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Garcia v. Creditors Specialty Service, Inc.

United States District Court, N.D. California, San Jose Division

June 16, 2016

MARITES MONTEMAYOR GARCIA, Plaintiff,
v.
CREDITORS SPECIALTY SERVICE, INC., et al., Defendants.

          ORDER DENYING DEFENDANTS' MOTION TO DISMISS [Re: ECF 75]

          BETH LABSON FREEMAN JUDGE

         Defendants Creditors Specialty Service, Inc. ("CSS"), and Charles Stanley, Jr. ("Stanley") (collectively, "Defendants") filed a motion to dismiss Plaintiff Marites Montemayor Garcia's ("Plaintiff") claims alleging violations of the Fair Debt Collection Practices Act ("FDCPA") and Rosenthal Fair Debt Collection Practices Act ("RFDCPA"). ECF 74. The Court, finding this matter appropriate for disposition without oral argument pursuant to Civ. L.R. 7-1(b), vacated the hearing. ECF 71. After reviewing the parties' written submissions[1] and the Second Amended Complaint ("SAC"), and for the reasons set forth below, the Court DENIES Defendants' motion to dismiss.

         I. BACKGROUND

         Plaintiff incurred a debt on a consumer credit account issued by Provident Credit Union. SAC ¶ 12. After experiencing financial hardship, Plaintiff defaulted on the debt. Id. at ¶ 13. Thereafter, the debt was transferred to Defendant CSS for collection. Id. ¶ 14. Plaintiff alleges that Defendant Stanley is or was an officer, director, employee, and agent of Defendant CSS. Id. at ¶ 10. According to Plaintiff, Defendants mailed their collection letters in window envelopes, which exposed portions of the envelope's contents. Id. at ¶ 26.

         On May 1, 2013, Defendants sent a collection letter to Plaintiff using a window envelope which exposed portions of the letter through a glassine window. Id. at ¶¶ 15-19, 22. Visible on the face of the envelope was Defendant CSS's name, its return address, and a "large red dollar sign logo, " id. at ¶ 21; Exh. 1 to SAC at 2, ECF 74-1, and Plaintiff's name and address, and the words "SPECIAL SETTLEMENT OFFER" in bold 14 point type could be seen through the glassine window, id. at ¶ 22; Exh. 1 to SAC at 2, ECF 74-1. According to Plaintiff, Defendant Stanley personally participated in collecting Plaintiff's alleged debt. SAC ¶ 25. After receiving this letter, Plaintiff filed suit against Defendants for allegedly violating the FDCPA and RFDCPA.

         II. DISCUSSION

         A motion to dismiss under Rule 12(b)(6) concerns what facts a plaintiff must plead on the face of the complaint. Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Any complaint that does not meet this requirement can be dismissed pursuant to Rule 12(b)(6). A "short and plain statement" demands that a plaintiff pleads "enough facts to state a claim to relief that is plausible on its face, " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), that would "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must "accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

         III. DISCUSSION

         The Court has already gone through one round of motions to dismiss. Order Granting in Part and Denying in Part Motion to Dismiss ("Order"), ECF 73. In the SAC, Plaintiff alleges that the collection letter sent by Defendants on May 1, 2013 violates several section of the FDCPA and the corresponding sections of the RFDCPA. Specifically, Plaintiff believes Defendants violated 15 U.S.C. §§ 1692c(b), 1692f(7), and 1692f(8), and Cal. Civil Code §§ 1788.12(b), 1788.12(d), and 1788.17. SAC ¶¶ 34, 43. In this latest motion to dismiss, Defendants move to dismiss all of Plaintiff's claims except those under 15 U.S.C. § 1692f(8) and Cal. Civ. Code § 1788.17. Defs. Mot. 2, ECF 75.

         i. 15 U.S.C. §§ 1692c(b)

         Under section 1692c(b), "a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer." The statute defines "communication" as "the conveying of information regarding a debt directly or indirectly to any person through any medium." 15 U.S.C. § 1692a(2). In the Court's prior Order addressing the First Amended Complaint, the Court held:

Plaintiff's allegation that Defendants communicated with third parties about her debt is conclusory. Plaintiff provides no facts as to who the third parties are that Defendants communicated with. Absent any factual detail about the third parties, Plaintiff has not given Defendants fair notice of her claim.

         Order 4, ECF 73. In the SAC, Plaintiff added factual allegations in paragraph 20, which stated "several people had access to Plaintiff's mailbox…including, but not limited to employees of the U.S. Postal Service, Plaintiff's postal carrier, Plaintiff's adult child, and Plaintiff's roommate…." SAC ¶ 20, ECF 74.

         Defendants argue that there does not appear to be any communications with a third party because the only way anyone could have learned of the letter's contents was by "‘snooping' into another persons (sic) mail." Defs. Mot. 5, ECF 75. Plaintiff counters that her additional allegations provide sufficient details as to who ...


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