United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court.
before the Court are nine Motions to Dismiss, (ECF Nos. 48,
52, 56, 60, 64, 81, 82, 83, 84), filed by Defendants Aargon
Agency, Inc. (“Aargon”) and Defendant Armand
Fried (“Fried”) (collectively
“Defendants”). Plaintiffs Cristal Landeros
(“Landeros”), Christopher and Leslie Hegner
(“the Hegners”), Michael Smith
(“Smith”), Daniel Chatman
(“Chatman”), Mataese Pili (“Pili”),
Michelle Mercado (“Mercado”), Kinika Jackson
(“Jackson”), Corina Phillips
(“Phillips”), and Dana Serrata
“Plaintiffs”) filed Responses, (ECF Nos. 49, 53,
57, 61, 65, 88, 86, 85, 87), and Defendants filed Replies,
(ECF Nos. 51, 55, 59, 63, 67, 90, 92, 89, 91).
reasons discussed herein, Defendants' Motions to Dismiss
as to Landeros, the Hegners, Pili, Mercado, Jackson,
Phillips, and Serrata, (ECF Nos. 48, 52, 64, 81, 82, 83, 84),
are GRANTED. Defendants' Motion to
Dismiss as to Smith, (ECF No. 56), is GRANTED in
part and DENIED in part.
consolidated action arises from Defendants' alleged
violations of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692, et. seq. (“FDCPA”).
Specifically, Plaintiffs allege FDCPA violations based upon
Defendants' entering confessions of judgment
(“COJ”) against them in state court (“COJ
Violations”). In addition to the COJ Violations, Smith
further alleges FDCPA violations concerning writs of
execution (“Writ of Execution Violations”)
arising from a default judgment entered against him. The
Court will discuss the COJ Violations and Writ of Execution
Violations in turn.
their Complaints, Plaintiffs allege that Aargon and Fried,
who are debt collectors under the FDCPA, induced them to sign
Installment Payment Agreements (“IPAs”), secured
by COJs, which Defendants subsequently filed in state court.
See Landeros v. Aargon Agency, Inc., No.
2-17-cv-00521-GMN-NJK (Landeros Compl. 2:13-16, ECF No.
Defendants obtained the IPAs and COJs on behalf of various
third-party creditors to collect debts allegedly owed by
Plaintiffs. (Id.). According to Plaintiffs, the COJs
unlawfully provide for amounts due beyond those owed to the
third-party creditors. (Id. 2:17-23). Specifically,
the COJs provide for an interest rate of 9.25% (the
“Interest Rate Violation”), and a document
preparation fee of $75.00 (the “Unauthorized Fees
Violations”). (Id. 2:20-23). Landeros, the
Hegners, Pili, and Smith further allege that the COJs
unlawfully provide for court costs in the amount of $74.00.
signed their respective IPAs, and Defendants subsequently
filed the COJs in state court on the following dates: Serrata
signed the IPA on August 15, 2014, and Defendants filed the
COJ on October 17, 2014, (see Ex. 1 to MTD, ECF No.
84); Pili signed the IPA on August 22, 2014, and Defendants
filed the COJ on January 26, 2016, (see Ex. 1 to
MTD, ECF No. 64); the Hegners signed their IPAs on August 29,
2014, and Defendants filed the COJs in December 2015, which
were subsequently docketed on December 7, 2015, (see
Exs. 1- 2 to MTD, ECF No. 52); Jackson signed the IPA on
September 15, 2014, and Defendants filed the COJ on November
7, 2014, (see Ex. 1 to MTD, ECF No. 82); Mercado
signed the IPA on September 18, 2014, and Defendants filed
the COJ on August 3, 2015, (see Ex. 1 to MTD, ECF
No. 81); Phillips signed the IPA on December 17, 2014, and
Defendants filed the COJ on August 5, 2015, (see Ex.
1 to MTD, ECF No. 83); Landeros signed the IPA on December
31, 2014, and Defendants filed the COJ on December 4, 2015,
(see Ex. 1 to MTD, ECF No. 48); Smith signed the IPA
on February 12, 2015, and Defendants filed the COJ on August
7, 2015, (see Ex. 1 to MTD, ECF No. 56).
Default Judgment and Writ of Execution Violations
addition, Smith further alleges that Defendants obtained a
default judgment against him on July 24, 2013, concerning an
alleged debt owed to a third-party creditor unrelated to the
COJ. See Smith v. Aargon Agency, Inc., No.
2:17-cv-00552-GMN-NJK (Smith Compl. 2:13- 16, ECF No. 1).
With respect to the default judgment, Smith alleges
Defendants subsequently obtained five writs of execution to
enforce the judgment on October 12, 2013; March 11, 2014;
January 20, 2015; February 8, 2016; and November 11, 2016.
(Smith Compl. 2:20-4:24). According to Smith, the writs of
execution “grossly exceed the amounts awarded to the
Defendants and [are] not provided for in the Default
Judgment.” (Id. 4:27-5:2).
The Consolidated Action
February 2017, Landeros, the Hegners, Smith, and Pili filed
their Complaints. (See Landeros Compl.); Hegner
v. Aargon Agency, Inc., No. 2:17-cv-00525-GMN-NJK
(Hegner Compl., ECF No. 1); (Smith Compl.); Pili v.
Aargon Agency, Inc., No. 2:17-cv-00576-GMN- NJK (Pili
Compl., ECF No. 1). On May 4, 2017, the Court consolidated
these actions under the lead case number 2:16-cv-2066-GMN-NJK
(the “Consolidated Action”). (See Order
Consolidating Cases, ECF No. 47).
5, 2017, Mercado, Jackson, Phillips, and Serrata filed their
Complaints. See Mercado v. Aargon Agency, Inc., No.
2:17-cv-01267-GMN-NJK (Mercado Compl., ECF No. 1);
Jackson v. Aargon Agency, Inc., No.
2:17-cv-01268-GMN-NJK (Jackson Compl., ECF No. 1);
Phillips v. Aargon Agency, Inc., No.
2:17-cv-01269-GMN-NJK (Phillips Compl., ECF No. 1);
Serrata v. Aargon Agency, Inc., No.
2:17-cv-01271-GMN-NJK (Serrata Compl., ECF No. 1). On June
21, 2017, the Court issued an omnibus order transferring
these cases to the Consolidated Action. (See Omnibus
Order, ECF No. 80).
filed the instant Motions to Dismiss in March and May of
2017. (See ECF Nos. 48, 52, 56, 64, 81, 82, 83, 84).
is appropriate under Rule 12(b)(6) where a pleader fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). A pleading must give fair notice of a legally
cognizable claim and the grounds on which it rests, and
although a court must take all factual allegations as true,
legal conclusions couched as a factual allegations are
insufficient. Twombly, 550 U.S. at 555. Accordingly,
Rule 12(b)(6) requires “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. This standard “asks for more than a sheer
possibility that a defendant has acted unlawfully.”
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion.” Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896
F.2d 1542, 1555 n.19 (9th Cir. 1990). “However,
material which is properly submitted as part of the complaint
may be considered.” Id. Similarly,
“documents whose contents are alleged in a complaint
and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered in
ruling on a Rule 12(b)(6) motion to dismiss” without
converting the motion to dismiss into a motion for summary
judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th
Cir. 1994). On a motion to dismiss, a court may also take
judicial notice of “matters of public record.”
Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282
(9th Cir. 1986). Otherwise, if a court considers materials
outside of the pleadings, the motion to dismiss is converted
into a motion for summary judgment. Fed.R.Civ.P. 12(d).
court grants a motion to dismiss for failure to state a
claim, leave to amend should be granted unless it is clear
that the deficiencies of the complaint cannot be cured by
amendment. DeSoto v. Yellow Freight Sys., Inc., 957
F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the
court should “freely” give leave to amend
“when justice so requires, ” and in the absence
of a reason such as “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.” Foman
v. Davis, 371 U.S. 178, 182 (1962).
of Plaintiffs' Complaints, Plaintiffs allege the
following causes of action: (1) violations of the FDCPA; (2)
abuse of process; and (3) violations of the Nevada Deceptive
Trade Practices Act, Nevada Revised Statutes
(“NRS”) § 598 (“NDTPA”).
(Landeros Compl. 3:24-5:21). Landeros, the Hegners, and Smith
also assert a claim for civil conspiracy. (Id.
5:24-6:1). The Court will address each claim in turn.