Marcotte v. General Electric Capital Services, Inc., No. 3:2008cv01766 - Document 61 (S.D. Cal. 2010)
Court Description: ORDER granting 54 Motion for Judgment on the Pleadings and denying 60 Ex Parte Motion to Amend the Scheduling Order as Moot. The First Amended Complaint is Dismissed without prejudice in its entirety as to all Defendants. Plaintiff may file a Second Amended Complaint within fourteen days of the issuance of this Order. Signed by Judge Barry Ted Moskowitz on 4/20/10. (All non-registered users served via U.S. Mail Service)(lao)
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Marcotte v. General Electric Capital Services, Inc. Doc. 61 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 PHILLIP MARCOTTE, Case No. 08cv1766 BTM (WMc) 13 Plaintiff, ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS v. 14 15 GENERAL ELECTRIC CAPITAL SERVICES, INC., Defendant. 16 17 Defendant GE Money Bank, FSB (“GEMB”) has filed a Motion for Judgment on the 18 Pleadings [Doc. 54]. Plaintiff has also filed an Ex-Parte Motion to Amend the Scheduling 19 Order [Doc. 60]. For the following reasons, the Court GRANTS Defendant’s Motion for 20 Judgment on the Pleadings and DENIES as moot Plaintiff’s Ex-Parte Motion.. 21 22 I. BACKGROUND1 23 Plaintiff allegedly owes Defendants2 a consumer debt. In early 2008, Plaintiff retained 24 the Doan Law Firm to help him resolve his debts and file for bankruptcy. The Doan Firm sent 25 26 27 1 The facts recited here are only the allegations in the Complaint and are not the Court’s factual findings. 2 28 The parties dispute whether GEMB or General Electric Capital Services, Inc. (“GECS”) is the proper defendant in this matter. For purposes of this order, the Court refers to both Defendants and declines to decide the proper Defendant in this action. 1 08cv1766 BTM (WMc) Dockets.Justia.com 1 Defendants a letter in January 2008, telling Defendants that the firm represented Plaintiff and 2 to send all future communications to the firm. But in April and May of 2008, Defendants sent 3 Plaintiff two billing statements. Plaintiff claims that by sending these two statements, 4 Defendants violated the California Rosenthal Fair Debt Collection Practices Act (“CFDCPA”), 5 which prohibits certain communications by creditors to debtors represented by counsel. 6 7 II. LEGAL STANDARD 8 The same standard governs both Rule 12(c) motions for judgment on the pleadings 9 and Rule 12(b)(6) motions to dismiss. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 10 1192 (9th Cir. 1989). When reviewing a motion to dismiss, the allegations of material fact 11 in plaintiff’s complaint are taken as true and construed in the light most favorable to the 12 plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). But 13 only factual allegations must be accepted as true—not legal conclusions. Ashcroft v. Iqbal, 14 129 S.Ct. 1937, 1949 (2009). “Threadbare recitals of the elements of a cause of action, 15 supported by mere conclusory statements, do not suffice.” Id. Although detailed factual 16 allegations are not required, the factual allegations ”must be enough to raise a right to relief 17 above the speculative level.” Twombly, 550 U.S. at 555. Furthermore, “only a complaint that 18 states a plausible claim for relief survives a motion to dismiss.” Iqbal, 129 S.Ct. at 1949. 19 20 III. DISCUSSION 21 22 A. The Court Has Jurisdiction Over This Suit 23 Although neither party has raised this issue, the Court sua sponte addresses whether 24 it has subject-matter jurisdiction to hear this dispute and holds that it does. The Court raises 25 the issue because this is a diversity action and Plaintiff, in his First Amended Complaint, 26 states that the amount in controversy is $12,514.00. This is well below the $75,000 amount 27 in controversy required by 28 U.S.C. § 1332(a). But because this case was initially filed in 28 state court and later removed by Defendant, “jurisdiction must be analyzed on the basis of 2 08cv1766 BTM (WMc) 1 the pleadings filed at the time of removal without reference to subsequent amendments.” 2 Sparta Surgical Corp. v. Nat’l Ass’n of Securities Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 3 1998) (citing Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1488 (10th Cir. 1991)). Here, 4 at the time of removal the complaint demanded $79,154.00, plus attorney fees and costs. 5 Thus, the Court is satisfied it has jurisdiction over this case. 6 7 B. Billing Statements Are Exempted From Liability Under the CFDCPA 8 Plaintiff alleges three causes of action based on Defendants’ mailing of two billing 9 statements to Plaintiff. The three causes of action arise under the CFDCPA, California Civil 10 Code § 1788.17. Section 1788.17 incorporates by reference certain provisions of the Fair 11 Debt Collection Practices Act (“FDCPA”), a federal law which, like the CFDCPA, also 12 regulates debt collectors. The three federal provisions that Plaintiff references—15 U.S.C. 13 §§ 1692b(6), 1692c(a)(2), and 1692c(c)—generally prohibit any communications from a debt 14 collector once the debt collector knows the consumer has an attorney or once the consumer 15 requests in writing that the debt collector cease communications. 16 GEMB argues that all three causes of action fail to state a claim. GEMB first argues 17 that the two billing statements it sent to Plaintiff should be carved out from the general 18 prohibition against communicating with a represented debtor. For support, GEMB points to 19 § 1788.14(c) of the CFDCPA, which prohibits any communications—except for “statements 20 of account”—from a debt collector to a represented debtor. Cal. Civ. Code § 1788.14(c) (“No 21 debt collector shall . . . [i]nitiat[e] communications, other than statements of account, with the 22 debtor with regard to the consumer debt, when the debt collector has been previously notified 23 in writing by the debtor's attorney that the debtor is represented by such attorney . . . .”) 24 (emphasis added). Section 1788.14(c) thus carves out billing statements from the list of 25 prohibited communications and explicitly permits debt collectors to send “statements of 26 account.” Id. 27 But Plaintiff here does not proceed under § 1788.14(c). Instead, Plaintiff proceeds 28 under § 1788.17 of the CFDCPA. This section incorporates by reference parallel federal 3 08cv1766 BTM (WMc) 1 provisions of the Fair Debt Collection Practices Act (“FDCPA”), which also prohibit certain 2 communications by debt collectors to represented debtors. Cal. Civ. Code § 1788.17 3 (“[E]very debt collector . . . shall comply with the provisions of Sections 1692b to 1692j” of 4 Title 15 of the United States Code.). But those incorporated federal provisions prohibit all 5 communications from debt collectors; they do not carve out billing statements. See 15 6 U.S.C. §§ 1692b(6), 1692c(a)(2), 1692c(c). Thus, § 1788.14(c) of the state statute permits 7 debt collectors to send billing statements, while § 1788.17 and the related federal provisions 8 do not. Based on this inconsistency, GEMB argues that the Court should harmonize these 9 provisions by applying the exception for billing statements to both sections. 10 GEMB has a good explanation for why billing statements are exempted under one 11 provision but not the other. The Truth In Lending Act (“TILA”) governs credit-card companies 12 like Defendants here. TILA requires all credit-card companies to send out monthly billing 13 statements. 15 U.S.C. § 1637(b). And although another federal law, the FDCPA, prohibits 14 debt collectors from sending billing statements to represented debtors, the FDCPA’s 15 definition of debt collectors does not include creditors collecting money on their own behalf. 16 15 U.S.C. § 1692a(6)(A). The FDCPA only applies to third-party debt collectors. Id. Thus, 17 when a credit-card company sends out a monthly billing statement, as TILA requires, it does 18 not violate the FDCPA’s prohibitions against communicating with the debtor because the 19 FDCPA does not apply to it. A carve out for billing statements in the FDCPA is therefore 20 unnecessary. 21 A carve out for billing statements under the state law, however, is necessary. This is 22 because the CFDCPA defines debt collectors to include both third-party collectors and credit- 23 card companies collecting on their own behalf, like Defendants. Apparently in recognition 24 of TILA’s requirement that credit-card companies issue periodic billing statements, the 25 CFDCPA carves out billing statements from its list of prohibited communications. Cal. Civ. 26 Code § 1788.14(c). Thus, setting aside § 1788.17 for the moment, a credit-card company 27 can send billing statements without consequence because the FDCPA’s prohibitions do not 28 apply to it and because the CFDCPA, which does apply, carves out billing statements. 4 08cv1766 BTM (WMc) 1 Section 1788.17 complicates matters. The section was not a part of the original 2 CFDCPA; the California legislature added it in 1999. 1999 Cal. Legis. Serv. 319 (West). 3 Section 1788.17 makes debt collectors liable under the CFDCPA for violations of federal law 4 by incorporating, without modification, the federal provisions prohibiting debt collectors from 5 making any communications with represented debtors. Cal. Civ. Code § 1788.17. As 6 discussed above, those federal provisions lack a carve out for billing statements. And 7 therefore, when read in isolation, the plain text of § 1788.17 and the related federal 8 provisions make Defendants liable for sending billing statements to Plaintiff. 9 The Court, however, does not read these statutes in isolation; it must look to their 10 statutory structure to interpret their meaning. See, e.g., Dep’t of Navy v. Egan, 484 U.S. 518, 11 525 (1988) (reviewing statutory structure to determine administrative appellate board’s 12 authority). The statutory structure here includes the requirement that credit-card companies 13 send billing statements to their customers. See 15 U.S.C. § 1637(b). Even though California 14 Civil Code § 1788.17 only adopts specified federal provisions related to debt collectors, those 15 provisions must still be read and construed within their statutory context. In other words, by 16 adopting the specific federal provisions, the state law also adopts their structure. Thus, in 17 light of that structure, § 1788.17 should not be interpreted as prohibiting the mailing of billing 18 statements. 19 Moreover, as mentioned above, § 1788.17 was enacted after § 1788.14(c). The later- 20 enacted § 1788.17 may arguably effect a repeal by implication of the exception for billing 21 statements in § 1788.14(c). However, as GEMB correctly points out, “absent a clearly 22 expressed congressional intention,” repeals by implication are disfavored. Branch v. Smith, 23 538 U.S. 254, 273 (2003). California law has an equally strong, if not stronger, presumption 24 against implied repeals: “[A]n implied repeal should not be found unless the later statute 25 gives “undebatable evidence” of its intent to supersede the earlier statute,” and “courts are 26 bound, if possible, to maintain the integrity of both statutes . . . .” In re Estate of Will, 170 27 Cal. App. 4th 902, 907 (2009) (citing Western Oil & Gas Ass’n v. Monterey Bay Unified Air 28 Pollution Control Dist., 49 Cal. 3d 408, 419 (1989)). The Court’s task, therefore, is to 5 08cv1766 BTM (WMc) 1 determine whether the California Legislature clearly expressed an intent to repeal the billing- 2 statement exception in § 1788.14(c). 3 The Court finds no evidence of such an intent. The bill adding § 1788.17 explains that 4 “[e]xisting law prohibits certain actions by debt collectors in connection with the collection of 5 consumer debts. This bill would also require debt collectors to comply with specified 6 provisions of federal law in connection with the collection of consumer debts, except as 7 specified.” 1999 Cal. Legis. Serv. 319 (West). The bill says nothing more and does not refer 8 to billing statements. 9 Plaintiff likewise does not cite any evidence showing an intent to repeal. Instead, 10 Plaintiff repeatedly argues that § 1788.17 and the related federal provisions do not have an 11 exception for billing statements. This is obvious and misses the point. The question is 12 whether the California Legislature intended to repeal the exception in § 1788.14(c), and the 13 answer appears to be no. 14 Where there is no clear expression of legisliative intent to repeal a statute, “courts are 15 bound, if possible, to maintain the integrity of both statutes.” Estate of Will, 170 Cal. App. 4th 16 at 907; see also United States v. Maes, 546 F.3d 1066, 1069 (9th Cir. 2008) (“Where there 17 are two acts upon the same subject, effect should be given to both if possible.”). Here, the 18 Court can harmonize the two statutes by applying the billing-statement exception in § 19 1788.14(c) to § 1788.17 and its related federal provisions. This result avoids the unintended 20 implied repeal and gives effect to the California legislature’s intent to carve out billing 21 statements from liability under the CFDCPA. The Court therefore holds that debt collectors, 22 who are collecting money on their own behalf, may send billing statements to debtors without 23 violating California Civil Code § 1788.17. 24 25 C. A Prohibition Against Sending Billing Statements Would Conflict With Federal Law 26 There is another basis for the Court’s holding. If the Court were to apply § 1788.17 27 to preclude sending billing statements by a credit-card company to its customer, the statute 28 would conflict with federal law and be preempted. The Court is obligated to construe a 6 08cv1766 BTM (WMc) 1 statute in such a way to avoid a construction that results in invalidity. See Pac. Gas & Elec. 2 v. County of Stanislaus, 16 Cal. 4th 1143, 1152 (1997) (court must “adopt construction that 3 best harmonizes the statute internally and with related statutes”). When state and federal 4 law impose conflicting requirements, the federal law preempts the state law. Here, if 5 § 1788.17 is construed as a prohibition against sending billing statements, it would conflict 6 with TILA’s express requirement that credit-card companies issue periodic billing statements 7 to their customers. 8 TILA and Regulation Z require companies that provide open-ended credit to “furnish 9 the consumer with a periodic [billing] statement . . .” if the consumer has a balance on the 10 account. 12 C.F.R. § 226.7; see also 15 U.S.C. § 1637(b). There are no exceptions. See 11 §§ 226.7, 1636(b). This requirement directly conflicts with any interpretation that § 1788.17 12 prohibits the sending of billing statements by a credit-card company to a represented debtor. 13 Federal law preempts the conflicting state law. Indeed, both TILA and Regulation Z 14 have provisions expressly preempting any conflicting state laws. 15 U.S.C. § 1610(a)(1) 15 (inconsistent state laws preempted to the extent of the inconsistency); 12 C.F.R. § 226.28 16 (same). Federal common law also has a similar preemption doctrine. Cipollone v. Liggett 17 Group, Inc., 505 U.S. 504, 516 (1992) (“In the absence of an express congressional 18 command, state law is pre-empted if that law actually conflicts with federal law.”). “[W]here 19 ‘compliance with both federal and state regulations is a physical impossibility,” the state law 20 is preempted. Ting v. AT&T, 319 F.3d 1126, 1136 (9th Cir. 2003) (citing Florida Lime & 21 Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963)). 22 Here, compliance with Plaintiff’s interpretation of § 1788.17 and federal regulations 23 is a physical impossibility. Obviously, Defendants cannot send billing statements to Plaintiff 24 as required by TILA and Regulation Z, and also refrain from sending them under § 1788.17. 25 Thus, Plaintiff’s interpretation would result in the partial invalidity of § 1788.17. But the 26 Court’s construction that § 1788.17 is modified by § 1788.14(c) does not result in any 27 invalidity to § 1788.17. Given the two possible constructions, the Court is bound to take the 28 construction that does not result in § 1788.17's invalidity. See Pac. Gas & Elec. 16 Cal. 4th 7 08cv1766 BTM (WMc) 1 at 1152. 2 Plaintiff believes there is a way to avoid preemption and give effect to both laws. 3 Plaintiff suggests that GEMB could send the statements to Plaintiff’s lawyer. That way, 4 Plaintiff could comply with TILA and Regulation Z’s requirement to send billing statements 5 and with § 1788.17's purported prohibition. 6 Plaintiff’s proposal, however, is unworkable. Regulation Z requires that a creditor 7 send statements to the “consumer.” 12 C.F.R. § 226.7. And it defines a consumer as a 8 “natural person.” 12 C.F.R. § 226.2(a)(8), (a)(11); Hess v. Citibank, (S.D.), N.A., 459 F.3d 9 837, 843–44 (8th Cir. 2006) (holding billing statement requirement under TILA and 10 Regulation Z applies only to natural persons, not to organizations). Thus, billing statements 11 must be sent to natural persons, like Plaintiff, and not to organizations, like Plaintiff’s law firm. 12 Plaintiff rests must of his argument on the Official Staff Commentary (“OSC”) to 13 Regulation Z. It states that “[a]n attorney and his or her client are considered to be the same 14 person for purposes of this regulation when the attorney is acting within the scope of the 15 attorney-client relationship with regard to a particular transaction.” 12 C.F.R. Part 226, Supp. 16 I, OSC, 226.2(a)(22)–2 (emphasis added). Although at first blush this appears to support 17 Plaintiff’s argument, there are two reasons why it does not. 18 First, “[t]he TILA, like Regulation Z, also sets up a clear distinction between ‘persons,’ 19 which may include an estate, and ‘natural persons.’” Hess, 459 F.3d at 843 (citing 15 U.S.C. 20 § 1602(c), (d)). And as discussed above, a creditor must send a billing statement to a natural 21 person. 12 C.F.R. § 226.7 (periodic statement must be sent to “consumer”); 12 C.F.R. § 22 226.2(a)(11) (consumer means cardholder or “natural person”); 12 C.F.R. § 226.2(a)(8) 23 (cardholder means “natural person”). The OSC states that “[a]n attorney and his or her client 24 are considered to be the same person.” It does not say that an attorney and his client are 25 to be considered the same natural person. Accordingly, the OSC does not apply to the 26 requirement to send billing statements. 27 Second, even assuming a lawyer and the lawyer’s client may be considered the same 28 natural person, requiring credit-card companies to send statements to law firms would violate 8 08cv1766 BTM (WMc) 1 Regulation Z in other respects. Focusing on the latter part of the OSC, a lawyer and the 2 client are only the same person “when the attorney is acting within the scope of the attorney- 3 client relationship with regard to a particular transaction.” 12 C.F.R. Part 226, Supp. I, OSC, 4 226.2(a)(22)–2 (emphasis added). Thus, whether a person and his lawyer are the same for 5 purposes of Regulation Z depends on whether the lawyer represents the person on a 6 “particular transaction.” Id. But the distinguishing feature of open-ended credit plans like the 7 one at issue here are repeated transactions—not a single transaction. See 15 U.S.C. § 8 1602(i); 12 C.F.R 226.2(a)(20)(i). Naturally, billing statements from credit-card companies 9 generally contain several transactions. A credit-card company should not have to determine 10 whether the consumer is represented with respect to all, some, or none of those transactions 11 and issue separate billing statements to the lawyer and to the consumer. 12 Moreover, GEMB argues convincingly that sending billing statements to law firms 13 instead of consumers would reduce consumer protections. Consumers have only sixty days 14 to contest billing errors and fraudulent charges, and any delay could foreclose a consumer’s 15 ability to resolve those errors. 15 U.S.C. § 1666. Not only would sending the statements 16 directly to law firms undercut a consumer’s ability to timely contest charges, but prudent law 17 firms would simply forward these statements to their clients as soon as possible. Thus, even 18 under Plaintiff’s interpretation, consumers with prudent lawyers would regularly receive billing 19 statements. 20 statements to law firms so that the law firms can forward them to the consumer, but as 21 discussed above, it is also an incorrect interpretation of the law. Not only is it nonsensical to require credit-card companies to send the 22 Lastly, Plaintiff’s reliance on Castellanos v. JP Morgan Chase & Co., 2009 WL 23 1833981 (S.D. Cal. 2009) and James v. Chase Bank USA, N.A., No. 08cv2220 (S.D. Cal. 24 September 29, 2009) is misplaced. First, neither case is binding precedent on this Court. 25 Second, neither case addresses the implied repeal or preemption arguments discussed here. 26 In summary, the Court concludes that billing statements are exempted under 27 § 1788.17 for three reasons. First, § 1788.17 incorporate specific federal statutes, but those 28 statutes must be read in the context of a statutory scheme that permits and requires credit9 08cv1766 BTM (WMc) 1 card companies to send billing statements. Second, § 1788.17 is modified by 1788.14(c). 2 Any other interpretation would result in an implied repeal—a result disfavored by both 3 California and federal law. And third, Plaintiff’s construction would result in the preemption 4 and partial invalidity of § 1788.17, as explained above. 5 6 D. The Documents at Issue Here Are Billing Statements 7 The Court must also decide whether the documents Defendants sent to Plaintiff are, 8 in fact, billing statements. As an initial matter, the parties dispute whether the Court can 9 decide this issue on a motion to dismiss. The Court finds that it can. 10 Whether the content of a written communication violates the FDCPA is a question of 11 law. See Terran v. Kaplan, 109 F.3d 1428, 1431–32 (9th Cir. 1997) (concluding “that the 12 determination of whether a collection letter violates section 1692g [of the FDCPA] is a 13 question of law“). Plaintiff has attached the two billing statements at issue to his Complaint 14 and the Court may review them to determine whether they are billing statements as defined 15 by the relevant statutes. 16 Plaintiff refers to the documents as billing statements in his Complaint. (Compl. ¶ 36, 17 37, 39, 49.) But even without this admission, the contents of the documents reveal that they 18 are standard billing statements. The Court discusses the contents below. 19 The two documents are “statements of account” under California Civil Code § 20 1788.14(c). California Civil Code § 1810.3 states what should be included in a statement of 21 account: (1) the outstanding balance, (2) transactions, (3) finance charges, (4) the interest 22 rate and charges, and the (5) the billing cycle, among other things. The billing statements 23 at issue here contain all of this information and nothing else that would change the billing 24 statements into demand letters or efforts at debt collection. The statements do not state that 25 any amounts are past due, and there is no indication that the documents are aimed at debt 26 collection. Instead, one states that no payment is due, and the other states that a standard 27 minimum payment of $118 is due. (See Compl. Exs. B, C.) 28 Third, the two documents are “periodic statement[s]” under TILA and Regulation Z. 10 08cv1766 BTM (WMc) 1 See 12 C.F.R. § 226.7(b) (requiring ; 15 U.S.C. § 1637(b) (creditors must send “statement” 2 to consumer). Under federal law, periodic statements require information substantially 3 similar to that under state law: (1) the outstanding balance; (2) transactions; (3) credits; (4) 4 interest rates, charges, and fees; (5) a grace period; (6) and the due date, among other 5 things. See 12 C.F.R. § 226.7(b). Again, the billing statements here contain all of this 6 information and nothing else that would change the billing statements into demand letters or 7 efforts at debt collection. 8 In short, there is nothing that would lead the Court to believe that these two 9 documents, which the Plaintiff refers to as billing statements, are anything but statements of 10 account under California law and periodic statements under federal law. Because the 11 documents at issue here are billing statements, and based on the reasoning in the preceding 12 sections, Defendants cannot be held liable for issuing them. 13 14 E. Plaintiff’s Belief That Other Violations Occurred 15 In his opposition brief, Plaintiff “firmly asserts” that discovery will reveal more 16 violations. Plaintiff’s assertion is inconsequential because only allegations of fact can 17 support a cause of action. See Iqbal, 129 S.Ct. at 1949. Plaintiff has only asserted two 18 communications by Defendants—the billing statements—and these are not actionable. 19 Accordingly, Plaintiff’s First Amended Complaint fails to state a cause of action. 20 IV. CONCLUSION 21 22 For the foregoing reasons, GEMB’s Motion for Judgment on the Pleadings is 23 GRANTED, and the First Amended Complaint is DISMISSED without prejudice in its 24 entirety as to all Defendants.3 Plaintiff may file a Second Amended Complaint within fourteen 25 days of the issuance of this order. The Second Amended Complaint, if any, must allege 26 27 28 3 Only Defendant GEMB moved to dismiss the Complaint. GECS did not join in the motion. Nevertheless, the Complaint fails to state a claim against either Defendant because the billing statements are not actionable. Defendants are advised that in the future should they want both Defendants dismissed, both Defendants must so move. 11 08cv1766 BTM (WMc) 1 actionable communications (i.e., not the sending of billing statements) or facts supporting 2 some other cause of action. Vague allegations of additional wrongdoing will not suffice. 3 Plaintiff’s Ex-Parte Motion to Amend the Scheduling Order [Doc. 60] is DENIED as 4 moot. 5 IT IS SO ORDERED. 6 DATED: April 20, 2010 7 8 Honorable Barry Ted Moskowitz United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 08cv1766 BTM (WMc)
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