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Momoh v. Wells Fargo Bank NA

United States District Court, N.D. California

July 1, 2016

RAMAT B MOMOH, Plaintiff,



         Before the Court is Defendant Wells Fargo Bank, N.A's ("Defendant") motion to dismiss the complaint, Dkt. No. 1 ("Compl."), filed by Plaintiff Ramat B. Momoh ("Plaintiff"). Dkt. No. 15 ("Mot."). Defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) on the basis that Plaintiff's ongoing bankruptcy proceeding precludes her claims. Plaintiff has filed an opposition, Dkt. No. 20 ("Opp."), and Defendant has replied, Dkt. No. 22 ("Reply").

         For the reasons set forth below, the Court DENIES Defendant's motion to dismiss.

         I. BACKGROUND

         A. Factual Allegations

         On January 6, 2014, Plaintiff filed a petition for bankruptcy under Chapter 13 of the United States Bankruptcy Code. Compl. ¶ 12. The case was confirmed on October 31, 2014. Id.

         In or around March 2015, Defendant began calling Plaintiff's cell phone to attempt to collect a purported debt. Id. ¶¶ 13-14. Plaintiff told the caller that she had filed for bankruptcy and told Defendant to contact her bankruptcy attorney. Id. ¶ 15. She suspects that the calls were made using an automated telephone dialing system because she heard a short pause before the caller began speaking. Id. ¶ 16. Even though Plaintiff instructed Defendant to not contact her any further, Defendant called her several more times. Id. ¶¶ 19-20. Defendant also sent collection letters and account statements to Plaintiff. Id. ¶ 21 & Ex. A. On April 9, 2015 and again on May 7, 2015, a notice was placed on the front door of Plaintiff's residence asking her to contact Defendant. Id. ¶¶ 22-23 & Exs. B & C. Defendants' conduct has caused Plaintiff extreme emotional distress and mental anguish. Id. ¶ 24.

         B. Procedural History

         On October 13, 2015, Plaintiff filed the instant lawsuit against Defendant. She asserts that Defendant's debt collection activities violated the Telephone Consumer Protection Act, 27 U.S.C. § 227, et seq. ("TCPA"), and the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788, et seq. ("Rosenthal Act"). Compl. ¶¶ 26-31.

         Defendant now moves to dismiss. Defendant contends that Plaintiff has failed to state a claim upon which relief can be granted for three independent reasons. First, Defendant argues that Plaintiff is judicially estopped from raising any claims that were not mentioned in her bankruptcy plan or raised in the bankruptcy court before Defendant filed its motion to dismiss. Mot. at 4-9; Reply at 2-5. Second, Defendant posits that during the pendency of her bankruptcy, Plaintiff does not have standing to pursue individual claims, but can only pursue claims for the benefit of her bankruptcy estate, on whose behalf she does not sue. Id. at 9-11. And third, Defendant argues that Plaintiff's claims are preempted by the Bankruptcy Code. Id. at 11-12.


         Before turning to the substance of the motion, the Court addresses Defendant's request for judicial notice. Dkt. No. 16 ("RJN"). The materials of which Defendant seeks notice include: (1) the docket for Plaintiff's bankruptcy case; (2) Defendant's proof of claim on Plaintiff's debt; (3) Plaintiff's Chapter 13 bankruptcy plan; and (4) the bankruptcy court's confirmation order. Id. at 1.

         The doctrine of judicial notice permits district courts to take as true "a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). The existence of proceedings in other courts, including orders, is the proper subject of judicial notice when those materials are directly related to the case. Tigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011) (internal citations omitted). But it is inappropriate to take judicial notice of facts contained in other filings and orders from other proceedings for the truth of the matters they assert. See Lasar v. Ford Motor Co., 399 F.3d 1101, 1117, n.14 (9th Cir. 2005) (declining to take judicial notice of factual findings made in another proceeding "because [defendants were] offering the factual findings contained in the order for the purpose of proving the truth of the factual findings contained therein").

         The Court takes judicial notice of the materials from Plaintiff's bankruptcy proceeding to the extent that they are offered to explain the procedural posture of this action. See Tigueros, 658 F.3d at 987. But the Court declines to take judicial notice to the extent that Defendant offers these ...

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