United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT’S MOTION TO
DISMISS
EDWARD
J. DAVM, United States District Judge
Plaintiff
Leslie Frost (“Plaintiff”) filed a complaint
against Defendant Resurgent Capital Services, LP
(“Defendant”) alleging that Defendant violated
multiple sections of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et. seq., and
the Rosenthal Fair Debt Collection Practices Act
(“RFDCPA”), California Civil Code § 1788 et.
seq., by attempting to collect post charge-off[1] interest on the
debt allegedly owed by Plaintiff. Dkt. No. 18
(“FAC”) at ¶16.
Federal
jurisdiction arises pursuant to 28 U.S.C. § 1331.
Presently before the court is Defendant’s motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). Dkt.
No. 20 (“Mot”). Plaintiff opposes the motion.
Dkt. No. 21 (“Opp”). Having carefully reviewed
the relevant papers, the Court GRANTS Defendant’s
Motion to Dismiss for the reasons explained below.
I.
BACKGROUND
Plaintiff
alleges Defendant contacted her multiple times in the year
prior to the filing of the complaint to collect a debt
purportedly owed by Plaintiff to General Electric
(“GE”). FAC at ¶ 4. GE, the original
creditor and owner of the debt, sold it to Defendant on or
about September 25, 2012, which was identified as the
debt’s approximate date of charge-off. Id. at
¶ 7. The debt, when sold to Defendant, amounted to
$547.96. Id. at 14.
Thereafter,
Plaintiff alleges GE stopped sending her monthly statements,
ceased charging interest on the debt in accordance with its
regular business practice, and effectively waived its right
to collect post charge-off interest. Id. at
¶¶ 6, 8, 10. Finally, Plaintiff alleges Defendant
attempted to collect $604.01 on January 14, 2015 - an amount
in excess of the $547.96 debt allegedly owed - in a violation
of the FDCPA and the RFDCPA. Id. at ¶¶ 15,
16, 19.
II.
LEGAL STANDARD
Federal
Rule of Civil Procedure 8(a) requires a plaintiff to plead
each claim with sufficient specificity to “give the
defendant fair notice of what the...claim is and the grounds
upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotations
omitted). The factual allegations “must be enough to
raise a right to relief above the speculative level”
such that the claim “is plausible on its face.”
Id. at 556-57. A complaint which falls short of the
Rule 8(a) standard may be dismissed if it fails to state a
claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate
only where the complaint lacks a cognizable legal theory or
sufficient facts to support a cognizable legal theory.”
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d
1097, 1104 (9th Cir. 2008).
When
deciding whether to grant a motion to dismiss, the court must
generally accept as true all “well-pleaded factual
allegations.” Ashcroft v. Iqbal, 556 U.S. 662,
664 (2009). The court must also construe the alleged facts in
the light most favorable to the plaintiff. Love v. United
States, 915 F.2d 1242, 1245 (9th Cir. 1988). However,
“courts are not bound to accept as true a legal
conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678.
III.
DISCUSSION
A.
FDCPA
The
FDCPA is a remedial statute aimed at curbing what Congress
considered “an industry-wide pattern of and propensity
towards abusing debtors.” Caudillo v. Portfolio
Recovery Assoc’s, LLC, No. 12-CV-200-IEG, 2013 WL
4102155, at *2 (S.D. Cal. Aug. 13, 2013). To that end, the
statute prohibits debt collectors from trying to collect any
amount that is not “expressly authorized by the
agreement creating the debt or permitted by law.” 15
U.S.C. § 1692f(1). A debt collector may not use unfair
or unconscionable means to collect or attempt to collect any
debt. 15 U.S.C. 1692(f). In order to state a claim under the
FDCPA, a plaintiff must allege facts that establish the
following: (1) plaintiff has been the object of collection
activity arising from a consumer debt; (2) the defendant
qualifies as a “debt collector” under the FDCPA;
and (3) the defendant has engaged in a prohibited act or has
failed to perform a requirement imposed by the FDCPA.
Dang v CitiMortgage, Inc., No:11-CV-05036-EJD, 2012
WL762329, at *3 (N.D. Cal. Mar. 7, 2012).
Plaintiff
alleges sufficient facts to satisfy the first two prongs.
Plaintiff was the object of collection activity because she
alleges Defendant sent her a debt collection letter in an
attempt to collect $604.01. The second prong is satisfied
because Defendant admits that it is a debt collector as
defined by the FDCPA. As such, the motion’s outcome
will depend on whether Plaintiff alleged sufficient facts to
establish that Defendant engaged in a prohibited act or
failed to perform a requirement imposed by the FDCPA.
i.
Defendant is entitled to collect interest ...