Montgomery v. PNC Bank National Association
Filing
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Order by Hon. Samuel Conti granting 6 Motion to Dismiss.(sclc1, COURT STAFF) (Filed on 8/6/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LARRY MONTGOMERY,
) Case No. C-12-2453 SC
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Plaintiff,
) ORDER GRANTING MOTION TO
) DIMISS
v.
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PNC BANK, NATIONAL ASSOCIATION,
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and DOES 1 through 100, inclusive, )
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Defendants.
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United States District Court
For the Northern District of California
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I.
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INTRODUCTION
Plaintiff Larry Montgomery ("Montgomery") brings this action
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against Defendant PNC Bank, National Association ("PNC") for
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improper credit reporting.
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PNC improperly reported his account as delinquent even though the
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bank was aware that Montgomery's debts had been discharged through
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bankruptcy.
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17.
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of Civil Procedure 12(b)(6).
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fully briefed, ECF Nos. 11, ("Opp'n"), 16 ("Reply"), and the Court
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finds the matter appropriate for determination without oral
Specifically, Montgomery alleges that
ECF No. 1 ("Not. of Removal") Ex. A ("Compl.") ¶¶ 15-
PNC now moves to dismiss the action pursuant to Federal Rule
ECF No. 6 ("MTD").1
The motion is
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PNC initially filed its motion before Chief Magistrate Judge
Maria-Elena James. ECF No. 6. PNC later declined to proceed
before a magistrate judge, ECF No. 7, and the case was re-assigned
to the undersigned, ECF No. 9. PNC then re-noticed its motion.
ECF No. 12.
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argument, see Civ. L. Rule 7-1(b).
As detailed herein, PNC's
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motion to dismiss is GRANTED and this action is DISMISSED WITH
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PREJUDICE.
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II.
BACKGROUND
Montgomery filed a voluntary Chapter 7 bankruptcy petition on
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March 8, 2010.
Compl. ¶ 12.
As a result of the bankruptcy
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proceedings that followed, Montgomery was granted a discharge of
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all dischargeable debts pursuant to 11 U.S.C. § 727.
Id. ¶ 13.
United States District Court
For the Northern District of California
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Montgomery alleges that this discharge included his $993,750 debt
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to PNC.
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to the credit reporting agency Experian, contesting the inclusion
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of certain information in his credit profile.
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("Experian Ltr.").
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8530, the letter stated: "This account was included in my
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bankruptcy.
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lates, charge-offs, and should be reflecting a 0 balance.
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these delinquent items now."
Id. ¶¶ 13, 15.
On April 7, 2011, Montgomery sent a letter
Id. ¶ 16, Ex. A
Referring to Montgomery's PNC account ending
This account should not be reporting a high balance,
Remove
Experian Ltr.
Montgomery alleges that, despite his letter to Experian, PNC
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continued to improperly report his credit and also failed to report
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to Experian that his account information was disputed.
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17.
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credit report, which is attached to the Complaint as Exhibit C.
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Id.
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the credit report describes the "Recent balance" and "Monthly
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Payment" as "Not reported."
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"Account transferred to another lender," and "Status: Transferred,
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closed."
Compl. ¶
Montgomery specifically points to a May 28, 2011 Experian
With respect to the PNC account identified in the Complaint,
Id.
Id. Ex. C.
It further states:
The document does not report a "high balance,"
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"lates," or "charge-offs" for the account.
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that the account is delinquent.
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another PNC account, which is described as "Discharged through
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Bankruptcy Chapter 7."
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correct his credit report despite being noticed of his bankruptcy
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and re-noticed of the inaccurate reporting.
Id.
Nor does it indicate
The credit report also refers to
Montgomery alleges that PNC refuses to
Compl. ¶ 18.
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On April 12, 2012, Montgomery filed the instant action in the
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Superior Court of the State of California in and for the County of
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Alameda.
The case was subsequently removed to federal court.
United States District Court
For the Northern District of California
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Montgomery asserts nine causes of action: (1) violation of the Fair
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Credit Reporting Act, 15 U.S.C. § 1681s-2(b); (2) violation of the
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California Song-Beverly Credit Card Act, Cal. Civ. Code § 1747, et
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seq.; (3) violation of the Consumer Credit Reporting Agencies Act,
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Cal. Civ. Code § 1785.25(a); (4) violation of the California Unfair
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Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.; (5)
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libel; (6) intentional infliction of emotional distress; (7)
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negligent infliction of emotional distress; (8) deceit; and (9)
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constructive fraud.
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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, 129 S. Ct. 1937, 1950 (2009).
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court must accept as true all of the allegations contained in a
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complaint is inapplicable to legal conclusions.
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recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice."
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Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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in a complaint must be both "sufficiently detailed to give fair
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notice to the opposing party of the nature of the claim so that the
However, "the tenet that a
Threadbare
Id. (citing Bell Atl.
The allegations made
United States District Court
For the Northern District of California
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party may effectively defend against it" and "sufficiently
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plausible" such that "it is not unfair to require the opposing
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party to be subjected to the expense of discovery."
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633 F.3d 1191, 1204 (9th Cir. 2011).
Starr v. Baca,
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IV.
DISCUSSION
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Each of Montgomery's claims is predicated on his allegation
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that PNC falsely reported that he was delinquent on his PNC loan
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payments.
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his pleadings and his opposition to PNC's motion to dismiss,
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Montgomery relies on Exhibit C to the Complaint as evidence of this
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alleged false reporting.
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Exhibit C, a May 28, 2011 Experian credit report, does not report a
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delinquency on the PNC account identified in the Complaint.
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Rather, Exhibit C describes that account as follows: "Recent
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balance: Not reported," and "Status: Transferred, closed."2
See Compl. ¶¶ 30-31, 40, 48, 63, 68, 77, 81, 86, 91.
See id. ¶ 17; Opp'n at 10.
In
However,
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To the extent that Montgomery intends to allege that PNC falsely
reported the status of his other PNC account, his allegations are
also contradicted by Exhibit C. The Experian credit report
describes this other account as "[d]ischarged through Bankruptcy
Chapter 7." Compl. Ex. C.
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This glaring inconsistency is fatal to Montgomery's claims.
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As Montgomery argues in his opposition to the motion to dismiss:
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"Documents attached to the complaint may . . . be considered by the
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court in determining the sufficiency of Plaintiff's complaint."
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Opp'n at 7 (citing Parks School of Bus., Inc. v. Symington, 51 F.3d
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1480, 1484 (9th Cir. 1995)).
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contradicts allegations in a complaint to which it is attached, the
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exhibit trumps the allegations."
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Prof'l Regulation, 300 F.3d 750, 754 (7th Cir. 2002) (emphasis in
Indeed, "when a written instrument
Thompson v. Illinois Dept. of
United States District Court
For the Northern District of California
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the original).
Despite the fact that this inconsistency was raised
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in PNC's moving papers, see MTD at 3, Montgomery does not
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coherently address the point in his opposition.
Accordingly, the Court finds that Montgomery cannot state a
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plausible claim for relief because his allegations are directly
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contradicted by an exhibit attached to his Complaint.
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V.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant PNC
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Bank's motion to dismiss.
Plaintiff Larry Montgomery's complaint
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is dismissed WITH PREJUDICE.
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IT IS SO ORDERED.
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Dated: August 6, 2012
UNITED STATES DISTRICT JUDGE
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