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Perez v. Ocwen Loan Servicing LLC

United States District Court, E.D. California

August 2, 2016




         On April 25, 2016, the court took under submission defendant’s motion to dismiss plaintiffs’ amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 32.) Having considered the parties’ arguments, for the reasons stated below, defendant’s motion to dismiss is granted and plaintiffs are granted leave to file a second amended complaint.


         Plaintiffs commenced this action on August 10, 2015, by filing a complaint and paying the required filing fee.[1] (Dkt. No. 1.) On December 21, 2015, the undersigned granted defendant’s motion to dismiss plaintiffs’ original complaint and granted plaintiffs leave to file an amended complaint. (Dkt. No. 19.) On January 7, 2016, plaintiffs’ filed an amended complaint. (Dkt. No. 20.) Plaintiffs’ amended complaint alleges causes of action for violation of the Fair Debt Collection Practices Act, (“FDCPA”), 15 U.S.C. § 1692, et seq., and the Telephone Consumer Protection Act, (“TCPA”), 47 U.S.C. § 227.[2] (Am. Compl. (Dkt. No. 20) at 7-10.[3]) On January 25, 2016, defendant filed the pending motion to dismiss and noticed the matter for hearing on March 10, 2016. (Dkt. No. 21.)

         On March 4, 2016, however, the undersigned continued the hearing of defendant’s motion to April 28, 2016, after plaintiffs failed to file an opposition or statement of non-opposition, and ordered plaintiff to file such on or before April 14, 2016. (Dkt. No. 28.) On March 8, 2016, plaintiffs filed an opposition. (Dkt. No. 30.) Defendant filed a reply on April 21, 2016. On April 25, 2016, defendant’s motion was taken under submission. (Dkt. No. 32.) On April 26, 2016, plaintiffs filed an unauthorized sur-reply styled as an opposition.[4] (Dkt. No. 33.)


         I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6)

         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “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). “A claim has facial plausibility when the plaintiff pleads factual content that allows 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).

         In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. See also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

         In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff’s complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).


         I. FDCPA

         “In order to state a claim under the FDCPA, a plaintiff must show: 1) that he is a consumer; 2) that the debt arises out of a transaction entered into for personal purposes; 3) that the defendant is a debt collector; and 4) that the defendant violated one of the provisions of the FDCPA.” Freeman v. ABC Legal Services Inc., 827 F.Supp.2d 1065, 1071 (N.D. Cal. 2011). As was true of defendant’s prior motion to dismiss, defendant’s motion to dismiss plaintiffs’ amended complaint argues that “[p]laintiffs cannot, as a matter of law, allege that [d]efendant was acting as [a] debt collector[] engaged in the process of collecting [a] debt from [p]laintiffs.” (Def.’s MTD (Dkt. No. 21) at 19.)

         As the court previously explained, “[t]he legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.” Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985) (emphasis added); see also 15 U.S.C. § 1692a(6)(F) (term “debt collector” ...

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