United States District Court, S.D. California
ORDER GRANTING IN PART MOTION TO DISMISS
LARRY ALAN BURNS CHIEF UNITED STATES DISTRICT JUDGE.
Jose Antonio Gonzalez, through counsel, filed his complaint
in this case bringing claims under the federal Fair Debt
Collection Practices Act (FDCPA) and Fair Credit Reporting
Act (FCRA); under California's Rosenthal Fair Debt
Collection Practices Act (RFDCPA) and Consumer Credit
Reporting Agencies Act (CCCRAA); and for declaratory relief,
apparently under the federal Declaratory Judgment Act.
Defendant Sallie Mae Bank (“SMB”) moved to
12(b)(6) motion to dismiss tests the sufficiency of the
complaint. Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001). The pleading standard is governed by Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 (2007);
and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Under Fed.R.Civ.P. 8(a)(2), “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” is required, in order to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Twombly, 550
U.S. at 554-55. “Factual allegations must be enough to
raise a right to relief above the speculative level . . .
.” Id. at 555. “[S]ome threshold of
plausibility must be crossed at the outset” before a
case is permitted to proceed. Id. at 558 (citation
omitted). The well-pleaded facts must do more than permit the
Court to infer “the mere possibility of
misconduct”; they must show that the pleader is
entitled to relief. Iqbal, 556 U.S. at 679.
determining whether a complaint states a claim, the Court
accepts all allegations of material fact in the complaint as
true and construes them in the light most favorable to the
non-moving party. Cedars-Sinai Med. Ctr. v. Nat'l
League of Postmasters of U.S., 497 F.3d 972, 975 (9th
Cir. 2007) (citation omitted). “Conclusory allegations
and unreasonable inferences, however, are insufficient to
defeat a motion to dismiss.” Sanders v. Brown,
504 F.3d 903, 910 (9th Cir. 2007). Nor does the Court
“assume the truth of legal conclusions merely because
they are cast in the form of factual allegations . . .
.” Navajo Nation v. Dept. of Interior, 876
F.3d 1144, 1163 (9th Cir. 2017) (citation and quotation marks
to the complaint, Defendant Rafael Hernandez asked Gonzalez
to co-sign for a student loan he was planning to apply for.
Gonzalez alleges he provided Hernandez with his date of birth
and social security number, but wanted more information
before he would agree to be Hernandez's co-signer.
Gonzalez alleges Hernandez applied for the loan anyway,
somehow listing Gonzalez as a co-signer, and the loan was
loan apparently became past due, and SMB attempted to collect
from Gonzalez. Although Gonzalez is suing both SMB and
Hernandez, only SMB has moved to dismiss; Hernandez has not
points out that it is a lender, not a debt collector for
purposes of the FDCPA. The complaint agrees that SMB was the
lender on the obligation at issue here. It does not allege
that SMB's principal business is the collection of debts,
nor that it regularly collects or attempts to collect debts
owed to others. See 15 U.S.C. § 1692a(6)
(defining “debt collector”).
argues that SMB holds itself out as a debt collector, and if
permitted to amend could allege facts showing that. In
support of this, he cites an email dated March 8, 2018.
(See Decl. of Robert Waller, Ex. 3.) Even if a
lender could become a debt collector for FDCPA purposes by
holding itself out as one, this email does not do that.
Instead, it merely references the loan, which it says is
delinquent. A warning below the signature line says
“This is an attempt to collect a debt and information
obtained will be used for that purpose, ” but does not
mention the FDCPA. Bearing in mind that SMB might be treated
as a debt collector under some laws, a generic warning is
perhaps not surprising.
the FDCPA's definition of “debt collector”
does not include a “holding out” theory under
which an entity that is not otherwise a debt collector could
become one merely by holding itself out as one. See
O'Connor v. Wells Fargo, N.A., 2014 WL 4802994, at
*3 (N.D. Cal., Sept. 26, 2014) (holding that even if
defendant had held itself out as a debt collector, it was not
a debt collector within the definition of the FDCPA);
Hernandez v. Green Tree Servicing LLC, 2014 WL
2586932 at *3 (C.D. Cal., June 9, 2014) (“[W]hether
Green Tree is a debt collector under the FDCPA does not turn
on whether Green Tree holds itself out as a debt
collector.”) Even where FDCPA-specific warnings or
disclaimers have been given, courts have not treated them as
giving rise to an inference that the sender is a debt
collector for FDCPA purposes. See Amelina v. Mfrs. &
Traders Trust Co., 2016 WL 3982483, at *11 (S.D. Cal.,
July 21, 2016) (surveying cases). In other words, even if SMB
had held itself out as a debt collector, that alone would not
mean it was one for purposes of the FDCPA.
even more so, generic warnings about debt collection that are
identical or similar to the one Gonzalez points to have been
held insufficient to give rise to an inference that the
sender was a debt collector under the FDCPA. See
O'Connor v. Wells Fargo, N.A., 2014 WL 4802994, at
*4 (N.D. Cal., Sept. 26, 2014); Aki ...