United States District Court, S.D. California
ORDER DENYING MOTION TO DISMISS
Roger T. Benitez United States District Judge.
the Court is the motion to dismiss Plaintiff's First
Amended Complaint filed by Defendants Pacific Ridge
Neighborhood Homeowners Association and N.N. Jaeschke, Inc.
(Docket No. 26.) The motion is fully briefed. For the reasons
that follow, the Moving Defendants' motion is
Vincent Manikan is the owner of real property in San Diego,
California. Defendant Pacific Ridge Homeowners Association
(“Pacific Ridge”) is a homeowner's
association; Plaintiff's real property is located within
Pacific Ridge's area. Defendant N.N. Jaeschke
(“Jaeschke”) is a property management company
Pacific Ridge engages to manage its properties, including
collection of homeowner's dues.
20, 2012, Plaintiff filed a Chapter 13 bankruptcy case in the
U.S. Bankruptcy Court for the Southern District of
California. Plaintiff scheduled a claim held by
Pacific Ridge for $3, 047.04 in alleged arrears. According to
Plaintiff's Initial Chapter 13 Plan (“Chapter 13
Plan”), the entire amount of Pacific Ridge's claim
would be paid, and Plaintiff would thereafter remain current
on his homeowner's dues.
September 4, 2012, the Bankruptcy Court issued an order
confirming Plaintiff's Chapter 13 Plan. On June 20, 2013,
Jaeschke, as a collection agent for Pacific Ridge, filed a
Proof of Claim in the Bankruptcy Court, which represented the
true amount of arrears Plaintiff owed to Pacific Ridge at the
time Plaintiff filed his bankruptcy case was $2, 978.24.
Subsequently, on March 17, 2014, Jaeschke (on behalf of
Pacific Ridge) advised Plaintiff's Chapter 13 Trustee in
writing that Plaintiff's arrears had been fully paid, and
requested the Trustee not forward any additional payments.
response to Jaeschke's correspondence, Plaintiff's
Chapter 13 Trustee filed a “Notice of Intent to
Reconsider and Re-Allow Proof of Claim, ” which
certified that the true pre-bankruptcy petition amount owed
by Plaintiff to Jaeschke (on behalf of Pacific Ridge) was $2,
277.10. On November 24, 2015, the Plaintiff's Chapter 13
Trustee filed a “Notice of Final Cure Payment and
Completion of Payments Under the Plan.” This Notice
advised Jaeschke that Plaintiff's Chapter 13 Trustee had
paid it the full amount of Pacific Ridge's claim against
Plaintiff in the amount of $2, 277.10.
Plaintiff has made all payments owed to Pacific Ridge.
However, sometime before September 6, 2016, Pacific Ridge
incorrectly determined Plaintiff owed $2, 597.04 in
Homeowner's Dues, and referred Plaintiff's account to
Jaeschke and Defendant Peters & Freedman, LLP
(“P&F”) for collection, including initiation of
a nonjudicial foreclosure on Plaintiff's real property
based on the erroneously alleged arrears for $2, 597.04. On
behalf of Pacific Ridge and Jaeschke, and with their
knowledge and consent, P&F retained Defendant Advanced
Attorney Services, Inc. (“AAS”), a registered
process server that engages in attorney support services,
including debt collection.
September 2, 2016, AAS employee Dakotah Douglas
(“Douglas”) entered Plaintiff's backyard by
pushing open and breaking Plaintiff's closed gate,
ultimately causing an estimated $1, 218 in damage to the gate
and its surrounding posts and windows. Douglas proceeded
around the side of Plaintiff's backyard and began
forcefully banging on Plaintiff's kitchen window, which
scared Plaintiff's cousin, who phoned 911 and called for
Plaintiff, who was upstairs at the time.
rushed downstairs and saw Douglas banging on the kitchen
window. Plaintiff was unable to understand what Douglas was
saying through the glass, and became fearful that Douglas was
attempting a break-in and would physically harm Plaintiff and
his family. Douglas then moved from outside the kitchen
window and further around Plaintiff's backyard before
banging loudly on a bedroom window, which woke up and
frightened Plaintiff's mother who had been resting in the
this time, the police started to arrive, which prompted
Douglas to run to the front yard. When the police arrived at
Plaintiff's property, Plaintiff opened his door and heard
Douglas explain to the police that he had been hired to serve
Plaintiff with a Notice of Default on behalf of Pacific
Ridge. Douglas then provided Plaintiff with a copy of the
Notice of Default from Pacific Ridge. The Notice of Default
had a stamped recordation date of April 9, 2012, citing a
balance owed as of April 9, 2012, and stated that it was from
P&F at the direction of Pacific Ridge and Jaeschke.
September 6, 2016, Plaintiff called P&F to explain that
he had previously repaid all pre-bankruptcy arrears to
Pacific Ridge. P&F's representative, “Marcella,
” explained that “according to her records, the
balance provided to [P&F] by [Jaeschke] on behalf of
[Pacific Ridge]” was accurate and that Plaintiff was in
arrears in the amount of $2, 597.04.
February 2, 2017, Plaintiff filed his initial complaint in
the San Diego Superior Court alleging violations of the
Federal Fair Debt Collection Practices Act and
California's Rosenthal Fair Debt Collection Practices Act
(“Rosenthal Act”). (Docket No. 1-2.) On March 7,
2017, Plaintiff's action was removed to this Court.
(Docket No. 1.) On July 21, 2017, the Court granted
Plaintiff's motion to amend his complaint to add a new
defendant (AAS) and assert a new claim for trespass. (Docket
No. 21.) On July 24, 2017, Plaintiff filed the operative
First Amended Complaint (“FAC”). (Docket No. 22.)
Pacific Ridge and Jaeschke (“Moving Defendants”)
now seek dismissal of the claims asserted against them in the
FAC pursuant to Federal Rule of Civil Procedure 12(b)(6).