alleged debt because "Defendant claims damages in the amount of $1, 760.59" in a state-court lawsuit but claimed $2, 043.09 in "the notice sent by Defendant on November 15, 2013." Id.
The SAC asserts seven claims for relief: (1) violation of the FCRA, 15 U.S.C. section 1681b; (2) violation of the FDCPA, 15 U.S.C. section 1692g; (3) violation of the RFDCPA, California Civil Code section 1788.17; (4) violation of the FDCPA, 15 U.S.C. section 1692e(2); (5) violation of the FDCPA, 15 U.S.C. section 1692e(8); (6) violation of the ...