Cupp v. First National Collection Bureau, Inc.

• Court: District Court, N.D. California
• Decided: February 28, 2023
• Docket: 3:22-cv-08112
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8

10 RONALD CUPP, 11 Plaintiff, No. C 22-08112 WHA

12 v.

13 FIRST NATIONAL COLLECTION ORDER RE MOTION FOR BUREAU, INC., JUDGMENT ON THE 14 PLEADINGS AND Defendant. VACATING HEARING 15

16 INTRODUCTION 17 In this pro se action regarding debt-collection text messages, defendant collection agency 18 moves for judgment on the pleadings to dismiss all claims with prejudice. To the extent below 19 stated, defendant’s motion is GRANTED IN PART AND DENIED IN PART. 20 STATEMENT 21 The facts seem simple. Plaintiff Ronald Cupp filed this damages action against 22 defendant First National Collection Bureau regarding fifteen debt-collection text messages that 23 he received from defendant. Our complaint alleges that plaintiff was not the debtor at whom 24 those messages were directed. Plaintiff thus brings suit, asserting violations of the Telephone 25 Consumer Protection Act (TCPA), Fair Debt Collection Practices Act (FDCPA), and the 26 California Rosenthal Fair Debt Collection Practices Act (RFDCPA) (Compl. ¶¶ 3–12). 27 This order follows full briefing and finds the motion suitable for disposition on the papers 1 ANALYSIS 2 Under FRCP 12(c), “[a]fter the pleadings are closed — but early enough not to delay trial 3 — a party may move for judgment on the pleadings.” Our analysis under Rule 12(c) “is 4 ‘substantially identical’ to analysis under Rule 12(b)(6).” Chavez v. United States, 683 F.3d 5 1102, 1108 (9th Cir. 2012) (citation omitted). This means that all factual allegations in the 6 complaint must be accepted as true and construed in the light most favorable to the non- 7 moving party. Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir. 2004). Nevertheless, “[m]ere 8 conclusory statements in a complaint and ‘formulaic recitation[s] of the elements of a cause of 9 action’ are not sufficient.” Chavez, 683 F.3d at 1108 (quoting Bell Atl. Corp. v. Twombly, 550 10 U.S. 544, 555 (2007)). “Judgment on the pleadings is properly granted when there is no issue 11 of material fact in dispute, and the moving party is entitled to judgment as a matter of law.” 12 Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009) (citation omitted). Relevant here, “[t]he 13 Supreme Court has directed federal trial courts to read pro se papers liberally.” Christensen v. 14 Comm’r, 786 F.2d 1382, 1384 (9th Cir. 1986) (citation omitted). 15 1. TCPA CLAIM. 16 The crux of plaintiff’s TCPA claim is whether or not an “automatic telephone dialing 17 system,” as proscribed by 47 U.S.C. §227(b)(l)(A), was used to send him the text messages. 18 Our complaint asserts that such a system was used to text plaintiff. While our complaint does 19 not allege facts detailing exactly how defendant’s text messaging system functions, it does 20 allege that plaintiff received fifteen such messages in the rough span of one month. It is thus 21 plausible that such messages were sent using an automatic system. See Ashcroft v. Iqbal, 556 22 U.S. 662, 678 (2009). Plaintiff “was not required to allege in its complaint the evidentiary 23 facts in support of its theory of recovery,” inasmuch as plaintiffs are directed to provide “a 24 short and plain statement of the claim showing that the pleader is entitled to relief.” Enron Oil 25 Trading & Transp. Co. v. Walbrook Ins. Co., 132 F.3d 526, 529 (9th Cir. 1997) (quoting FRCP 26 8(a)). Defendant’s factual averments as part of its briefing are inapposite, because Rule 27 12(b)(6) and Rule 12(c) motions are generally confined to the complaint. See Lee v. City of 1 complaint have no bearing on the legal sufficiency of the allegations under Rule 12(b)(6). Yet, 2 in this case, defendants’ arguments in favor of affirming the dismissal of plaintiffs’ federal 3 claims rest almost entirely on factual challenges.”). Because there are material issues of fact 4 remaining — namely how defendant’s dialing system functions — judgment on the pleadings 5 is inappropriate. Defendant’s motion for judgment on the TCPA claim is DENIED. 6 2. FDCPA CLAIMS. 7 “In order to state a claim under the FDCPA, a plaintiff must show: 1) that he is a 8 consumer; 2) that the debt arises out of a transaction entered into for personal purposes; 3) that 9 the defendant is a debt collector; and 4) that the defendant violated one of the provisions of the 10 FDCPA.” Freeman v. ABC Legal Servs., Inc., 827 F. Supp. 2d 1065, 1071 (N.D. Cal. 2011) 11 (Judge Edward M. Chen); see Turner v. Cook, 362 F.3d 1219, 1227–28 (9th Cir. 2004). Our 12 complaint sufficiently alleges that plaintiff is a consumer, because the FDCPA’s definition of 13 consumer encompasses “any natural person obligated or allegedly obligated to pay any debt.” 14 15 U.S.C. § 1692a(3) (emphasis added). While our complaint does not specify the specific 15 transaction underlying the alleged debt, it sufficiently explains that the debt is owed by an 16 individual for personal purposes (Compl. ¶¶ 8, 24). See Turner, 362 F.3d at 1227 (quoting 15 17 U.S.C. § 1692a(5)); Bloom v. I.C. Sys. Inc., 972 F.2d 1067, 1068–69 (9th Cir. 1992) 18 (explaining that the FDCPA applies to debts incurred for personal rather than commercial 19 reasons). And our complaint alleges repeated attempts by defendant to notify plaintiff of owed 20 debt, plausibly indicating that defendant “regularly collects or attempts to collect, directly or 21 indirectly, debts,” meeting the FDCPA’s definition of debt collector. See Romine v. 22 Diversified Collection Servs., 155 F.3d 1142, 1145 (9th Cir. 1998) (quoting 15 U.S.C. § 23 1692a(6)). Defendant’s grievances with the complaint’s characterizations of the alleged debt 24 or defendant’s debt collection practices are material factual disputes inappropriate for 25 judgment on the pleadings. 26 Plaintiff alleges seven violations of the FDCPA that this order addresses in turn. 27 1 A. Harassment or Abuse Under 15 U.S.C. § 1692d(5). 2 FDCPA Section 1692d provides, in relevant part: 3 A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in 4 connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a 5 violation of this section:

6 * * * (5) Causing a telephone to ring or engaging any person in 7 telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number. 8 9 Defendants do not dispute that text messages can fall within Section 1692d(5)’s 10 proscription on “causing a telephone to ring.” Cf. Campbell-Ewald Co. v. Gomez, 577 U.S. 11 153, 156 (2016) (explaining that for TCPA purposes “[a] text message to a cellular telephone, 12 it is undisputed, qualifies as a ‘call’” (citation omitted)). Our complaint alleges that plaintiff 13 called and texted defendant to dispute the debt, and also mailed defendant a “notice of 14 intention to commence action,” all while plaintiff continued to receive messages over several 15 weeks. As such, defendant’s repeated messaging plausibly constitutes behavior whose natural 16 consequence was to harass, oppress, or abuse in violation of Section 1692d. 17 Plaintiff’s allegations of fifteen messages likewise raise a plausible inference of an intent 18 to harass in violation of Subsection 1692d(5). Our court of appeals has not addressed the 19 required proof of intent to annoy, abuse, or harass under Subsection 1692d(5). District courts 20 in this circuit generally agree that intent may be inferred from circumstantial evidence such as 21 the nature, pattern, and frequency of debt collection calls. See Jones v. Rash Curtis & Assocs., 22 No. C 10-00225, 2011 WL 2050195, at *2 (N.D. Cal. Jan. 3, 2011) (Judge Jeffrey White) 23 (collecting cases); see also Crockett v. Rash Curtis & Assocs., 929 F. Supp. 2d 1030, 1032 24 (N.D. Cal. 2013). No bright-line rule exists for the threshold of harassment, but courts have 25 found call volumes similar to the fifteen at issue here to state a claim for relief under this 26 section. E.g., Brown v. Hosto & Buchan, PLLC, 748 F. Supp. 2d 847, 852 (W.D. Tenn. 2010) 27 (Judge Samuel H. Mays, Jr.) (denying dismissal of FDCPA harassment claim based on 1 defendant calling “seventeen times in one month” and collecting cases). As such, defendant’s 2 motion for judgment on this FDCPA claim is DENIED. 3 B. False or Misleading Representations Under 15 U.S.C. § 1692e. 4 5 Plaintiff claims violations of three different subparts of Section 1692e, which targets 6 false or misleading representations. In short, plaintiff’s complaint contains no such allegations. 7 It does not even describe or explain the contents of the text messages received, so there is no 8 factual basis to begin to evaluate whether any representations made were false or misleading. 9 Plaintiff appears to have understood that the text messages regarded collection of debt not 10 owed by him, and there is no basis in the complaint to infer that this was a pretext meant to 11 mislead. This order furthermore notes that any alleged false representations must also be 12 material to sustain a claim under Section 1692e. See Donohue v. Quick Collect, Inc., 592 F.3d 13 1027, 1033 (9th Cir. 2010) (“We now conclude that false but non-material representations are 14 not likely to mislead the least sophisticated consumer and therefore are not actionable under §§ 15 1692e or 1692f.”). A false statement that plaintiff owed a debt clearly irrelevant to him, for 16 example, is not necessarily misleading in violation of the FDCPA. Defendant’s motion for 17 judgment on the three FDCPA claims under 15 U.S.C. § 1692e is GRANTED. 18 C. Validation of Debts Under 15 U.S.C. § 1692g. 19 Plaintiff alleges violation of Section 1692g for “failing to cease collection until the debt 20 was validated or verified” (Compl. ¶ 25). Section 1692g contains notice requirements, where a 21 debt collector must provide written notice of the debt, and the debtor must provide written 22 notice of disputing the debt or requesting further information related to the original creditor. 23 Subpart (b) explains that upon a debtor’s written notification of a dispute, the debt collector 24 “shall cease collection of the debt, or any disputed portion thereof, until the debt collector 25 obtains verification of the debt.” 15 U.S.C. § 1692g(b). 26 Plaintiff’s complaint does not detail facts regarding the contents of either party’s written 27 notifications. As far as facts suggesting that plaintiff disputed the debt, our complaint alleges 1 commence action” on November 6, 2022, after which he texted defendant regarding that 2 mailed notice (Compl. ¶¶ 9, 10). Based on the complaint, it appears that the letter mailed on 3 November 6 constitutes the earliest possible written notice from plaintiff to defendant that he 4 could be disputing the debt. Likewise, based on the date range provided in the complaint, it 5 appears the latest date defendant could have texted plaintiff for debt collection was November 6 9, 2022 (Compl. ¶ 8). Plaintiff provided the tracking number of his letter in the complaint, and 7 the USPS website indicates the letter was delivered on November 9, 2022. Therefore, even 8 assuming that the letter of an “intention to commence action” constitutes plaintiff’s written 9 notice to defendant disputing the debt, there are no facts in the complaint indicating that 10 defendant texted plaintiff after such notification was received, which is what Section 1692g 11 prohibits. Absent facts indicating conduct proscribed by Section 1692g, defendant’s motion 12 for judgment on this FDCPA claim is GRANTED. 13 D. Furnishing Certain Deceptive Forms Under 15 U.S.C. § 1692j. 14 15 Section 1692j prohibits a practice known as “flat-rating,” where a third-party not 16 involved in the debt-collection process sells form letters for a creditor to use to create “the false 17 impression that someone (usually a collection agency) besides the actual creditor is 18 ‘participating’ in collecting the debt.” Echlin v. PeaceHealth, 887 F.3d 967, 972 (9th Cir. 19 2018) (citations omitted). This third-party “in effect, simply allows the creditor to use its name 20 ‘for its intimidation value.’” Ibid. 21 Similar to the false or misleading representations claims, our complaint is devoid of facts 22 to support this flat-rating claim. Furthermore, this claim against defendant would mean that 23 First National is not actually the creditor or involved in debt collection here, but merely 24 allowing the actual creditor to use its name. To facilitate evaluation of such a claim, the 25 complaint should describe the contents of the text messages received as well as the nature of 26 the underlying alleged debt. For want of these basic details underlying a Section 1692j claim, 27 defendant’s motion for judgment on this claim is GRANTED. 1 E. Unfair Practices Under 15 U.S.C. § 1692f. 2 “Section 1692f is a catchall provision that forbids a debt collector from using ‘unfair or 3 unconscionable means to collect or attempt to collect any debt.’” Reenders v. Premier 4 Recovery Grp., No. 18-cv-07761, 2019 WL 2583595, at *3 (N.D. Cal. May 7, 2019) (Judge 5 Jacqueline Scott Corley), report and recommendation adopted, 2019 WL 2579340 (N.D. Cal. 6 June 24, 2019) (quoting Clark v. Lender Processing Servs., 562 F. App’x 460, 467 (6th Cir. 7 2014)). It is evaluated under the same standard as Section 1692e, which is “an objective 8 analysis that considers whether ‘the least sophisticated debtor would likely be misled by a 9 communication.’” Donohue, 592 F.3d at 1033 (quoting Guerrero v. RJM Acquisitions LLC, 10 499 F.3d 926, 934 (9th Cir. 2007)). 11 Plaintiff does not specify a violation of any specific subclause of Section 1692f, and our 12 complaint does not specify any separate basis for Section 1692f liability. Therefore, just like 13 his Section 1692e claims, plaintiff has not sufficiently articulated any facts in the complaint to 14 support a FDCPA violation for unfair debt collection practices. Defendant’s motion for 15 judgment on this claim is GRANTED. 16 3. RFDCPA CLAIM. 17 The Rosenthal Act “mimics or incorporates by reference the FDCPA’s requirements . . . 18 and makes available the FDCPA’s remedies for violations.” Riggs v. Prober & Raphael, 681 19 F.3d 1097, 1100 (9th Cir. 2012) (citing Cal. Civ. Code § 1788.17). While plaintiff’s complaint 20 specifically cites a non-operative section of the Rosenthal Act, the Rosenthal Act nevertheless 21 contains provisions analogous to the FDCPA, such as Section 1788.11(d) which prohibits 22 “[c]ausing a telephone to ring repeatedly or continuously to annoy the person called.” Cal. 23 Civ. Code § 1788.11(d). Because plaintiff asserts no independent basis for his RFDCPA 24 claim, whether there is a RFDCPA violation turns on whether there is a FDCPA violation. See 25 Riggs, 681 F.3d at 1100; see also Crockett, 929 F. Supp. 2d at 1033 (“Claims under Section 26 1788.11(d) of the Rosenthal Act require the same proof of intent and are evaluated for 27 specificity in the same way as claims under Subsection 1692d(5) of the FDCPA.”). Seeing as 1 plaintiff's FDCPA Section 1692d(5) claim survives, defendant’s motion for judgment on the 2 RFDCPA claim is likewise DENIED. 3 CONCLUSION 4 For the foregoing reasons, defendant’s motion for judgment on the pleadings as to the 5 TCPA claim, the FDCPA Section 1692d(5) claim, and the RFDCPA claim is DENIED. 6 Defendant’s motion as to the remaining claims is GRANTED. The hearing for this motion is 7 VACATED. 8 Plaintiff may seek leave to amend his complaint and shall have TWENTY-ONE 9 CALENDAR Days from the date of this order to file a motion, noticed on the normal 35-day 10 track, for leave to file an amended complaint. Plaintiff must plead his best case in the 11 proposed pleading. Relevant facts such as plaintiff's additional research on the system First 12 National uses to send text messages that he discusses in briefing should be incorporated into 5 13 any amended complaint. Because an amended complaint would completely replace the 14 original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. 3 15 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the 16 original complaint by reference. The proposed amended complaint must be appended to the 3 17 motion. The motion should explain how the amendments to the complaint cure the 18 deficiencies identified herein, as well as any others raised in defendant’s briefs. The proposed 19 complaint will be allowed, if at all, only after a ruling on the motion for leave to file it. 20 21 IT IS SO ORDERED. 22 23 Dated: February 28, 2023. 24

26 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 27 28