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Duell v. First National Bank of Omaha

United States District Court, S.D. California

July 29, 2015

KAREN DUELL, Plaintiff,
v.
FIRST NATIONAL BANK OF OMAHA; THE DUNNING LAW FIRM, Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are Defendant Dunning Law Firm's ("Dunning") Motion to Dismiss Counts I & II of the First Amended Complaint (ECF No. 11), and Defendant First National Bank of Omaha's ("FNBO") Motion to Dismiss Count III of Plaintiff's Complaint (ECF No. 12).

BACKGROUND

On November 20, 2014, Plaintiff Karen Duell initiated this action by filing a Complaint against Defendants Dunning and FNBO. (ECF No. 1). On January 9, 2015, Defendant FNBO filed a motion to dismiss. (ECF No. 7). On the same day, Defendant Dunning filed a motion to dismiss. (ECF No. 8).

On January 19, 2015, Plaintiff filed the First Amended Complaint asserting the following claims: (1) violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. section 1692, et seq., against Defendant Dunning; (2) violation of the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), California Civil Code sections 1788-1788.32, against Defendants Dunning and FNBO; and (3) violation of the California Consumer Credit Reporting Agencies Act, California Civil Code section 1785.1, et seq., against Defendant FNBO. (ECF No. 9).

On January 23, 2015, the Court issued an Order denying Defendants' motions to dismiss (ECF Nos. 7, 8) as moot. (ECF No. 10).

On February 5, 2015, Defendant Dunning filed the Motion to Dismiss Counts I & II of the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 11). On March 2, 2015, Plaintiff filed an opposition. (ECF No. 13). On March 11, 2015, Defendant Dunning filed a reply. (ECF No. 17). On the same day, Plaintiff filed an objection to Dunning's reply on grounds that the reply was untimely. (ECF No. 18).

On February 5, 2015, Defendant FNBO filed the Motion to Dismiss Count III of Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 12). On March 2, 2015, Plaintiff filed an opposition. (ECF No. 14). On March 9, 2015, Defendant FNBO filed a reply. (ECF No. 16).

On May 26, 2015, the Court issued an Order stating that:
IT IS HEREBY ORDERED that the parties shall submit supplemental briefing on the issue of whether Plaintiff's allegation that Defendant First National Bank of Omaha "reported Plaintiff's alleged delinquency to credit bureaus each month" (ECF No. 9 at 5) may constitute collection a activity within the meaning of the Fair Debt Collection Practices Act....

(ECF No. 19). On June 5, 2015, Defendant FNBO submitted a supplemental brief. (ECF No. 20). On June 9, 2015, Plaintiff submitted a supplemental brief. (ECF No. 21). On the same day, Defendant Dunning submitted a supplemental brief. (ECF No. 22). On June 19, 2015, Defendant FNBO submitted a reply. (ECF No. 23). On the same day, Defendant Dunning submitted a reply. (ECF No. 24).

ALLEGATIONS OF FIRST AMENDED COMPLAINT

"Sometime prior to February 24, 2014, Plaintiff is alleged to have incurred certain financial obligations to FNBO." (ECF No. 9 ¶ 23). "Sometime thereafter, Plaintiff allegedly fell behind in the payments allegedly owed on the alleged debt." Id. ¶ 24. "As a result, Plaintiff has received numerous written and telephonic communications from Defendant with regard to Plaintiff's alleged debt." Id. ¶ 25.

"Plaintiff contacted Dunning in an effort to amicably resolve Plaintiff's alleged debt." Id. ¶ 26. "Following confidential settlement discussions, Plaintiff and Dunning finalized a settlement with regard to Plaintiff's alleged debt alleged to be owed to FNBO." Id. ¶ 27. "Dunning memorialized the settlement via written communication dated February 24, 2014." Id. ¶ 28. The communication stated that "[FNBO] is willing to accept the sum of $6, 106.63 in monthly payments of $170.00, so long as the first payment is received by my office no later than March 7, 2014." Id. ¶ 29. The communication also stated that "[a]s long as you are current on your payments [FNBO] will refrain from further collection activities." Id. ¶ 30. "Plaintiff reasonably believed that compliance with the terms of the agreement would preclude any adverse actions by FNBO against Plaintiff, including the avoidance of demands for more than $170.00 per month, negative credit reporting in the event that Plaintiff paid at least $170.00 per month and a collection lawsuit." Id. ¶ 31.

"Despite the agreement, FNBO has continued its attempts to collect Plaintiff's alleged debt. FNBO's collection attempts falsely represent that Plaintiff is delinquent and that Plaintiff owes more than $170.00 per month. As a result, FNBO has inaccurately reported Plaintiff's alleged delinquency to the credit bureaus each month." Id. ¶ 33.

"FNBO now seeks to avoid liability by modifying the terms of the agreement as memorialized by Dunning's February 24, 2014 written communication. Specifically, FNBO claims it was not bound by Plaintiff's settlement agreement in any manner." Id. ¶ 34. "In the event that Dunning lacked authority to settle Plaintiff's alleged debt on behalf of FNBO and/or to make the representations in Dunning's February 24, 2014 memorialization, Dunning's conduct violated both the FDCPA and the RFDCPA." Id. ¶ 35.

Through this conduct, Dunning violated 15 U.S.C. § 1692e by using false, deceptive and misleading representations in connection with the collection of Plaintiff's alleged debt. This section is incorporated into the RFDPCA by Cal. Civ. Code § 1788.17; thus, Dunning also violated Cal. Civ. Code § 1788.17.
Through this conduct, Dunning violated 15 U.S.C. § 1692e(5) by taking action that could not legally be taken. This section is incorporated into the RFDPCA by Cal. Civ. Code § 1788.17; thus, Dunning also violated Cal. Civ. Code § 1788.17.
Through this conduct, Dunning violated 15 U.S.C. § 1692e(9) by distributing a written communication which created a false impression as its authorization and/or approval. This section is incorporated into the RFDPCA by Cal. Civ. Code § 1788.17; thus, Dunning also violated Cal. Civ. Code § 1788.17.
Through this conduct Dunning violated 15 U.S.C. § 1692e(10) by using false representations and deceptive means to collect Plaintiff's alleged debt. This section is incorporated into the RFDPCA by Cal. Civ.

Code § 1788.17; thus, Dunning also violated Cal. Civ. Code § 1788.17. Id. ¶ 36-39.

"Furthermore, FNBO also violated the RFDPCA by continuing collection activity with regard to Plaintiff's alleged debt, including reporting Plaintiff as delinquent to the credit bureaus." Id. ¶ 40.

Through this conduct, FNBO violated 15 U.S.C. § 1692e by using false, deceptive and misleading representations in connection with the collection of Plaintiff's alleged debt. This section is incorporated into the RFDPCA by Cal. Civ. ...

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