1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Ezra Pelt, No. CV-24-00222-TUC-JGZ
10 Plaintiff, ORDER
11 v.
12 LVNV Funding LLC,
13 Defendant. 14 15 Pending before the Court is Defendant LVNV Funding LLC’s (LVNV) Motion to 16 Dismiss Plaintiff Pelt’s Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6). 17 (Doc. 7.) For the following reasons, the Court will grant Defendant’s Motion. 18 I. BACKGROUND 19 On March 13, 2024, Plaintiff filed a Complaint against Defendant in Pima County 20 Consolidated Justice Court alleging that Defendant violated the Fair Debt Collection 21 Practice Act (FDCPA), 15 U.S.C. § 1692(e), and Section 44-1697, Fair Credit Reporting 22 of the Arizona Revised Statutes. (Doc. 1-2 at 3.) Defendant removed the case to federal 23 court pursuant to 28 U.S.C. § 1441. (Doc. 1 at 1.) On May 6, 2024, Defendant filed a 24 Motion to Dismiss for Failure to State a Claim under Federal Rule of Civil Procedure Rule 25 12(b)(6). (Doc. 7 at 1.) Although the Court ordered Plaintiff to file a response by June 14, 26 2024, Plaintiff failed to do so. (Doc. 8.) 27 II. LEGAL STANDARD 28 To survive a motion to dismiss for failure to state a claim, a plaintiff must allege 1 enough facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. 2 Twombly, 550 U.S. 544, 547 (2007). A claim is plausible “when the plaintiff pleads factual 3 content that allows the court to draw the reasonable inference that the defendant is liable 4 for the misconduct alleged.” Id. While a complaint need not plead “detailed factual 5 allegations,” the factual allegations it does include “must be enough to raise a right to relief 6 above the speculative level.” Id. at 555. “Threadbare recitals of the elements of a cause of 7 action, supported by mere conclusory statements, do not suffice.” Id. 8 In general, a complaint is construed favorably to the pleader. See Scheuer v. Rhodes, 9 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 10 800 (1982). This Court must take as true all allegations of material fact and construe them 11 in the light most favorable to Plaintiff. See Cervantes v. United States, 330 F.3d 1186, 1187 12 (9th Cir. 2003). Nonetheless, the Court does not accept as true unreasonable inferences or 13 conclusory legal allegations cast in the form of factual allegations. Western Mining Council 14 v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Nor does the Court serve as an advocate for a pro se litigant in attempting to decipher a complaint. Blaylock v. United States, 2017 WL 15 2196765, at *1 (D. Ariz. Apr. 12, 2017), report and recommendation adopted, 2017 WL 16 2172002 (D. Ariz. May 17, 2017). If the Court determines that a pleading could be cured 17 by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a 18 complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127–29 (9th 19 Cir. 2000) (en banc). 20 III. COMPLAINT 21 Plaintiff claims that “LVNV violated FDCPA § 1692e as well as Title 44 – Trade 22 and Commerce 44-1697 – Fair credit Reporting of the 2022 Arizona Revised Statutes.” 23 (Doc. 1-3 at 3.) In support of his claim, Plaintiff alleges: 24 I spoke to one of the LVNV’s agent names Maria on the 4th of January, 2024 25 via recorded phone call and I informed them that its not a good time to pay 26 the debt. Maria(agent) was aware that the call was not a dispute, but LVNV still marked the account 444796XXXXX as disputed on my credit report. 27 (Doc. 1-3 at 3.) Plaintiff states that because of Defendant’s actions, he is “stressed 28 emotionally and mentally,” he has “lost his appetite” and “focus at work,” and that “he has 1 already spent over $2082 on credit repair.” (Id.) 2 IV. ANALYSIS 3 A. Plaintiff fails to state a claim under the Fair Debt Collection Practice Act. 4 5 To state a claim under the FDCPA, a plaintiff must allege: “(1) the defendant was 6 attempting to collect a ‘debt,’ (2) the defendant is a ‘debt collector,’ (3) the plaintiff is a 7 ‘consumer,’ and (4) the defendant violated at least one subsection of the FDCPA.” 8 Hedayati v. Judge L. Firm, APC, 2018 WL 6307872, at *2 (C.D. Cal. Jan. 16, 2018) (citing 9 Gutierrez v. Wells Fargo Bank, 2009 WL 322915, at *2 (N.D. Cal. Feb. 9, 2009)). The factual allegations contained in Plaintiff’s Complaint are sparse. Plaintiff 10 alleges that Defendant, through its agent, violated the FDCPA § 1691e by marking the debt 11 as “disputed” on his credit report after he expressed that “[it’s] not a good time to pay the 12 debt.” (Doc. 1-2 at 3.) Plaintiff’s claim fails because he does not plausibly allege that the 13 Defendant was attempting to collect a debt. Reporting a debt as “disputed” to Credit 14 Reporting Agencies (CRAs) under §1692e(8) is not conduct made “in connection with 15 collection” of the debt. Drake v. Enhanced Recovery Co., LLC, 2018 WL 1402586, at *3 16 (D. Or. Mar. 19, 2018); see also Narog v. Certegy Check Servs., Inc., 759 F. Supp. 2d 1189, 17 1193 (N.D. Cal. 2011) (holding that conduct that is not taken in connection with the 18 collection of a debt is not covered by the FDCPA). Because marking an account as disputed 19 is not conduct made in connection with the collection of the debt, Plaintiff fails to 20 sufficiently allege the first element required to state a claim under the FDCPA. Therefore, 21 Plaintiff fails to state a claim upon which relief can be granted. 22 B. Plaintiff fails to state a claim under § 44-1697 of the Arizona Revised 23 Statutes. 24 Section 44-1697, Fair Credit Reporting of the 2023 Arizona Revised Statutes, states: 25 A. If a consumer makes a payment on a credit or loan account to the proper 26 address to which the payment should be directed, a person shall calculate the number of days by which an account is delinquent by determining the 27 number of days between the scheduled due date of the payment and the date 28 the payment was received by that person. 1 B. If a person uses a reporting standard that requires a calculation of the number of days an account is delinquent, the person may report the 2 delinquency based only on the number of days of the delinquency plus not 3 more than four days. 4 Plaintiff fails to plausibly allege that Defendant violated § 44-1697 of the Arizona 5 Revised Statutes. In his Complaint, Plaintiff alleges that Defendant violated § 44-1697 by 6 marking Plaintiff’s account on his credit report as “disputed.” (Doc. 1-2 at 3.) However, § 7 44-1697 concerns only the calculation of days from which a credit or loan account is 8 considered delinquent. See Ariz. Rev. Stat. § 44-1697. It does not mention or involve 9 actions against debt collectors for misrepresenting consumers’ accounts on their credit 10 reports. It is not clear from Plaintiff’s Complaint how Defendant violated § 44-1697.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Ezra Pelt, No. CV-24-00222-TUC-JGZ
10 Plaintiff, ORDER
11 v.
12 LVNV Funding LLC,
13 Defendant. 14 15 Pending before the Court is Defendant LVNV Funding LLC’s (LVNV) Motion to 16 Dismiss Plaintiff Pelt’s Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6). 17 (Doc. 7.) For the following reasons, the Court will grant Defendant’s Motion. 18 I. BACKGROUND 19 On March 13, 2024, Plaintiff filed a Complaint against Defendant in Pima County 20 Consolidated Justice Court alleging that Defendant violated the Fair Debt Collection 21 Practice Act (FDCPA), 15 U.S.C. § 1692(e), and Section 44-1697, Fair Credit Reporting 22 of the Arizona Revised Statutes. (Doc. 1-2 at 3.) Defendant removed the case to federal 23 court pursuant to 28 U.S.C. § 1441. (Doc. 1 at 1.) On May 6, 2024, Defendant filed a 24 Motion to Dismiss for Failure to State a Claim under Federal Rule of Civil Procedure Rule 25 12(b)(6). (Doc. 7 at 1.) Although the Court ordered Plaintiff to file a response by June 14, 26 2024, Plaintiff failed to do so. (Doc. 8.) 27 II. LEGAL STANDARD 28 To survive a motion to dismiss for failure to state a claim, a plaintiff must allege 1 enough facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. 2 Twombly, 550 U.S. 544, 547 (2007). A claim is plausible “when the plaintiff pleads factual 3 content that allows the court to draw the reasonable inference that the defendant is liable 4 for the misconduct alleged.” Id. While a complaint need not plead “detailed factual 5 allegations,” the factual allegations it does include “must be enough to raise a right to relief 6 above the speculative level.” Id. at 555. “Threadbare recitals of the elements of a cause of 7 action, supported by mere conclusory statements, do not suffice.” Id. 8 In general, a complaint is construed favorably to the pleader. See Scheuer v. Rhodes, 9 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 10 800 (1982). This Court must take as true all allegations of material fact and construe them 11 in the light most favorable to Plaintiff. See Cervantes v. United States, 330 F.3d 1186, 1187 12 (9th Cir. 2003). Nonetheless, the Court does not accept as true unreasonable inferences or 13 conclusory legal allegations cast in the form of factual allegations. Western Mining Council 14 v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Nor does the Court serve as an advocate for a pro se litigant in attempting to decipher a complaint. Blaylock v. United States, 2017 WL 15 2196765, at *1 (D. Ariz. Apr. 12, 2017), report and recommendation adopted, 2017 WL 16 2172002 (D. Ariz. May 17, 2017). If the Court determines that a pleading could be cured 17 by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a 18 complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127–29 (9th 19 Cir. 2000) (en banc). 20 III. COMPLAINT 21 Plaintiff claims that “LVNV violated FDCPA § 1692e as well as Title 44 – Trade 22 and Commerce 44-1697 – Fair credit Reporting of the 2022 Arizona Revised Statutes.” 23 (Doc. 1-3 at 3.) In support of his claim, Plaintiff alleges: 24 I spoke to one of the LVNV’s agent names Maria on the 4th of January, 2024 25 via recorded phone call and I informed them that its not a good time to pay 26 the debt. Maria(agent) was aware that the call was not a dispute, but LVNV still marked the account 444796XXXXX as disputed on my credit report. 27 (Doc. 1-3 at 3.) Plaintiff states that because of Defendant’s actions, he is “stressed 28 emotionally and mentally,” he has “lost his appetite” and “focus at work,” and that “he has 1 already spent over $2082 on credit repair.” (Id.) 2 IV. ANALYSIS 3 A. Plaintiff fails to state a claim under the Fair Debt Collection Practice Act. 4 5 To state a claim under the FDCPA, a plaintiff must allege: “(1) the defendant was 6 attempting to collect a ‘debt,’ (2) the defendant is a ‘debt collector,’ (3) the plaintiff is a 7 ‘consumer,’ and (4) the defendant violated at least one subsection of the FDCPA.” 8 Hedayati v. Judge L. Firm, APC, 2018 WL 6307872, at *2 (C.D. Cal. Jan. 16, 2018) (citing 9 Gutierrez v. Wells Fargo Bank, 2009 WL 322915, at *2 (N.D. Cal. Feb. 9, 2009)). The factual allegations contained in Plaintiff’s Complaint are sparse. Plaintiff 10 alleges that Defendant, through its agent, violated the FDCPA § 1691e by marking the debt 11 as “disputed” on his credit report after he expressed that “[it’s] not a good time to pay the 12 debt.” (Doc. 1-2 at 3.) Plaintiff’s claim fails because he does not plausibly allege that the 13 Defendant was attempting to collect a debt. Reporting a debt as “disputed” to Credit 14 Reporting Agencies (CRAs) under §1692e(8) is not conduct made “in connection with 15 collection” of the debt. Drake v. Enhanced Recovery Co., LLC, 2018 WL 1402586, at *3 16 (D. Or. Mar. 19, 2018); see also Narog v. Certegy Check Servs., Inc., 759 F. Supp. 2d 1189, 17 1193 (N.D. Cal. 2011) (holding that conduct that is not taken in connection with the 18 collection of a debt is not covered by the FDCPA). Because marking an account as disputed 19 is not conduct made in connection with the collection of the debt, Plaintiff fails to 20 sufficiently allege the first element required to state a claim under the FDCPA. Therefore, 21 Plaintiff fails to state a claim upon which relief can be granted. 22 B. Plaintiff fails to state a claim under § 44-1697 of the Arizona Revised 23 Statutes. 24 Section 44-1697, Fair Credit Reporting of the 2023 Arizona Revised Statutes, states: 25 A. If a consumer makes a payment on a credit or loan account to the proper 26 address to which the payment should be directed, a person shall calculate the number of days by which an account is delinquent by determining the 27 number of days between the scheduled due date of the payment and the date 28 the payment was received by that person. 1 B. If a person uses a reporting standard that requires a calculation of the number of days an account is delinquent, the person may report the 2 delinquency based only on the number of days of the delinquency plus not 3 more than four days. 4 Plaintiff fails to plausibly allege that Defendant violated § 44-1697 of the Arizona 5 Revised Statutes. In his Complaint, Plaintiff alleges that Defendant violated § 44-1697 by 6 marking Plaintiff’s account on his credit report as “disputed.” (Doc. 1-2 at 3.) However, § 7 44-1697 concerns only the calculation of days from which a credit or loan account is 8 considered delinquent. See Ariz. Rev. Stat. § 44-1697. It does not mention or involve 9 actions against debt collectors for misrepresenting consumers’ accounts on their credit 10 reports. It is not clear from Plaintiff’s Complaint how Defendant violated § 44-1697. 11 Furthermore, Plaintiff’s claim that Defendant violated Arizona’s Fair Credit 12 Reporting statute is pre-empted by the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. 13 (FCRA). Under this federal law, “[n]o requirement or prohibition may be imposed under 14 the laws of any State … with respect to any subject matter regulated under … section 15 1681s-2 of this title, relating to the responsibilities of persons who furnish information to 16 consumer reporting agencies.” 15 U.S.C. § 1681t(b)(1)(F)(ii). The FCRA pre-empts state 17 law claims related to a furnisher’s responsibility for furnishing information. Royal v. 18 Equifax, 405 F. Supp. 2d 1177, 1181 (E.D. Cal. 2005). Because Plaintiff’s claim is related 19 to the furnishment of information to CRAs by Defendant, Plaintiff’s claim is pre-empted 20 by the FCRA. Accordingly, Plaintiff fails to state a claim under Arizona’s Fair Credit 21 Reporting statute. 22 V. Amendment The Court finds that dismissal with leave to amend is appropriate. See Noll v. 23 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded by statute as stated in Akhtar v. 24 Mesa, 698 F.3d 1202 (2012) (leave to amend is liberally granted unless absolutely clear 25 deficiencies cannot be cured by amendment). The Court has provided the reasons for the 26 dismissal to permit Plaintiff to make an intelligent decision whether to file an Amended 27 Complaint. See Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962). 28 An amended complaint supersedes the original. Hal Roach Studios v. Richard 1 Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). Any Amended Complaint filed by 2 Plaintiff must be retyped or rewritten in its entirety and may not incorporate any part of the 3 original Complaint by reference. An Amended Complaint must be clearly designated as an 4 Amended Complaint on the face of the document and formatted in compliance with 5 L.R.Civ 7.1. Plaintiff is advised that if an Amended Complaint fails to state a claim upon 6 which relief can be granted, the Court will likely dismiss this action. Additionally, Plaintiff 7 is advised that if he fails to timely comply with every provision of this Order, this action 8 will be dismissed pursuant to Fed. R. Civ. P. 41(b). See Ferdik v. Bonzelet, 963 F.2d 1258, 9 1260 (9th Cir. 1992) (noting that a district court may dismiss action for failure to comply 10 with any order of the Court). 11 VI. Notice regarding resources for self-represented litigants 12 Plaintiff is advised of resources available to self-represented parties on the District 13 Court website at https://www.azd.uscourts.gov/proceeding-without-attorney-0. Notably, 14 the webpage contains: (1) a Handbook for Self-Represented Litigants at https://publicapps.azd.uscourts.gov/prose-survey/; (2) the Federal Rules of Civil Procedure 15 and Local Rules of Practice for the District of Arizona (also known as the Local Rules of 16 Civil Procedure, Local Rules, or LRCiv); and (3) information about accessing free civil 17 legal help with an attorney through Step Up To Justice at 18 https://www.azd.uscourts.gov/federal-court-advice-only-clinic-tucson. 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // | IT IS ORDERED: 2 1. Defendant’s Motion to Dismiss for Failure to State a Claim (Doc. 7) is granted. 3 2. Plaintiff's Complaint (Doc. 1) is dismissed without prejudice, with leave to 4 amend. Plaintiff has twenty (20) days from the date this Order is filed to file a 5 first amended complaint in compliance with this Order. 6 3. If Plaintiff fails to file a first amended complaint within twenty (20) days of the 7 filing date of this Order, the Clerk of the Court is directed to enter a judgment 8 of dismissal, without prejudice, without further notice to Plaintiff. 9 Dated this 14th day of August, 2024. 10 11 □ 12 □□ 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-6-