Mapp v. Vinzant

• Court: District Court, S.D. California
• Decided: April 26, 2024
• Docket: 3:23-cv-02306
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Timothy Mapp, Case No.: 23-cv-2306-GPC-BLM

12 Plaintiff, ORDER DENYING MOTION TO 13 v. DISMISS

14 Dayle Allison Vinzant, dba Ted Smith [ECF No. 3] Law,1 15 Defendant. 16

17 Pending before the Court is Defendant’s Motion to Dismiss. For the reasons that 18 follow the motion is DENIED. The hearing set for May 3, 2024, is vacated. 19 Plaintiff claims that Defendant, a debt collector, violated the Federal Fair Debt 20 Collection Practices Act (“FDCPA”) when he brought an action seeking to evict Plaintiff 21 for the alleged non-payment of rent. Plaintiff alleges that rent had in fact “already been 22 paid” or its collection “was time-barred,” but that Defendant “continually harassed” him 23 24 25 1 Plaintiff admits that he inadvertently left a reference to “DOE” defendants in the caption 26 of the complaint and does not intend to pursue any “DOE” defendants. The Clerk is directed to correct the docket to reflect this admission. 27 1 about this “false rental debt that was not owed in the amount alleged or any amount and 2 which was not a valid basis to pursue an unlawful detainer action against Plaintiff.” ECF 3 No. 1 (“Complaint”) at ¶¶ 2, 17. Plaintiff further alleges that Defendant sought to seize 4 possession of his home on the basis of this false rental debt. Id. Accordingly, Plaintiff 5 alleges that Defendant violated six provisions of the FDCPA: 6 a. 15 U.S.C. §1692e(2)(A) by making a false representation of the character, amount, or legal status of the alleged debt; 7 b. 15 U.S.C. §1692e(4) by implying that nonpayment of a debt will result in 8 the seizure of property or garnishment of wages when such actions would not be lawful; 9 c. 15 U.S.C. §1692e(5) by threatening to take an action that cannot legally be 10 taken or that is not intended to be taken; d. 15 U.S.C. §1692e(10) by making use of a false representation or deceptive 11 means to collect or attempt to collect a debt; 12 e. 15 U.S.C. §1692(f) by using unfair or unconscionable means to collect or attempt to collect a debt; and 13 f. 15 U.S.C. §1692f(1) by attempting to collect an amount not permitted by 14 law. 15 Complaint at ¶ 19. 16 Defendant challenges the complaint on two grounds. First, Defendant argues that 17 the complaint must be dismissed because Plaintiff was in fact behind on his rent. 18 Defendant argues that because “Plaintiff resided at the Property for years without paying 19 the rent that he agreed to when he signed the lease,” Defendant’s legal action was proper. 20 ECF No. 3-1 at 2. But that is a factual dispute not properly raised in a motion to dismiss 21 where the Plaintiff’s allegations are assumed to be true. Defendant attaches several 22 documents, including a three-day notice to pay rent from 2023 that he alleges support his 23 claim, but those documents are not properly before the Court under Rule 12(b)(6).2 24 25 2 Defendant did not submit a request for judicial notice of the exhibits attached to his 26 motion, which include a letter sent in December of 2022, and a subsequent three-day 27 notice served in March of 2023. The Court declines to sua sponte judicially notice the 1 Accordingly, Defendant’s factual argument that Plaintiff was behind on his rent is not 2 persuasive at this time. 3 Defendant also argues that Plaintiff’s claim should be dismissed because the 4 complaint does not allege “anything other than a good faith effort to recover a legitimate 5 debt.” ECF No. 3-1 at 3. But the burden to plead a good faith defense rests with 6 Defendant, and its mere specter is not sufficient to defeat the complaint at the motion to 7 dismiss stage. See Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1177 8 (9th Cir. 2006); see also Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 9 2013) (holding that affirmative defense cannot serve as basis for dismissal unless obvious 10 on face of complaint); 15 U.S.C. § 1692k(c) (“A debt collector may not be held liable in 11 any action brought under this subchapter if the debt collector shows by a preponderance 12 of evidence that the violation was not intentional and resulted from a bona fide error 13 notwithstanding the maintenance of procedures reasonably adapted to avoid any such 14 error.”). Plaintiff alleges that Defendant falsely represented that a rental debt was owed 15 and falsely stated that the demand for the rent justified eviction and property seizure, 16 Complaint at ¶ 17. Plaintiff further alleges that “Defendant did not maintain procedures 17 reasonably adapted to avoid any such violation,” Complaint at ¶ 4. The Court finds that 18 these allegations plausibly state a claim for relief at the motion to dismiss stage and that 19 Defendant has not shown that a good faith defense is “obvious” on the face of the 20 complaint. 21 Finding neither of Defendant’s arguments persuasive, the Court DENIES the 22 Motion to Dismiss. 23 /// 24

25 26 extrinsic exhibits, and accordingly declines Plaintiff’s invitation to treat the motion as one for summary judgment. Cf. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). 27 1 IT IS SO ORDERED. 2 Dated: April 26, 2024 2 x 3 Hon. athe Coke A United States District Judge 5 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23-cv-2306-GPC-BLM