Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mallory v. McCarthy Holthus, LLP

United States District Court, District of Nevada

May 11, 2015

ROBERT MALLORY, KAREN MALLORY and ALAN WILLEY, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
MCCARTHY & HOLTHUS, LLP, Defendant,

ORDER

Kent J. Dawson, United States District Judge.

Before the Court is Defendant McCarthy & Holthus, LLP's Motion to Dismiss (#13) Plaintiffs' first amended complaint. Plaintiffs Robert Mallory, Karen Mallory, and Alan Willey filed a response in opposition (#17) to which Defendant replied (#18).

I. Background

Plaintiffs Robert Mallory and Karen Mallory ("the Mallorys") are Clark County residents who obtained a mortgage loan to purchase a home in Las Vegas (#12, p. 5). Plaintiff Alan Willey ("Willey") is a Clark County resident who obtained a mortgage loan to purchase a home in Henderson. Id. at 10. In 2013, Defendant, a multi-state law firm, sent a letter to the Mallorys and a letter to Willey (#13, p. 4). The letters, which are nearly identical, stated that Plaintiffs' mortgage payments were past due and their properties had been referred to foreclosure (#14, Ex. 1, 2). Both letters indicated that Plaintiffs could avoid foreclosure by making their accounts current, obtaining a loan modification, or selling their properties through an approved short sale. Id. Each letter detailed Plaintiffs' account information, including: the total amount needed to reinstate and avoid foreclosure, the amount in default, the current unpaid principal obligation under the mortgage, the amount of interest accrued, the amount of accrued late charges, and the estimate of fees imposed in connection with the power of sale. Id.

Several months later, Plaintiffs filed a complaint (#1) and a first amended complaint (#12) asserting that Defendant violated the Fair Debt Collection Practices Act ("FDCPA") and the Nevada Deceptive Trade Practices Act ("NDTPA") when it sent letters that, Plaintiffs alleged, were not in compliance with the FDCPA. Defendant filed the present motion to dismiss pursuant to FED. R. Civ. P. 12(b)(6).

II. Legal Standard

In considering a motion to dismiss, "all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party." Wyler Summit Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Consequently, there is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plausibility, in the context of a motion to dismiss, means that a plaintiff has pleaded facts which allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.

The Iqbal evaluation illustrates a two prong analysis. First, a court identifies the allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 1949-51. Second, a court determines if the remaining factual allegations plausibly suggest an entitlement to relief. Id. at 1951. If the allegations state plausible claims for relief, the claims survive the motion to dismiss. Id. at 1950.

III. Analysis

Defendant contends that Plaintiffs' first amended complaint should be dismissed because (1) Defendant did not engage in "debt collection, " as defined by the FDCPA; (2) Defendant is not a "debt collector, " as defined by the FDCPA; (3) Plaintiffs' claim involving 15 U.S.C. § 1692f is deficient; and (4) Plaintiffs failed to properly plead an NDTPA claim.

A. The Fair Debt Collection Practices Act

Congress passed the FDCPA to eliminate abusive debt collection practices by debt collectors, ensure that debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and promote consistent State action to protect consumers against debt collection abuses. 15 U.S.C. § 1692(e). To accomplish this, the FDCPA prohibits several debt collection practices and allows individuals to sue offending debt collectors. See 15 U.S.C. §§ 1692a-p.

In their first amended complaint, Plaintiffs allege that Defendant violated three FDCPA provisions. The first provision, 15 U.S.C. § 1692g(a), requires a debt collector to send a consumer written notice within "five days after the initial communication with a consumer in connection with the collection of any debt, " and outlines the contents of that notice. The second provision, 15 U.S.C. § 1692e, prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." The third ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.