Noel v. Bank Of America
Filing
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Order by Hon. Samuel Conti granting 7 Motion to Dismiss.(sclc2, COURT STAFF) (Filed on 11/8/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LAUREN NOEL,
Plaintiff,
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For the Northern District of California
United States District Court
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v.
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BANK OF AMERICA,
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Defendant.
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) Case No. 12-4019-SC
)
) ORDER GRANTING DEFENDANT'S
) MOTION TO DISMISS
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I.
INTRODUCTION
On July 31, 2012, Plaintiff Lauren Noel ("Plaintiff") filed a
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complaint naming Bank of America ("BOA") as the sole defendant.
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ECF No. 1 ("Compl.").
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from BOA's alleged attempts to collect a consumer credit card debt
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from Plaintiff: (1) violation of the Fair Debt Collection Practices
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Act, 15 U.S.C. § 1692 et seq. ("FDCPA"); (2) violation of the Fair
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Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"); (3) unfair
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business practices under California's Unfair Competition Law, Cal.
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Bus. & Prof. Code § 17200 et seq. ("UCL"); (4) violation of the
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Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788
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et seq. ("RFDCPA"); and (5) negligence per se, based on BOA's
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alleged failure to comply with the FDCPA, FCRA, UCL, and RFDCPA.
The complaint asserts five claims arising
On August 27, 2012, FIA Card Services, N.A. ("FIA") came
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forward as a defendant and filed a certificate and notice of
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interested parties in which it certified that it is a wholly-owned
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subsidiary of Bank of America Corporation.
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Concurrently, FIA filed a motion to dismiss Plaintiff's complaint
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pursuant to Federal Rule of Civil Procedure 12(b)(6).
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("Mot.").
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FIA is the real party in interest.
ECF No. 8.
ECF No. 7
FIA represents that Plaintiff sued BOA in error and that
See id. at 3.
FIA's motion to dismiss is now pending before the Court.
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United States District Court
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For the Northern District of California
ECF Nos. 10 ("Opp'n"), 14 ("Reply").
It
has been fully briefed.
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oral argument is needed.
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forth herein, the Court GRANTS FIA's motion to dismiss.
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DISMISSES Plaintiff's complaint, in part with prejudice and in part
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with leave to amend, as set forth below.
Civ. L.R. 7-1(b).
No
For the reasons set
The Court
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II.
BACKGROUND
Plaintiff alleges that she paid off any debt she may once have
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owed to BOA.
Compl. ¶ 13.
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assistance from counsel to address BOA's allegedly "aggressive and
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harassing collection efforts."
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through counsel, she sent to BOA via facsimile a letter which
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"disputed the debt purportedly owed, sought an accounting, and
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demanded that collections efforts cease and desist."
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id. Ex. A ("April 29 Letter").
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the April 29 Letter, BOA "actually increased its collection
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efforts, using not only multiple telephone calls but also text
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messages."
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another letter to BOA on May 18, 2009.
Id. ¶ 22.
She alleges that, in 2009, she sought
Id. ¶ 14.
On April 29, 2009,
Id. ¶¶ 20-21;
Plaintiff alleges that, following
This prompted Plaintiff's counsel to fax
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Id. ¶¶ 23-24; id. Ex. B
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("May 18 Letter").
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contacted various entities -- apparently, debt collectors -- and
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collection efforts ceased.
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Over the next few months, Plaintiff's counsel
Id. ¶¶ 25-29.
Plaintiff alleges that, "[d]uring the summer of 2011,
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Plaintiff attempted to purchase a home and learned that she would
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be forced to continue renting due to credit reporting by Defendants
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[sic]."
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reports with all three credit reporting agencies."
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Plaintiff allegedly received an investigation report from the
Id. ¶ 30.
Plaintiff alleges that she "contested the
Id. ¶ 31.
United States District Court
For the Northern District of California
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credit reporting agency TransUnion, dated August 30, 2011, which
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shows that BOA "reported the debt as verified with no change."
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¶ 31; id. Ex. E ("Report").
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received another debt collection attempt from a non-BOA entity in
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the spring of 2012, but that this entity "ceased collections
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shortly thereafter."
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BOA "continued to fail to correct its reporting of the invalidated
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debt" and represented to her that BOA "would do nothing but attempt
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to report the alleged debt as 'sold.'"
Id.
Plaintiff alleges that her counsel
Id. ¶¶ 33-34.
Plaintiff further alleges that
Id. ¶ 35.
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III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure
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12(b)(6) "tests the legal sufficiency of a claim."
Navarro v.
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Block, 250 F.3d 729, 732 (9th Cir. 2001).
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on the lack of a cognizable legal theory or the absence of
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sufficient facts alleged under a cognizable legal theory."
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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
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1988).
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should assume their veracity and then determine whether they
"Dismissal can be based
"When there are well-pleaded factual allegations, a court
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plausibly give rise to an entitlement to relief."
Ashcroft v.
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Iqbal, 556 U.S. 662, 679 (2009).
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must accept as true all of the allegations contained in a complaint
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is inapplicable to legal conclusions.
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elements of a cause of action, supported by mere conclusory
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statements, do not suffice."
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Twombly, 550 U.S. 544, 555 (2007)).
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complaint must be both "sufficiently detailed to give fair notice
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to the opposing party of the nature of the claim so that the party
However, "the tenet that a court
Threadbare recitals of the
Id. at 678 (citing Bell Atl. Corp. v.
The allegations made in a
United States District Court
For the Northern District of California
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may effectively defend against it" and "sufficiently plausible"
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such that "it is not unfair to require the opposing party to be
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subjected to the expense of discovery."
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1191, 1204 (9th Cir. 2011).
Starr v. Baca, 633 F.3d
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IV.
DISCUSSION
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A.
General Pleading Defects
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For at least two reasons, the complaint as a whole is
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insufficiently pled and therefore subject to dismissal.
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is that Plaintiff has not named a legal entity as a defendant.
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Court is unaware of any entity named "Bank of America" (as opposed
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to, for example, "Bank of America, N.A.").
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Am., CIV. 10-00551, 2011 WL 240813, at *3 (D. Haw. Jan. 21, 2011)
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(observing that "Bank of America" is "not a legal entity" and
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dismissing case with leave to file amended complaint "against a
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properly-named defendant or defendants").
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Plaintiff takes the position that BOA acted as a debt collector on
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behalf of FIA.
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itself alleges no relationship between BOA and FIA, because it does
Opp'n at 2.
The first
The
See Phillips v. Bank of
In her opposition,
That may be so, but the complaint
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not mention FIA.
Neither does it allege who owns or owned the
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alleged debt that Plaintiff allegedly satisfied.
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amends her complaint, she shall properly name a legal entity as
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defendant, and she shall allege the owner of the alleged debt in
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addition to the identity of the alleged debt collector.
If Plaintiff
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The second reason Plaintiff's pleading fails as a general
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matter is that it does not plainly state which allegations support
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which claim.
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single factual account.
Plaintiff sets out her factual allegations in a
Compl. ¶¶ 13-36.
Each of her five claims
Id. ¶¶ 37, 41, 46, 51,
United States District Court
For the Northern District of California
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then incorporates these facts by reference.
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54.
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recital[] of the elements of a cause of action, supported by mere
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conclusory statements."
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depends solely on the factual allegations incorporated by
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reference.
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The remainder of each claim consists of a "[t]hreadbare
Iqbal, 556 U.S. at 678.
Each claim, then,
Incorporation by reference is sometimes warranted and,
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"[p]roperly used, such incorporation promotes simple, concise
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pleadings."
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at *4 (E.D. Cal. Jan. 8, 2009) aff'd sub nom. Destfino v. Reiswig,
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630 F.3d 952 (9th Cir. 2011).
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connected specific allegations to the elements of her claims.
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There is no way to tell which allegedly wrongful act goes with
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which legal claim.
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articulate why the alleged conduct is unlawful.
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fails to satisfy Rule 8(a)'s requirement that the pleading set
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forth a "short and plain statement" of the facts giving rise to
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each claim for relief.
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to amend her complaint, each claim must be set out with a short and
Destfino v. Kennedy, CVF081269LJODLB, 2009 WL 63566,
Here, however, Plaintiff has not
Put another way, Plaintiff has yet to
Plaintiff thus
Plaintiff is advised that, if she chooses
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plain statement of the specific factual allegations supporting that
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claim.
The Court also observes that Plaintiff, in both her complaint
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and opposition, emphasizes allegations that Defendant "lied to
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her."
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not to bring a claim for misrepresentation, her allegations of
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lying sound in fraud and hence are subject to Rule 9(b), which
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requires Plaintiff to "state with particularity the circumstances
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constituting fraud . . . ."
Compl. ¶¶ 15-16; Opp'n at 2.
Though Plaintiff has chosen
Fed. R. Civ. P. 9(b).
"To satisfy
United States District Court
For the Northern District of California
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Rule 9(b), a pleading must identify 'the who, what, when, where,
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and how of the misconduct charged,' as well as 'what is false or
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misleading about [the purportedly fraudulent] statement, and why it
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is false.'"
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637 F.3d 1047, 1055 (9th Cir. 2011) (internal citations omitted).
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Plaintiff's allegations, which omit what was said, when, by whom,
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under what circumstances, or why the statements were false, fall
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far short of satisfying this standard.
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misrepresentation must comply with Rule 9(b).
Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc.,
Any further allegations of
Because the entire complaint is inadequately pled and thus
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subject to dismissal, the next question is whether any of
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Plaintiff's claims shall be dismissed with prejudice.
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district court should grant leave to amend . . . unless it
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determines that the pleading could not possibly be cured by the
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allegation of other facts."
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1105 (9th Cir. 2011) (quoting Lopez v. Smith, 203 F.3d 1122, 1130
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(9th Cir. 2000)).
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Plaintiff's individual claims.
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///
"[A]
Silva v. Di Vittorio, 658 F.3d 1090,
With this standard in mind, the Court turns to
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B.
FDCPA
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The FDCPA applies to debt collectors.
15 U.S.C. § 1692a(6).
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It does not, however, apply to creditors who seek to collect a debt
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in their own right.
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Plaintiff's FDCPA claim fails as a matter of law because FIA is not
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a debt collector within the meaning of § 1692a(6); rather, FIA
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avers, it is a creditor seeking to collect its own debt.
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5.
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owns the debt.
Id. § 1692a(6)(A).
FIA argues that
Mot. at
However, as explained above, the complaint does not allege who
Accordingly, the Court cannot ascertain whether the
United States District Court
For the Northern District of California
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alleged debt is one allegedly owned by FIA or some other entity.
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The Court is aware of FIA's position that it is part of BOA
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and the real party in interest, and of the authorities FIA has
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marshaled in support of this point.
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However, the complaint names BOA, not FIA, and at this juncture the
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Court is not inclined to reach beyond the boundaries of the
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complaint and impute BOA's conduct to FIA, or vice-versa.
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would amount to a de facto revision of Plaintiff's complaint.
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Plaintiff is master of her complaint and she will have another
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opportunity to set forth her allegations against the party she
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indeed wants to sue.
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Reply at 2-3 (citing cases).
Doing so
The Court also acknowledges Plaintiff's argument that BOA
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serves as a debt collector on behalf of FIA.
Opp'n at 3; see also
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Compl. ¶ 38 (alleging, in its entirety, that "Defendants [sic] are
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debt collectors as defined by 15 U.S.C. [§] 1692a(6)").
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facts must be alleged in a pleading, not the moving papers.
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noted above, Plaintiff's complaint does not mention FIA or explain
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its relationship to BOA, which, in any event, is not a legal
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entity.
However,
As
Moreover, Plaintiff's argument rests on the premise that
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BOA is a debt collector.
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debt collector is a legal conclusion, not a factual allegation
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entitled to the presumption of truth.
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Because the FDCPA defines "debt collector" to include one who
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collects a debt on behalf of another but to exclude those who
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collect on their own debts, Plaintiff needs to allege facts
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addressing the ownership of the debt.
Iqbal, 556 U.S. at 680.
The Court DISMISSES Plaintiff's FDCPA claim.
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But Plaintiff's statement that BOA is a
Plaintiff has
leave to amend this claim consistent with the guidance herein.
United States District Court
For the Northern District of California
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C.
FCRA
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The FCRA requires "furnishers of information . . . to consumer
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reporting agencies to provide accurate information" regarding a
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consumer's debt.
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however, there is no private right of action to enforce the
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obligations established by § 1681s–2(a).
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Manhattan Mortgage Corp., 282 F.3d 1057, 1059 (9th Cir. 2002)
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(holding that only federal and state officials can enforce the
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provisions set forth in § 1681s–2(a)).
15 U.S.C. § 1681s–2(a).
As FIA correctly notes,
See Nelson v. Chase
The FCRA does, however, confer a private right of action upon
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consumers and allow them to sue a furnisher of credit information
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if such furnisher breaches any of the duties enumerated in § 1681s–
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2(b).
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(9th Cir. 2009).
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furnisher receives notice of dispute from a [credit reporting
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agency] . . . ."
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credit information furnished to the three credit reporting agencies
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by BOA.
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is not named in the complaint) ever received notice of the dispute.
See Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1154
However, "[t]hese duties arise only after the
Id.
Here, Plaintiff alleges that she contested
However, she does not allege that BOA (let alone FIA, who
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Moreover, to state a claim for furnishing inaccurate information,
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Plaintiff must identify which information is inaccurate.
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Carvalho v. Equifax Info. Servs., LLC, 588 F. Supp. 2d 1089, 1096
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(N.D. Cal. 2008) aff'd, 629 F.3d 876 (9th Cir. 2010).
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points out, Mot. at 7-8, Plaintiff has not done so.
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Plaintiff has not stated a claim under § 1681s-2(b).
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The Court DISMISSES Plaintiff's FCRA claim.
See
As FIA
Accordingly,
This claim is
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dismissed with prejudice to the extent it is premised on alleged
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violations of § 1681s-2(a), for which there is no private right of
United States District Court
For the Northern District of California
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action.
Plaintiff has leave to amend to assert a claim based on §
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1681s-2(b).
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D.
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The UCL provides plaintiffs with three theories of relief, or
UCL
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"prongs," under which to challenge a business practice:
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unlawfulness, unfairness, or fraud.
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Cal. App. 4th 832, 838-39 (Cal. Ct. App. 1994) (distinguishing
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prongs).
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means to invoke.
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articulate a recognizable legal theory, along with a paucity of
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factual allegations, justifies dismissal of her UCL claim.
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See Saunders v. Sup. Court, 27
Plaintiff does not identify which prong of the UCL she
See Compl. ¶¶ 46-50.
Plaintiff's failure to
FIA argues that giving Plaintiff leave to amend this claim
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would be improper because the FCRA preempts all state-law claims
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based on conduct which also violates § 1681s–2(b).
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Reply at 4.
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Plaintiff is proceeding on a UCL unlawfulness theory, since the
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authorities FIA cites deal with the unlawfulness prong.
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Howard v. Blue Ridge Bank, 371 F. Supp. 2d 1139, 1143-44 (N.D. Cal.
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2005).
Mot. at 8-9;
First, the Court notes that FIA appears to assume that
E.g.,
As the Court explained in the previous paragraph, that may
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or may not be so.
But assuming it is true that Plaintiff's UCL
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claim rests on the UCL's unlawfulness prong, the Court believes
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that Defendant overstates the preemptive effect of the FCRA on UCL
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unlawfulness claims.
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courts in this circuit have adopted a variety of approaches to
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determining the preemptive effect of the FCRA, some of which sweep
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more broadly than others.
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Ass'n, C 12-01857 WHA, 2012 WL 1980416, at *3-6 (N.D. Cal. June 1,
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2012).
As this Court recently explained, district
See Subhani v. JPMorgan Chase Bank, Nat.
Even applying the "total preemption" approach that FIA
United States District Court
For the Northern District of California
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tacitly endorses, UCL claims based on violations of section
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1785.25(a) of the California Consumer Credit Reporting Agencies Act
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are not preempted.
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assumptions are correct, the Court would be inclined to give
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Plaintiff leave to amend to assert a UCL unlawfulness claim based
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on section 1785.25(a).
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Id. at *7.
Accordingly, even if FIA's
As the matter stands, however, Plaintiff has yet to articulate
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with precision the legal basis of her UCL claim.
Accordingly, the
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Court DISMISSES Plaintiff's UCL claim.
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amend it consistent with the guidance provided in this order.
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Plaintiff must articulate a cognizable theory of recovery under at
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least one clearly identified UCL prong, along with specific factual
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allegations supporting that claim.
Plaintiff has leave to
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E.
RFDCPA
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"Like the FDCPA, the RFDCPA applies only to debt collectors."
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Izenberg v. ETS Services, LLC, 589 F. Supp. 2d 1193, 1199 (C.D.
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Cal. 2008).
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statute is broader than that contained in the FDCPA, however."
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"The RFDCPA defines a 'debt collector' as 'any person who, in the
"The definition of 'debt collector' found in the state
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Id.
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ordinary course of business, regularly, on behalf of himself or
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herself or others, engages in debt collection.'"
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added) (quoting Cal. Civ. Code § 1788.2(c)).
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Plaintiff's FDCPA claim fails in part because it fails to allege
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that Plaintiff's alleged debt was being collected on behalf of
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another, Plaintiff's RFDCPA claim cannot fail for that reason: The
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RFDCPA covers entities that collect a debt on their own behalf.
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Id. (emphasis
Accordingly, while
However, Plaintiff's claim still fails as insufficiently pled.
Plaintiff's pleading does not go beyond legal conclusions.
In
United States District Court
For the Northern District of California
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pertinent part, "Plaintiff alleges a violation of RFDCPA, Cal. Civ.
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Code § 1788 et seq." and that the violations "were done willfully
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and knowingly to coerce Plaintiff into paying the alleged debt."
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Compl. ¶¶ 52-53.
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legal conclusions, and declines even to identify which section of
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the RFDCPA allegedly was violated.
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Plaintiff identifies no facts supporting these
Accordingly, the Court DISMISSES Plaintiff's RFDCPA claim.
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Plaintiff has leave to amend this claim, but must articulate a
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cognizable legal theory supported by specific facts.
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F.
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Plaintiff's negligence claim relies on the doctrine of
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Negligence Per Se
negligence per se.
Under that doctrine,
negligence
is
presumed
if
the
plaintiff
establishes four elements: (1) the defendant
violated a statute, ordinance, or regulation of
a public entity; (2) the violation proximately
caused death or injury to person or property;
(3) the death or injury resulted from an
occurrence of the nature of which the statute,
ordinance, or regulation was designed to
prevent; and (4) the person suffering the death
or the injury to his person or property was one
of the class of persons for whose protection
the statute, ordinance, or regulation was
adopted.
The first two elements are normally
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questions for the trier of fact, while the
latter two elements are determined by the trial
court as a matter of law.
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Galvez v. Frields, 88 Cal. App. 4th 1410, 1420 (Cal. Ct. App.
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2001).
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Here, Plaintiff's claim of per se negligence is premised on
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asserted violations of the FDCPA, FCRA, UCL, and RFDCPA.
Compl. ¶¶
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54-58.
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her negligence per se claim also fails.
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is some question about the scope of FCRA preemption as applied to
Because each of her claims under those laws fails as pled,
Moreover, although there
United States District Court
For the Northern District of California
10
Plaintiff's UCL claim, there is none as applied to a negligence
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claim: such claims are specifically preempted by statute.
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U.S.C. § 1681h(e).
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unlimited.
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state claims for defamation, invasion of privacy and negligence and
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only to the extent such claims are based on the disclosure of
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certain types of information and are not based on malice or willful
17
intent to injure."
18
quotation marks omitted).
19
falls within the scope of preemption to the extent it is based on
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an alleged FCRA violation, and her complaint contains no
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allegations of malice or willful intent to injure.
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extent that Plaintiff's negligence per se claim relies on conduct
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that violates the FCRA, it fails as a matter of law.
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See 15
The preemptive scope of § 1681h(e) is not
"By its plain terms, Section 1681h(e) only preempts
Subhani, 2012 WL 1980416, at *3 (internal
Plaintiff's negligence claim clearly
Hence, to the
Accordingly, Plaintiff's negligence per se claim is DISMISSED.
25
The dismissal is with prejudice insofar as Plaintiff's negligence
26
claim depends on conduct that violates the FCRA.
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plaintiff has leave to amend this claim consistent with the
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guidance herein.
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Otherwise,
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V.
CONCLUSION
For the foregoing reasons, the Court GRANTS FIA Card Services,
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N.A.'s motion to dismiss the complaint of Plaintiff Lauren Noel.
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The Court DISMISSES Plaintiff's claims as follows:
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•
Claim 1 (FDCPA) is dismissed with leave to amend.
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•
Claim 2 (FCRA) is dismissed with prejudice to the extent
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it is based on 15 U.S.C. § 1681s–2(a), which provides no
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private right of action.
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to amend this claim.
Plaintiff otherwise has leave
United States District Court
For the Northern District of California
10
•
Claim 3 (UCL) is dismissed with leave to amend.
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•
Claim 4 (RFDCPA) is dismissed with leave to amend.
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•
Claim 5 (negligence per se) is dismissed with prejudice
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to the extent it is based on alleged violations of the
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FCRA, negligence claims for such conduct being preempted.
15
Plaintiff otherwise has leave to amend this claim.
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Any amendments shall be consistent with the guidance contained
17
in this order.
Plaintiff shall file her amended complaint within
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thirty (30) days of the signature date of this Order.
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do so shall result in dismissal of this case with prejudice.
Failure to
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IT IS SO ORDERED.
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Dated:
November 8, 2012
UNITED STATES DISTRICT JUDGE
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