Arnold v. Aqua Finance, Inc.

• Court: District Court, E.D. California
• Decided: February 17, 2023
• Docket: 1:21-cv-01182
• Status: Unknown

Opinion

1 2 3

6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 BYRON ARNOLD and KIMBLY ARNOLD, ) Case No.: 1:21-cv-1182 JLT SKO ) 12 Plaintiffs, ) ORDER GRANTING DEFENDANTS’ MOTION ) TO DISMISS 13 v. ) (Doc. 18) ) 14 BAY FINANCE COMPANY LLC, aka AQUA ) ORDER DIRECTING THE CLERK OF COURT FIN., and QUANTUM 3 GROUP LLC, ) TO CLOSE THIS CASE 15 ) Defendants. ) 16 )

17 Byron Arnold and Kimbly Arnold signed a purchase agreement for a water filter, for which 18 they would make monthly payments. Plaintiffs assert the defendants acted unlawfully seeking to 19 collect a debt related to the water filter and violated the Fair Credit Reporting Act. (See Doc. 15.) 20 Defendants1 seek dismissal of the First Amended Complaint pursuant to Rule 12(b)(6) of the 21 Federal Rules of Civil Procedure, asserting the facts alleged do not support the claims under the Fair 22 Credit Reporting Act and an applicable statute of limitations bars the first claim for relief. (Doc. 18.) 23 Plaintiffs oppose the motion, asserting the facts alleged are sufficient to give Defendants fair notice of 24 their claims. (Doc. 20.) The Court finds the matter suitable for decision without oral arguments, and 25 no hearing date will be set pursuant to Local Rule 230(g). For the reasons set forth below, the motion 26 to dismiss is GRANTED, and the First Amended Complaint is dismissed without leave to amend. 27

28 1 Defendants assert Aqua Finance, Inc. and the Bay Finance Group, Inc. are separate entities, which were erroneously 1 I. Background and Procedural History 2 Plaintiffs purchased a water filtration system from AquaPro Elite Systems for $5990.00 on 3 February 12, 2016.2 (See Doc. 1 at 14.) In exhibits attached to the initial complaint, which include a 4 sales contract, it appears Plaintiffs were informed AquaPro Elite Systems may assign the contract to 5 Aqua Finance, Inc. (Id.) Plaintiffs assert Bay Finance informed Bryon Arnold that the loan was 6 transferred to Aqua Finance on March 1, 2016. (Doc. 14 at 5, ¶ 14.) 7 On May 10, 2016, Plaintiffs filed for Chapter 13 bankruptcy. (Doc. 15 at 5, ¶ 15.) Plaintiffs 8 allege they were informed the acting agent for Quantum 3 Group LLC “filed proof of claim for the 9 secure amount of $5,926.66 and unsecured amount $5,917.00.” (Id.) Plaintiffs allege in the FAC that 10 they “paid $47,803.25 on all debt secured and unsecured under the Chapter 13 earned payment plan” 11 from July 1, 2016 to January 3, 2018.3 (Id., ¶ 16.) However, court records from Plaintiffs’ bankruptcy 12 action, Case No. 16-90571, indicate their payments were “delinquent in the amount of $6,750.00” as 13 of September 5, 2017. (See Doc. 18 at 39.) The Court dismissed the bankruptcy action after Plaintiffs 14 failed “to cure the default by payment” on October 30, 2017. (Id. at 43.) The final report of the 15 Chapter 13 Trustee indicated no amount was paid on the claims of Quantum 3 prior to the dismissal. 16 (Doc. 18 at 46.) 17 On January 11, 2018, Kimbly Arnold’s application for a loan for a purchase of an automobile 18 was denied. (Doc. 14 at 8, ¶ 35.) Plaintiffs contend the “negative marks on the Plaintiff (sic) credit … 19 was the proximate cause for the Plaintiff being unable to purchase the automobile due to ‘collection 20 action.’” (Id.) Plaintiffs allege Ms. Arnold wrote to Equifax on August 2, 2018 to request an 21 investigation within 45 days, but did not receive a reply. (Id. at 8-9, ¶ 35.) Thus, Plaintiffs assert 22 “incorrect information remained unverified.” (Id. at 9, ¶ 35.) 23 On April 25, 2019, Plaintiffs applied for a home loan. (Doc. 14 at 5, ¶ 19.) Plaintiffs assert the 24 loan “was denied due to ‘serious lates’ (sic).” (Id.) Plaintiffs believe a consumer report from Experian 25 reflected an unidentified “Defendant reporting collection.” (Id.) Plaintiffs contend the report 26 27 2 In the FAC, Plaintiffs allege the water filtration system cost $59990.00. (Doc. 14 at 4, ¶ 12.) This appears to be a 28 typographical error because the sales agreement indicates the price was $5990.00. (Doc. 1 at 14.) 1 “contained derogatory and inaccurate” information, including that “Plaintiffs had an unpaid debt that 2 did not belong to the Plaintiff by Connex Credit located at the Defendants Bay Finance.” (Id., ¶ 20.) 3 According to Plaintiffs, “this incorrect reporting was caused by Defendant’s failure to follow 4 reasonable procedures to assure maximum possible accuracy in the preparation of the consumer reports 5 and consumer files it publishes and maintains….” (Id. at 5-6, ¶ 21.) Further, Plaintiffs allege 6 “Defendant Bay Finance and Aqua Finance collectively furnishing inaccurate information to the Credit 7 Reporting Agencies which contained incorrect information would most likely have an adverse effect 8 upon Plaintiff’s loan approval.” (Id. at 6, ¶ 25.) 9 Plaintiffs allege that in December 2019, “Defendant Bay Finance took the position [that the 10 company was] not willing to resolve the matter.” (Doc. 14 at 9, ¶ 38.) Plaintiffs contend Bay Finance 11 declined to resolve “ownership of the account” the collection account, or past due status. (Id.) Instead, 12 Bay Finance indicated it “sold the account to Aqua Finance and was no-longer in possession of the 13 account….” (Id.) 14 Plaintiffs assert that on March 12, 2020, “Defendant Quantum 3 Bankruptcy Service … placed a 15 UCC-1 lien” on their property located at 1611 Carlton Ave, Modesto, Ca. (Doc. 14 at 9, 12, ¶¶ 37, 47.) 16 Plaintiffs contend that by placing the lien, “Quantum 3 Bankruptcy Servicer violated the automatic stay 17 with an order from the U.S.C of the Eastern District.” (Id. at 9, ¶ 37.) In addition, Plaintiffs allege this 18 caused Atlas Capital Group “to terminate their decision to issue the funds which… caused irreparable 19 financial hardship” to Plaintiffs. (Id. at 12, ¶ 47.) 20 On May 12, 2021, Plaintiffs filed a complaint in Stanislaus County Superior Court, Case No. 21 SC21000387, seeking to hold the defendant liable for defamation, violations of the Fair Debt 22 Collection Practices Act, and unlawful “attempts to collect a debt.” (Doc. 1 at 6.) Defendants filed a 23 notice of removal on August 5, 2021, thereby initiating the matter before this Court. (Doc. 1.) The 24 Court granted Defendants’ motion to dismiss the complaint, and granted Plaintiffs leave to amend. 25 (Doc. 13.) 26 In the First Amended Complaint, Plaintiffs seek to hold the defendants liable for violations of 27 the Fair Credit Reporting Act and a violation of the bankruptcy stay pursuant to 11 U.S.C. § 362(a). 28 (Doc. 14.) In response to the FAC, Defendants filed the motion to dismiss now pending before the 1 Court on April 19, 2022. (Doc. 18.) Plaintiffs filed an opposition on May 17, 2022 (Doc. 20), to which 2 Defendants filed a reply on May 20, 2022 (Doc. 21). 3 II. Motion to Dismiss 4 A Rule 12(b)(6) motion “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 5 732 (9th Cir. 2001). In evaluating a motion to dismiss under Rule 12(b), “review is limited to the 6 complaint, materials incorporated into the complaint by reference, and matters of which the court may 7 take judicial notice.” Metzler Inv. GMBH v. Corinthian Coils, Inc., 540 F.3d 1049, 1061 (9th Cir. 8 2008) (citation, internal quotation marks omitted). 9 Dismissal of a claim under Rule 12(b)(6) is appropriate when “the complaint lacks a cognizable 10 legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. 11 Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). The Supreme Court explained: “To survive a motion 12 to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 13 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 14 Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court explained, 15 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 16 for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a 17 defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line 18 between possibility and plausibility of ‘entitlement to relief.’”

19 Iqbal, 556 U.S. at 678 (internal citations omitted). Allegations of a complaint must be accepted as true 20 when the Court considers a motion to dismiss. Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 21 738, 740. (1976). A court must construe the pleading in the light most favorable to the plaintiff and 22 resolve all doubts in favor of the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, 23 legal conclusions need not be taken as true when “cast in the form of factual allegations.” Ileto v. 24 Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). 25 “The issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled 26 to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a 27 recovery is very remote and unlikely but that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236 28 (1974). The Court “will dismiss any claim that, even when construed in the light most favorable to 1 plaintiff, fails to plead sufficiently all required elements of a cause of action.” Student Loan Marketing 2 Assoc. v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). To the extent pleading deficiencies can be 3 cured by the plaintiff alleging additional facts, leave to amend should be granted. Cook, Perkiss & 4 Liehe, Inc. v. Northern Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). 5 III. Request for Judicial Notice 6 Fed. R. Evid. 201 permits a court to take judicial notice of any facts (1) “generally known 7 within the trial court’s territorial jurisdiction” or (2) that “can be accurately and readily determined 8 from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). United States 9 v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The Court “must take judicial notice if a party 10 requests it and the court is supplied with the necessary information.” Fed. R. Evid. 201(c). 11 Defendants request the Court take judicial notice of the following: 12 A. Plaintiffs’ complaint filed in Stanislaus County Superior Court on May 12, 2021 in Case No. SC21000387. 13 B. The Notice of Default and Intent to Dismiss Case filed on September 14 6, 2017 by Chapter 13 Trustee Russell Greer in the case of In re Arnold, Eastern District of California Bankruptcy Court Case No. 16-90571; 15 C. The Chapter 13 order Dismissing Case Re: Notice of Default and 16 Intent to Dismiss Case entered on October 30, 2017 in the case of In re Arnold, Eastern District of California Bankruptcy Court Case No. 16- 17 90571;

18 D. The Chapter 13 Standing Trustee’s Final Report and Account filed on January 3, 2018 by Chapter 13 Trustee Russell Greer in the case of In re 19 Arnold, Case No. 16-90571; and

20 E. The UCC-1 financing statement filed on October 30, 2019 in the official records of Stanislaus County. 21

22 (Doc. 18 at 16.) Plaintiffs do not oppose the request for judicial notice and do not challenge the 23 accuracy of the identified documents. (See generally Doc. 20.) 24 The Court may take judicial notice of its own files and of documents filed in other courts. 25 Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). While a court may 26 take judicial notice of state proceedings, a court may only take judicial notice the “of representations 27 having been made therein.” United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 973-974 (E.D. 28 Cal. 2004). Thus, the Court GRANTS the request for judicial notice of the allegations made in the 1 complaint filed by Plaintiffs but limits the scope of its judicial notice to the allegations made and 2 declines to take judicial notice of the veracity of the allegations. 3 In addition, “the authenticity and existence of a particular order, motion, pleading or judicial 4 proceeding, which is a matter of public record, is judicially noticeable.” United States v. S. Cal. 5 Edison Co., 300 F. Supp. 2d 964, 974 (E.D. Cal. 2004); see also Reusser v. Wachovia Bank, N.A., 525 6 F.3d 855, 857 n.1 (9th Cir. 2008) (“We take judicial notice of the bankruptcy court order, because it is 7 a matter of public record”); Lane v. Vitek Real Estate Indus. Grp., 713 F. Supp. 2d 1092, 1097 (E.D. 8 Cal. 2010) (taking judicial notice of court documents relating to a plaintiff’s bankruptcy proceedings). 9 Accordingly, the Court GRANTS the request for judicial notice of the Notice and Order issued in 10 Case No. 16-90571. Similarly, the Court GRANTS the request for judicial notice of the “Trustee’s 11 Final Report and Account” filed in Case No. 16-90571. See, e.g., Schwarm v. Craighead, 2011 WL 12 1232837, at *1 n.2 (E.D. Cal. Mar. 31, 2011) (taking judicial notice of a trustee’s final report in a 13 bankruptcy action). 14 Finally, the Court GRANTS the request for judicial notice of documents in the official records 15 of the county, such as the UCC-1 statement filed on October 30, 2019. See, e.g., Christopherson v. All 16 Pure Pool Serv. of Cent. Cal., 2020 WL 3249323, at *5 n.7 (E.D. Cal. June 16, 2020) (taking judicial 17 notice of a recorded UCC financing statement); see also Qingdao Tang-Buy Int'l Imp. & Exp. Co. v. 18 Preferred Secured Agents, Inc., 2015 WL 7776331, at *2-3 (N.D. Cal. Dec. 3, 2015) (taking judicial 19 notice of UCC-1 financing statements, noting the plaintiff did not challenge the authenticity of the 20 documents, but declining to take notice of the facts contained in the statements). Accordingly, the 21 Court takes judicial notice of the UCC-1 filed on October 30, 2019 but limits its scope to the date of 22 the filing and not the veracity of the information contained in the statement. 23 IV. Discussion and Analysis 24 Defendants seek dismissal of all claims in the FAC, asserting the allegations are insufficient to 25 comply with the notice pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. 26 (Doc. 18 at 10.) Defendants argue Plaintiffs fail to allege facts sufficient to state plausible claims, and 27 the first cause of action also fails as barred by the applicable statute of limitations. (Id. at 11-15.) 28 /// 1 A. Rule 11 2 As an initial matter, Defendants contend the FAC should be stricken for failure to comply with 3 Rule 11 of the Federal Rules of Civil Procedure. (Doc. 18 at 2, n.1.) Pursuant to Rule 11(a), “Every 4 pleading, written motion, and other paper must be signed by at least one attorney of record in the 5 attorney’s name—or by a party personally if the party is unrepresented.” Fed. R. Civ. P. 11(a). “The 6 court must strike an unsigned paper unless the omission is promptly corrected after being called to the 7 attorney’s or party’s attention.” Id.; see also 5A Charles A. Wright & Arthur R. Miller, Federal 8 Practice and Procedure § 1333 (3d ed. 2004) (explaining the signature requirement of Rule 11 “is not 9 satisfied when a non-lawyer signs a paper on behalf of an unrepresented party”). 10 Defendants contend the FAC should be stricken because there are two named plaintiffs—Byron 11 Arnold and Kimbly Arnold—and only Ms. Arnold signed the pleading. (Doc. 18 at 2, n. 1.) 12 Defendants argue that Mr. Arnold’s failure to sign the FAC violates Rule 11 of the Federal Rules of 13 Civil Procedure. (Id.) Plaintiffs argue the motion should be denied on these grounds, because “Kimbly 14 Arnold[’s] signature is clearly sufficient for the Defendant to claim a defense.” (Doc. 20 at 5.) 15 Significantly, pro se litigants do not have authority to represent anyone other than themselves. 16 See C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (holding a pro se litigant 17 may not appear as attorney for others). As a result, a pro se plaintiff “lacks the representative capacity 18 to file motions and other documents on behalf of the other plaintiffs.” Trevizo v. Webster, 2018 WL 19 5917858, at *3 (C.D. Cal. Sept. 6, 2018) (citation omitted); see also Christian v. Pittsburg Police 20 Dep’t, 2009 WL 1631809 (N.D. Cal. June 9, 2009) (dismissing the claims of a pro se plaintiff who did 21 not sign a complaint). Thus, even the signature of a spouse does not satisfy Rule 11. See, e.g., Ko v. 22 Mut. Pharm. Co., Inc., 2013 WL 3338596, at *2 (N.D. Cal. July 1, 2013) (finding the signature of the 23 plaintiff’s husband “[did] not satisfy the signature requirement of Rule 11(a)”); see also Barker v. 24 Default Resolution Network, 2008 WL 4065879, n.2 (N.D. Cal. Aug. 27, 2008) (“a non-attorney is not 25 permitted to represent the interests of another person in federal courts, and Kenneth, who is not an 26 attorney, may not represent the interests of Lois pro se”). Consequently, Ms. Arnold is unable to sign 27 the FAC on behalf of her husband, and the signature of Ms. Arnold fails to satisfy the requirements of 28 Rule 11(a). Because Byron Arnold did not sign the FAC—and Plaintiffs did not promptly cure the 1 defect—the FAC must be stricken. See Fed. R. Civ. P. 11(a). Although leave to amend may be granted 2 to correct such an error, for the reasons set forth below, the Court finds dismissal without leave to 3 amend is appropriate. 4 B. Claims under the Fair Credit Reporting Act 5 The purpose of the Fair Credit Reporting Act is “to ensure fair and accurate credit reporting, 6 promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. 7 Burr, 551 U.S. 47, 52 (2007). The FCRA regulates credit reporting agencies to guarantee that 8 consumer information is assembled, evaluated, and disseminated with “fairness, impartiality, and a 9 respect for the consumer’s right to privacy.” Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 10 1153 (9th Cir. 2009) (quoting 15 U.S.C. § 1681(a)(4)). Accordingly, the FCRA imposes duties on the 11 credit furnishers, which are the sources that provide information to credit reporting agencies, to ensure 12 accurate credit reporting. See id. (citing 15 U.S.C. § 1681s-2). 13 Two categories of responsibilities are placed upon credit furnishers in the FCRA, as set forth in 14 15 U.S.C. §1681s-2. Subsection (a) addresses the “duty to provide accurate information” to credit 15 reporting agencies. 15 U.S.C. § 1681s-2(a); see also Gorman, 584 F.3d at 1154. Subsection (b) 16 outlines a furnisher's duty to investigate after receiving notice of a dispute regarding credit-related 17 information from a credit reporting agency. 15 U.S.C. § 1681s-2(b); see also Gorman, 584 F.3d at 18 1154 (citing 15 U.S.C. §§ 1681s-2(b), 1681i(a)(2)). 19 1. Claims under subsection (a) 20 With “Claim I,” Plaintiffs seek to hold Defendants liable for failure to provide accurate 21 information, noting that under the FCRA, a furnisher is prohibited “from furnishing any information 22 relating to a consumer to any consumer reporting agency if the furnisher knows or has reasonable cause 23 to believe that the information is inaccurate.” (Doc. 14 at 7, citing 15 U.S.C. § 1681s-2(a)(1)(A).) 24 With “Claim II,” Plaintiffs seek to hold Defendants liable under Section 1861 for failing to comply 25 with the “duty to correct and update information.” (Doc. 14 at 8, emphasis omitted.) 26 As Plaintiffs observe, the FCRA requires a furnisher to not provide information if it “knows or 27 has reasonable cause to believe that the information is inaccurate.” 15 U.S.C. § 1681s-2(a)(1)(A). 28 Subsection (a) also imposes the duty upon furnishers “to correct and update” information provided to a 1 credit reporting agency that was inaccurate or incomplete. Id., § 1681s-2(a)(2). Importantly, however, 2 the FCRA does not provide a private right of action under Section 1681s-2, subsection (a) for failure to 3 provide accurate information. Gorman, 584 F.3d at 1154. Rather, “[d]uties imposed on furnishers 4 under subsection (a) are enforceable only by federal or state agencies.” Id., citing 15 U.S.C. 1681s-2 5 (“[Section] 1681s-2 limits this private right of action to claims arising under subsection (b), the duties 6 triggered upon notice of a dispute from a CRA”); see also Nash v. Wachovia Bank, 2016 WL 4771027, 7 at *5 (E.D. Cal. Sept. 14, 2016) (observing “there is no private right of action against a furnisher under 8 subsection (a) of § 1681s-2” and recommending dismissal of the claim under the FCRA), adopted by 9 2016 WL 8731365 (E.D. Cal. Sept. 30, 2016); see also Heras v. Capital One Bank USA, N.A., 2017 10 WL 7806364, at * 2 (C.D. Cal. Aug. 7, 2017) (“It is well-settled … that there is no private right of 11 action for violations of § 1681s-2(a).”). 12 Because Plaintiffs are private parties, they are unable to bring claims for violations under 13 subsection (a) to enforce the duty to provide accurate information, including the obligation to correct 14 and update information to a credit reporting agency. See Gorman, 584 F.3d at 1154; Nash, 2016 WL 15 4771027, at *5. Accordingly, to the extent Claim I and Claim II are based upon duties identified in 16 subsection (a), the claims are DISMISSED. 17 2. Claims under subsection (b) 18 The FCRA provides a private right of action for claims arising under subsection (b). See 19 Gorman, 584 F.3d at 1154. To the extent Plaintiffs seek to state a claim under subsection (b), the 20 duties under this subsection are triggered upon notice from a CRA that the consumer disputes 21 information that the furnisher provided. 15 USCS § 1681s-2(b); see also Gorman, 584 F.3d at 1154. 22 In particular, after receiving such a notice, a furnisher must: 23 (A) conduct an investigation with respect to the disputed information;

24 (B) review all relevant information provided by the consumer reporting agency pursuant to section 611(a)(2) [15 USCS § 1681i(a)(2)]; 25 (C) report the results of the investigation to the consumer reporting 26 agency;

27 (D) if the investigation finds that the information is incomplete or inaccurate, report those results to all other consumer reporting agencies to 28 which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and 1 (E) if an item of information disputed by a consumer is found to be inaccurate or incomplete or cannot be verified after any reinvestigation 2 under paragraph (1), for purposes of reporting to a consumer reporting agency only, as appropriate, based on the results of the reinvestigation 3 promptly—

4 (i) modify that item of information; (ii) delete that item of information; or 5 (iii) permanently block the reporting of that item of information.

6 15 USCS § 1681s-2(b)(1). The private cause of action can be alleged as either “willful or negligent 7 noncompliance” with these requirements. Rara v. Experian Info. Sols., Inc., 2017 WL 1047020, at *3 8 (N.D. Cal. Mar. 20, 2017). To state a cognizable claim under subsection (b), plaintiffs must allege 9 they: (1) found an inaccuracy in their credit report; (2) notified a credit reporting agency of the 10 inaccuracy; (3) the credit reporting agency in turn notified the furnisher of the dispute; and (4) “the 11 furnisher failed to investigate the inaccuracies or otherwise failed to comply with the requirements of 12 15 U.S.C. § 1681s-2(b)(1)(A)-(E).” Biggs v. Experian Info. Sols., Inc., 209 F. Supp. 3d 1142, 1144 13 (N.D. Cal. 2016). 14 Plaintiffs allege Ms. Arnold wrote to Equifax—a credit reporting agency—regarding the 15 information they believed to be inaccurate on August 20, 2018. (Doc. 14 at 8, ¶ 35.) In addition, 16 Plaintiffs assert they requested an investigation within 45 days of the receipt by Equifax, but she “did 17 not receive a reply.” (Id. at 8-9, ¶ 35.) As Defendants observe, in the letter to Equifax, Plaintiffs did 18 not identify any inaccuracies related to the water filter purchase or dispute information reported by 19 defendants Bay Finance, Aqua Finance, or Quantum 3. (Doc. 18 at 13, n. 5, citing Doc. 14 at 29-30.) 20 In the letter, which was attached as an exhibit to the FAC, Ms. Arnold indicated there were errors 21 related to “Loan Care” and student loan accounts with Navient. (Doc. 14 at 29-30.) Thus, it is unclear 22 that Plaintiffs notified a credit reporting agency of the inaccuracies now alleged. Moreover, there are 23 no allegations supporting a conclusion that a credit reporting agency notified Defendants of the alleged 24 inaccuracies. Without such notice from a credit reporting agency, no duty to investigate was triggered 25 under the FRCA. See 15 U.S.C. § 1681s-2(b); see also Mehl v. Green, 2022 WL 4056269, at*4 (E.D. 26 Cal. Sept. 1, 2022) (finding the allegations insufficient where the plaintiffs failed to “allege that a CRA 27 provided defendants with a notice of a dispute, which is required to trigger the statutory duties under § 28 1681s-2(b)”); Ewing v. Wells Fargo Bank, 2012 WL 4514055 at *4 (D. Ariz. Oct. 2, 2012) (dismissing 1 a FCRA claim for failure to allege that the reporting agency sent notice of the plaintiff’s consumer 2 dispute to the defendant). Given the pleading insufficiency, to the extent Claim I and Claim II are 3 based upon duties identified in subsection (b), the claims are DISMISSED. 4 3. Timeliness of the claims 5 Under the FCRA, a plaintiff must file a lawsuit “not later than the earlier of— (1) 2 years after 6 the date of discovery by the plaintiff of the violation that is the basis for such liability; or (2) 5 years 7 after the date on which the violation that is the basis for such liability occurs.” 15 U.S.C. § 1681p. 8 Defendants argue a claim under the FCRA is time-barred due to the applicable statute of limitations. 9 (Doc. 18 at 11.) 10 Defendants contend that based upon the allegations in the FAC, “Plaintiffs had discovered the 11 allegedly inaccurate credit reporting by January 11, 2018 or, at the latest April 25, 2019.” (Doc. 18 at 12 11.) Specifically, Defendants observe: “The FAC states that Plaintiffs discovered the allegedly 13 inaccurate reporting for the first time on January 11, 2018 when Plaintiffs’ application for an 14 automobile loan was denied as the result of the allegedly negative credit reporting subject of this 15 action.” (Id, citing FAC ¶ 35 [Doc. 14 at 8].) Defendants note Plaintiffs also allege they “applied for 16 and were denied a home loan, again as the result of the credit reporting subject of this action” on April 17 25, 2019. (Id., citing FAC ¶ 19 [Doc. 14 at 5].) Plaintiffs do not address the timeliness of the claim 18 following their discovery of the alleged violations. (See generally Doc. 20 at 1-6.) 19 Plaintiffs’ allegations support a conclusion that they were aware of the negative credit reporting 20 as of 2018. Indeed, Plaintiffs allege Ms. Arnold wrote to Equifax concerning the alleged inaccuracies 21 on August 20, 2018. (Doc. 14 at 8-9, ¶ 35.) Moreover, Plaintiffs do not dispute their knowledge of the 22 violations at that time the letter was written. Accordingly, any civil action under the FCRA must have 23 been filed within two years of the date of letter, or no later than August 20, 2020. See 15 U.S.C. § 24 1681p. Because Plaintiffs initiated this action by filing a complaint on May 12, 2021, their claims 25 under the FCRA are untimely and fail as a matter of law. 26 B. Violation of Bankruptcy Stay 27 With “Claim III,” Plaintiffs seek to hold Defendant Quantum 3 liable for violating the automatic 28 stay provision of bankruptcy proceedings as provided in 11 U.S.C. § 362(a). (Doc. 14 at 10.) When a 1 debtor files a petition for bankruptcy, an automatic stay comes into effect, preventing “the 2 commencement or continuation … of a judicial, administrative, or other action or proceeding against 3 the debtor … to recover a claim against the debtor that arose before the commencement of” the 4 bankruptcy case. 11 U.S.C. § 362(a)(1). In addition, the automatic stay prohibits “any act to create, 5 perfect, or enforce any lien against property of the estate” and “any act to create, perfect, or enforce 6 against property of the debtor any lien to the extent that such lien secures a claim that arose before the 7 commencement of the case under this title.” 11 U.S.C. § 362(a)(4)-(5). This automatic stay continues 8 until the bankruptcy case is either closed or dismissed, or until a discharge is granted or denied, 9 whichever comes first. 11 U.S.C. § 362(c). 10 Plaintiffs contend that on March 12, 2020, Quantum 3 “placed a UCC-1 lien” on their property, 11 and by doing so, Quantum 3 “violated the automatic stay.” (Doc. 14 at 9, 12 ¶¶ 37, 47.) Importantly, 12 however, it is undisputed that Plaintiff’s bankruptcy action was dismissed on October 30, 2017. (Doc. 13 18 at 43.) The dismissal of the bankruptcy proceedings immediately terminated the stay on October 30, 14 2017. See 11 U.S.C. § 362(c)(2); In re Weston, 101 B.R. 202, 204-05 (Bankr. E.D. Cal. 1989) (holding 15 the automatic stay ends “at the moment the order dismissing the case is entered on the docket”); 16 Pacifica Parks Apts. LLC v. U.S. Bank N.A., 2013 WL 5348072, at *3 (E.D. Cal. Sept. 20, 2013) (“[t]he 17 automatic stay in bankruptcy terminates at the time the case is dismissed”). Because the filing of the 18 lien occurred well after the bankruptcy proceedings were dismissed, Plaintiffs fail to show the action by 19 Quantum 3 violated the automatic stay provisions of Section 362(a). 20 Moreover, although 11 U.S.C. § 362 provides for a private right of action, courts have indicated 21 such claims must be brought before the bankruptcy court. See MSR Exploration, Ltd. v. Meridian Oil, 22 Inc. 74 F.3d 910, 916 (9th Cir. 1996); Eastern Equip. & Services Corp. v. Factory Point Nat. Bank, 236 23 F.3d 117, 121 (2d Cir. 2001) (noting 11 U.S.C. § 362(h) “allows for the recovery of compensatory and 24 punitive damages for willful violations of the automatic stay,” but finding “such a claim must be 25 brought in the bankruptcy court, rather than in the district court, which only has appellate jurisdiction 26 over bankruptcy case” [emphasis in original].) Accordingly, Plaintiffs are unable to seek relief from 27 this Court for any alleged violation under Section 362. For this reason, the claim is DISMISSED. 28 /// 1 || V. Dismissal Without Leave to Amend 2 Pursuant to Rule 15 of the Federal Rules of Civil Procedure, leave to amend “shall be freely 3 || given when justice so requires,” bearing in mind “the underlying purpose of Rule 15 to facilitate 4 || decisions on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 112: 5 1127 (9th Cir. 2000) (alterations, internal quotation marks omitted). When dismissing a complaint fo 6 || failure to state a claim, “a district court should grant leave to amend even if no request to amend the 7 || pleading was made, unless it determines that the pleading could not possibly be cured by the allegatic 8 || of other facts.” Jd. at 1130 (internal quotation marks omitted). Any amendment would be futile, as 9 || defects identified above may not be cured by the pleading of additional facts. Therefore, the Court 10 || finds dismissal without leave to amend is appropriate. 11 || VI.__ Conclusion and Order 12 For the reasons set forth above, the Court ORDERS: 13 1. Defendants’ motion to dismiss (Doc. 18) is GRANTED. 14 2. Plaintiffs’ First Amended Complaint is DISMISSED without leave to amend. 15 3. The Clerk of Court is directed to enter judgment in favor of Defendants and to close 16 this action. 17 18 || IT IS SO ORDERED. 19) Dated: __February 17, 2023 ( Lin fi L. wan 20 TED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28