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Middleton v. Cavalry Portfolio Services, LLC

United States District Court, D. Nevada

March 13, 2017

ANN GATES MIDDLETON, Plaintiff,
v.
CAVALRY PORTFOLIO SERVICES, LLC, CITIBANK N.A. INC., Defendants.

          ORDER ORDER (DEFENDANT CAVALRY PORTFOLIO SERVICES, LLC'S MOTION TO DISMISS - ECF NO. 12; DEFENDANT CITIBANK N.A., INC.'S MOTION TO DISMISS - ECF NO. 29)

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court is Defendant Cavalry Portfolio Services, LLC's (“CPS”) Motion to Dismiss Plaintiff's First Amended Complaint (“Motion”) (ECF No. 12) and Defendant Citibank N.A. Inc.'s (“Citi”) Motion to Dismiss Plaintiff's First Amended Complaint (“Motion”) (ECF No. 29) (collectively, “Motions”). The Court has reviewed the Plaintiff's Opposition to CPS's Motion (ECF No. 14) and Plaintiff's Opposition to Citi's Motion (ECF No. 32), as well as CPS's reply (ECF No. 18) and Citi's reply (ECF No. 34).

         For the reasons discussed below, CPS's Motion is granted, and leave to amend will be permitted as to Count I. Citibank's Motion is also granted.

         II. BACKGROUND

         The following facts are taken from Plaintiff Ann Middleton's First Amended Complaint (“FAC”). (ECF No. 5.) Plaintiff alleges that on or about March 8, 2016, she sent a certified letter to Citi disputing a credit card bill that appeared on her credit report. Citi responded in writing that Middleton's account had been sold and was being deleted from the three credit reporting agencies (“CRAs”). On or about April 10, 2016, Plaintiff received a collection letter from CPS demanding payment (presumably in relation to her former Citibank account). Three days later, Plaintiff sent a debt validation letter by fax to CPS and also requested that CPS not contact her (other than to validate the debt). However, on April 29, 2016, Plaintiff received a collection call from CPS, which was made with an autodialer. The CPS representative did not immediately identify himself as a debt collector.

         On May 10, 2016, Plaintiff received another collection letter from CPS with a copy of Plaintiff's purported bill. She immediately sent another debt validation letter by fax, claiming that CPS had not complied with her earlier debt validation request (ostensibly the attached bill was their attempt to satisfy Plaintiff's request). In the letter, she also disputed the validity of the debt or a duty that she had to pay it. Plaintiff states that CPS did not respond to this fax.

         Plaintiff alleges three counts against Defendants. In Count I, she alleges that CPS violated the Fair Debt Collection Practices Act (“FDCPA”) by: (1) falsely representing the character, amount, or legal status of the debt; (2) using false representations or deceptive means to attempt to collect the debt or obtain information from Plaintiff; (3) failing to send Plaintiff a written notice apprising Plaintiff of her rights under the FDCPA; (4) failing to provide written validation of the debt before resuming collection activities; and, (5) contacting Plaintiff after she requested that CPS not contact her. In Count II, Plaintiff alleges that CPS violated the Telephone Communication Protection Act (“TCPA”) by: (1) using an automatic telephone dialing system to call Plaintiff's home phone number without express consent to do so; (2) soliciting a “Do Not Call” registry phone number; and, (3) failing to state the caller's name at the beginning of the collection call. Plaintiff appears also to allege in this count that Citi is vicariously liable for CPS's violation of the TCPA. In Count III, Plaintiff alleges that both CPS and Citi violated NRS § 598.0977 of the Nevada Deceptive Trade Practices Act (“NDTPA”), which provides that an elderly person or person with a disability who suffers damage or injury from a deceptive trade practice may be compensated for the actual damages caused by the trade practice. In this count, Plaintiff also contends that Citi's corporate charter does not authorize it to engage in consumer lending, that she does not have a contract with Citibank, and that Citi is in violation of the Federal Trade Commission Act by failing to contain a specific notice in their consumer credit contracts. Plaintiff also mentions a David P. Owen in this count, asserting that she “disputes that [he] owes [Citi] money and demands strict proof.” (ECF No. 5 at 7.) The Court will disregard this allegation and claim for relief as there are no facts pertaining to a David P. Owen in the FAC.

         III. LEGAL STANDARD

         A court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pleaded complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570) (internal quotation marks omitted).

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, a district court must accept as true all well-pleaded factual allegations in the complaint; however, legal conclusions are not entitled to an assumption of truth. Id. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a district court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow a court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged - but it has not shown - that the pleader is entitled to relief.” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)) (internal quotation marks and alteration omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. A complaint must contain either direct or inferential allegations concerning “all the material elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).

         A complaint must contain either direct or inferential allegations concerning “all the material elements necessary to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989) (emphasis in original)). Mindful of the fact that the Supreme Court has “instructed the federal courts to liberally construe the ‘inartful pleading' of pro se litigants, ” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987), the Court will view Plaintiff's pleadings with the appropriate degree of leniency.

         IV. CPS'S MOTION (ECF No. 12)

         A. ...


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