Martinez v. TD Bank USA, N.A.

225 F. Supp. 3d 261, 2016 WL 7391034, 2016 U.S. Dist. LEXIS 176299
CourtDistrict Court, D. New Jersey
DecidedDecember 21, 2016
DocketCivil Action No. 15-7712(JBS/AMD)
StatusPublished

This text of 225 F. Supp. 3d 261 (Martinez v. TD Bank USA, N.A.) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martinez v. TD Bank USA, N.A., 225 F. Supp. 3d 261, 2016 WL 7391034, 2016 U.S. Dist. LEXIS 176299 (D.N.J. 2016).

Opinion

OPINION

SIMANDLE, Chief Judge:

I. INTRODUCTION

Plaintiff Charlene Martinez brings this putative class action against Defendants TD Bank USA, N.A. (“TD Bank”) and Target Corporation (“Target”), alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227; the Rosenthal Fair Debt Collection Practices Act (“RFDCPA”), Cal. Civ. Code §§ 1788-1788.33; and California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq„ arising from telephone calls placed in connection with Defendants’ efforts to collect a consumer debt from Plaintiffs credit card. [First Amended Complaint (“FAC”), Docket Entry 25.] Before the Court is Defendants’ motion to dismiss the claims under the RFDCPA and the UCL, Counts II and III of the First Amended Complaint. [Docket Entry 39.] Plaintiff has filed a Response [Docket Entry 42] and Defendants have filed a Reply [Docket Entry 45].1

[265]*265Defendants argue that Plaintiffs claim under the RFDCPA cannot be sustained for two reasons. First, Defendants assert that Plaintiff has not alleged sufficient facts to properly plead that Defendants are “debt collectors” under the RFDCPA. Second, Defendants argue that the conduct Plaintiff describes in the FAC does not make out a claim for harassment under the RFDCPA as a matter of law. Defendants also argue that Plaintiffs UCL claims fail because Plaintiff lacks standing and cannot recover under the UCL, inasmuch as Plaintiff has not “lost money or property,” and does not have the right to equitable remedies (i.e., injunction and/or restitution). For the reasons that follow, the Court will deny Defendants’ motion in part and grant it in part because Plaintiff has adequately alleged grounds plausibly supporting her RFDCPA claim, but cannot recover under the UCL.

II. BACKGROUND2

TD Bank is a large national bank chain that, inter alia, “owns and underwrites a portfolio of credit card accounts.” [FAC ¶ 1.] Target is a corporation headquartered in Minnesota and doing business in New Jersey and nationwide. [Id. at ¶ 8.]

Plaintiff Charlene Martinez, a California resident, opened a Target credit card account in 2007. She obtained her current cellular telephone number in 2011. In 2012, when she moved to a new home, she went online to Target’s website in order to change the address associated with her Target credit card. The website required Plaintiff to input a telephone number in order to update her address information. The website claimed that when consumers put their phone number in the required field, they were consenting to receive au-todialed and prerecorded calls or text messages at that phone number. There was no opportunity or ability, however, to decline such consent and still update one’s address information as Plaintiff sought to do. Plaintiff allegedly entered her phone number in order to update her address, but only for that purpose. [Id. at ¶¶ 6; 25-30.]

TD Bank purchased the consumer credit card portfolio of Target in 2013 and assumed the assets and liabilities of those credit card accounts. Target remained responsible for servicing those accounts, subject to TD Bank’s monitoring and control. [Id. at ¶ 14.] To that effect, TD Bank provided a Collections Manager to assist Target with operational oversight of the eol-lections-related aspects of the program. [Id. at ¶ 16.] TD Bank caused collection calls to be placed for its credit card accounts, both on its own and through its agents. [Id. at ¶ 17.]

From late 2014 through April 2015, TD Bank and/or Target (acting as TD Bank’s servicing agent) called Plaintiffs cell phone over 100 times, and as often as three times per day. [Id. at ¶ 32.] On April 10, 2015, Plaintiff faxed cease-and-desist letters to “TD Bank USA/Target Credit” and ordered them to “cease and desist all communications.” [Id. at ¶ 33.] Despite this, Plaintiff received two phone calls from TD Bank and/or Target on April 14, 2015 “for purposes related to her outstanding debt.” [Id. at ¶ 34.] During the first call, Plaintiff answered the phone, but only [266]*266experienced a long delay before the call disconnected. During the second call, Plaintiff answered the phone and heard a “prerecorded or artificial” voice asking her to hold for a representative; once she was connected to a representative, she told him that he was calling her cell phone, that she did not consent to receive such' calls, and that he should stop calling. On April 15, 2015, TD Bank and/or Target called Plaintiffs cell phone again. [Id. at ¶¶ 34-36.] No further calls are alleged after April 15, 2015.

Plaintiff alleges that, “[a]s a result of Defendants’ conduct, [&he] lost money or property in the form of consumed battery life; increased electrical usage; and diminished use, enjoyment, and utility of her cellular telephone and cellular telephone plant,]” and that she and the California Subclass of potential plaintiffs suffered harms including “monies paid to receive the unsolicited telephone calls on their cellular phones” and “appropriati[on of their] cellular minutes” as well as the above [Id. at ¶¶ 38; 59; 65.] She also alleges that Defendants “not only invaded the personal privacy of Plaintiff and members of the putative Class and Subclass, but also intentionally and repeatedly violated the TCPA and the [RFDCPA].” [Id. at ¶ 24.]

Plaintiff alleges the following in her second cause of action: .

54. Plaintiff and the members of the California Subclass are natural persons obligated or allegedly obligated to pay debts incurred for personal, family, and/or household purposes, and as such are “persons” owing “consumer debts” within the meaning of Cal. Civ. Code §§ 1788.2(d)-(g),
55. Defendants, in the ordinary course of business, regularly engage in acts or practices in connection with the collection of consumer debts, and as such are “debt collectors” within the meaning of Cal.' Civ. Code § 1788.2(c).

[Id. at ¶¶ 54-55.]

III. STANDARD OF REVIEW

Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Specific facts are not required, and “the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations omitted). While a complaint is not required to contain detailed factual allegations, the plaintiff must provide the “grounds” of his “entitle[ment] to relief’, which requires more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes that the plaintiff failed to set forth fair notice of what the claim is and the grounds upon which it rests. Id.

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Bluebook (online)
225 F. Supp. 3d 261, 2016 WL 7391034, 2016 U.S. Dist. LEXIS 176299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-td-bank-usa-na-njd-2016.