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Mayen v. New Penn Financial, LLC

United States District Court, S.D. California

May 29, 2018

JULIO MAYEN, Plaintiff,


          Hon. Janis L. Sammartino United States District Judge

         Presently before the Court is Defendant New Penn Financial, LLC's Motion to Dismiss Plaintiff's Complaint or for a More Definite Statement, (“MTD, ” ECF No. 18). Also before the Court are Plaintiff Julio Mayen's Response in Opposition and Objection to, (“Opp'n, ” ECF No. 23), and Defendant's Reply in Support of, (“Reply, ” ECF No. 24), Defendant's Motion, as well as Defendant's Request for Judicial Notice in Support of Motion to Dismiss, (“RJN, ” ECF No. 18-3). The Court vacated the hearing on the Motion and took the matter under submission pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 25.) Additionally, Plaintiff filed a Motion to Strike Defendant's Reply, (ECF No. 26), and Defendant filed a Response in Opposition, (ECF No. 27), to Plaintiff's Motion. The Court vacated the hearing on the Motion to Strike and took the matter under submission pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 28.) After considering the parties' arguments and the law, the Court GRANTS Defendant's Request for Judicial Notice, GRANTS Defendant's Motion to Dismiss, and DENIES Plaintiff's Motion to Strike.


         On December 27, 2004, Plaintiff Julio Mayen purchased a residential property located at 15335 Castle Peak Lane, Jamul, California 91935 (the “Property”) with a $1, 088, 000 loan, secured by a deed of trust on the Property, from Countrywide Home Loans, Inc. (First Am. Compl. (“FAC”), ECF No. 15, ¶ 18.) Plaintiff “allegedly defaulted on the loan” on March 1, 2009. (Id. ¶ 19.) On January 7, 2014, Plaintiff alleges that he received a letter from Resurgent Capital Services L.P. (“Resurgent”) stating that Resurgent acquired the servicing rights of Plaintiff's defaulted loan. (Id. ¶ 20; Ex. A-1.) In response, Plaintiff claims he “sent Resurgent a debt validation letter disputing the amount and validity of the debt” on January 31, 2014. (Id. ¶ 21; Ex. B.) On March 4, 2014, Plaintiff alleges he received a letter from Resurgent and Defendant Shellpoint indicating that the entities had merged and Resurgent transferred servicing rights to Defendant Shellpoint. (Id. ¶ 22; Ex. C.) In response, Plaintiff claims he “sent Shellpoint a 2nd Request for Debt Validation letter disputing the amount and validity of the debt” on March 31, 2014. (Id. ¶ 23, Ex. D.)

         Plaintiff further alleges that in response to Plaintiff's letters disputing his debt, “Shellpoint has provided documents as if Plaintiff has requested a Qualified Written Request (QWR) instead of account-level documents substantiating the amount and validity of the debt.” (Id. ¶ 24; Ex. E.) In addition, Plaintiff alleges that Defendant Shellpoint sent Plaintiff seven demands for payment without providing any “account-level documentation substantiating the amount of the debt.” (Id. ¶ 25; Exs. F-1 to F-7.)

         Plaintiff filed a complaint against Defendant on January 11, 2017, alleging causes of action under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”) and the Rosenthal Fair Debt Collection Practices Act, California Civil Code section 1788, et seq. (“RFDCPA”). (See generally ECF No. 1.) On March 17, 2017, Defendant moved to dismiss Plaintiff's complaint or for a more definite statement. (ECF No. 6.) The Court granted Defendant's motion, (ECF No. 11). Plaintiff then filed his First Amended Complaint, resulting in the present motions.


         Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint “fail[s] to state a claim upon which relief can be granted, ” generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual allegations, ' . . . it [does] demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A complaint will not suffice “if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557).

         In order to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent with' a defendant's liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” contained in the complaint. Id. This review requires context-specific analysis involving the Court's “judicial experience and common sense.” Id. at 678 (citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id.

         Because this case comes before the Court on a motion to dismiss, the Court must accept as true all material allegations in the complaint, and must construe the complaint and all reasonable inferences drawn therefrom in the light most favorable to Plaintiff. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). When a plaintiff appears pro se, the court must be careful to construe the pleadings liberally and to afford the plaintiff any benefit of the doubt. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Thompson, 295 F.3d at 895. Where a complaint does not survive 12(b)(6) analysis, the Court will grant leave to amend unless it determines that no modified contention “consistent with the challenged pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schriber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). Furthermore, “before dismissing a pro se complaint the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively.” Ferdick v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992).


         I. Motion to Strike

         The Court addresses Plaintiff's Motion to Strike first because Plaintiff moves the Court to strike Defendant's Reply as untimely. (ECF No. 26, at 6.) Specifically, Plaintiff states that Defendant's Reply brief was filed January 5, 2018, but the brief was due January 4, 2018 according to the briefing schedule published by this Court on November 6, 2017, (see ECF No. 20, at 2). (ECF No. 26, at 6.) In the same order, the Court set a deadline for Plaintiff's Opposition brief for December 28, 2017. (Id.)

         Defendant responds that a plaintiff who cannot file electronically has a duty to mail his brief to the opposing party three days prior to the deadline for filing with the court. (ECF No. 27, at 3 (citing Civil Local Rule 7.1(e)(4)).) Defendant argues that it late-filed Reply brief was a symptom of Plaintiff's late-filed Opposition. (Id.)

         Civil Local Rule 7.1(e)(4) requires parties who mail motions or oppositions to mail service for those motions or oppositions three days before the court deadlines. The rule also states “[t]he extension of time for service does not extend court filing deadlines.” Civil Local R. 7.1(e)(4). By Plaintiff's own admission, he mailed his Opposition to Defendant on December 28, 2017, the deadline for filing with the Court. (ECF No. 26, at 7.) Thus, Plaintiff did not comply with the mail service deadline, which required Plaintiff to send his Opposition three days before the Court-imposed filing date of December 28, 2017.[1]

         The intent behind Civil Local Rule 7.1(e)(3) and the Court's briefing schedule is to allow a defendant a full seven days to read and respond to a plaintiff's opposition brief. Because Plaintiff's Opposition was mailed to Defendant on December 28, 2017, there was no way for Defendant to receive its full seven days to respond. Moreover, Plaintiff's Opposition was not timely served on Defendant. The Court finds that the late filings-by both parties-constitute harmless error. Therefore, the Court DENIES Plaintiff's Motion to Strike, (ECF No. 26).

         II. Request for Judicial Notice

         Defendant's Motion to Dismiss is accompanied by a Request for Judicial Notice. (See generally RJN.) Although within the context of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court generally may not consider matters outside of the pleadings, see Fed. R. Civ. P. 12(d), it is nonetheless “appropriate for the Court to take notice of ‘relevant facts obtained from the public record.'” See Papasan v. Allain, 478 U.S. 265, 298 (1986); see also Harris v. Cnty. of Orange, 682 F.3d 1126, 1132-33 (9th Cir. 2012) (noting that a court may “take judicial notice of undisputed matters of public record” and that “documents not attached to a complaint may be considered if no party questions their authenticity and the complaint relies on those documents” (citing Lee v. City of Los Angeles, 250 F.3d 668, 688, 689 (9th Cir. 2001))).

         Defendant requests the Court take judicial notice of fourteen exhibits in support of its Motion.[2] Defendant contends that its requests support its contention that Plaintiff's claim should be barred by judicial estoppel. (See MTD 4-5.)[3]

         Plaintiff opposes the request because, according to Plaintiff, Defendant is “trying to make this case about [Plaintiff's] alleged debt.” (Opp'n 7.) Plaintiff further argues that the exhibits filed by Defendant “are irrelevant in this case for the simple reason that this case is about the conduct of Shellpoint as they attempted to collect an alleged debt” and that “[t]his is a very straight forward claim for violations of the FDCPA and the Rosenthal Act resulting from Shellpoint's conduct and has nothing to do with any alleged debt.” (Id. (emphasis omitted).) Specifically, Plaintiff concedes that Defendant's exhibits one through three could be admitted to prove that they exist, but not for the truth of the contents documents themselves. (See Id. at 8-11.) Plaintiff argues exhibit four is a “void document” and exhibits five through fourteen are not relevant to the case. (Id. at 11.)

         In reply, Defendant argues that all the documents it submitted are “matters of public record” and courts routinely consider these types of documents without converting a motion to dismiss into a motion for summary judgment. (Reply 2 (citing, e.g., Villavalzo v. America's Servicing Co., No. CV 11-4868 CAS (MANx), 2012 WL 3018059, at *1 n.1 (C.D. Cal. July 23, 2012)).) Defendant points the Court to Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256 (Ct. App. 2011), where the California Court of Appeal considered a similar argument as Plaintiff advances here. (Reply 3.)

         The Court will judicially notice Defendant's exhibits for the fact of their existence. The Court does not rely on exhibits for the truth asserted within those documents. The exhibits related to Plaintiff's various bankruptcy litigation are also judicially noticeable. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). Accordingly, the ...

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