Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gonzalez v. Bank

United States District Court, S.D. California

September 12, 2019

JOSE ANTONIO GONZALEZ, Plaintiff,
v.
SALLIE MAE BANK, et al., Defendants.

          ORDER GRANTING IN PART MOTION TO DISMISS

          HON. LARRY ALAN BURNS CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff 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 dismiss.

         Legal Standards

         A Rule 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.

         When 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 omitted).

         Factual Background

         According 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 approved.

         The 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 appeared.

         Discussion

         FDCPA

         SMB 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”).

         Gonzalez 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.

         Because 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.

         And 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.