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Goldsmith v. Aargon Collection Agency, Inc.

United States District Court, D. Nevada

March 30, 2018

EUGENE GOLDSMITH, ET AL., Plaintiffs,
v.
AARGON AGENCY, INC., ET AL., Defendants.

          ORDER

          Gloria M. Navarro, Chief Judge United States District Court.

         Pending 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”), [1]Mataese Pili (“Pili”), Michelle Mercado (“Mercado”), Kinika Jackson (“Jackson”), Corina Phillips (“Phillips”), and Dana Serrata (“Serrata”) (collectively “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).

         For the 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.

         I. BACKGROUND

         This 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.

         A. COJ Violations

         In 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. 1).[2] 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. (Id. 2:20-21).

         Plaintiffs 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).

         B. Default Judgment and Writ of Execution Violations

         In 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).

         C. The Consolidated Action

         In 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).

         On May 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).

         Defendants filed the instant Motions to Dismiss in March and May of 2017. (See ECF Nos. 48, 52, 56, 64, 81, 82, 83, 84).

         II. LEGAL STANDARD

         Dismissal 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.” Id.

         “Generally, 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).

         If the 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).

         III. DISCUSSION

         In each 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.

         A. ...


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