United States District Court, W.D. Washington, Tacoma
NICOLE A. QUINTANILLA, Plaintiff,
THE BUREAUS, INC., et al., Defendant.
ORDER GRANTING MOTION TO DISMISS PURSUANT TO RULE
12(B)(6) DKT. #18
B. Leighton United States District Judge.
MATTER is before the Court on Defendants The Bureaus, Inc.
(“TBI”), Bureaus Investment Group Portfolio No.
15, LLC (“BIG 15”), and Bureaus Investment Group
III's (“BIG III”) Motion to Dismiss for
Pursuant to Rule 12(b)(6). Dkt. #18. Plaintiff Nicole A.
Quintanilla's claims challenge a letter sent by counsel
for TBI representing that BIG 15 owns a $1, 807.22 debt owed
by Quintanilla. According to Quintanilla, the documents
provided to verify BIG 15's ownership of the debt were
insufficient authentication. The moving Defendants
(collectively “The Bureaus”) argue that the
documents provided to Quintanilla support BIG 15's
ownership of the debt and Quintanilla is not legally entitled
to additional proof.
Court agrees with the Bureaus and GRANTS their Motion.
unknown time, Quintanilla alleges that “the
Defendants” contacted her either through the mail or by
telephone to attempt to collect a debt originally owned by
Capital One, NA, for charges made on an HSBC retail account.
Quintanilla also apparently became aware that The Bureaus had
furnished information about her debt to a credit bureau. On
October 30, 2018, Quintanilla sent a letter to TBI demanding
authentic proof that they had a valid claim against her. Dkt.
#19 at 8. Her letter identified no legal authority or
specific documents for authentication.
the master servicer for BIG 15, responded on November 6 with
a brief letter stating the open date for the account, the
date of delinquency, the last payment prior to acquisition,
the charge-off balance and date, and the current balance due.
Id. at 11. The letter also contained numerous
attached documents evidencing that the debt in question was
owed by Quintanilla and was transferred to BIG 15. These
documents included a Bill of Sale and Affidavit of Sale
signed by the vice president of Capital One, NA, a
Certificate of Conformity stating that the sale conformed to
Virginia law, an Affidavit of Assignment signed by a Capital
One Services, LLC, employee verifying that Quintanilla's
account was transferred to BIG 15, a copy of a check from
Quintanilla to HSBC Retail Card Services making a payment on
the debt, and copies of Quintanilla's account statements
showing payments and failures to pay. Id. at 12-22.
Quintanilla's account was apparently sold as part of a
pool of debts that Capital One sold to BIG 15.
with this response, Quintanilla had her lawyer, Bruce Clark,
reach out to TBI on November 27. TBI's counsel, Dara
Tarkowski, responded on December 5, with a letter reiterating
that BIG 15 owned the debt in question. Id. at 5-6.
Tarkowski's letter included the November 6 letter and all
of its documentation as attachments. The letter also
characterized Quintanilla's October 30 letter as a
“debt validation request.”
Complaint, Quintanilla claims that the December 5 letter from
Tarkowski misrepresented that Defendants actually own
Quintanilla's debt. Quintanilla alleges that Defendants
failed to produce “any authenticatable
documentation” in response to her inquiries and
characterized the documents attached to the December 5 letter
as “hearsay.” Dkt. #1-1 at 6. The Complaint
asserts more specific issues with the documentation,
including that the Bill of Sale and Affidavit of Sale do not
specifically mention Quintanilla or her account and reference
a “Forward Flow Receivable Sale Agreement”
between Capital One and the BIG 15 that was never produced to
Quintanilla. Although the Affidavit of Assignment does
identify Quintanilla and her account, Quintanilla claims that
this document is not specific enough and is not reliable
because it is not signed by an employee of Capital One, NA.
Notably, Quintanilla does not deny that she owes the relevant
under Fed.R.Civ.P. 12(b)(6) may be based on either the lack
of a cognizable legal theory or the absence of sufficient
facts alleged under a cognizable legal theory. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Cir. 1990). A plaintiff's complaint must allege facts to
state a claim for relief that is plausible on its face.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
claim has “facial plausibility” when the party
seeking relief “pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Although the court must accept as true the Complaint's
well-pled facts, conclusory allegations of law and
unwarranted inferences will not defeat an otherwise proper
12(b)(6) motion to dismiss. Vazquez v. Los Angeles
Cty., 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell
v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
2001). “[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations and footnotes omitted). This requires a plaintiff
to plead “more than an unadorned,
Iqbal, 556 U.S. at 678 (citing id.).
of “fraud or mistake” trigger a heightened
pleading standard under which the plaintiff must “state
with particularity the circumstances constituting fraud or
mistake.” Fed.R.Civ.P. 9(b). This means “the
pleader must state the time, place, and specific content of
the false representations as well as the identities of the
parties to the misrepresentation.” Schreiber
Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393,
1401 (9th Cir. 1986). Sections of the FDCPA that require a
showing of false or misleading communications must be pled
with particularity under Rule 9(b). Cutler ex rel. Jay v.
Sallie Mae, Inc., No. EDCV-13-2142-MWF, 2014 WL 7745878,
at *3 (C.D. Cal. Sept. 9, 2014). RICO claims may also be
subject to Rule 9(b)'s requirements if they involve
fraud. Moore v. Kayport Package Exp., Inc., 885 F.2d
531, 541 (9th Cir. 1989).
12(b)(6) motion, “a district court should grant leave
to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” Cook,
Perkiss & Liehe v. N. Cal. Collection Serv., 911
F.2d 242, 247 (9th Cir. 1990). However, leave to amend should
be denied as futile if “no set of facts can be proved
under the amendment to the pleadings that would constitute a
valid and sufficient claim or defense.” Gaskill v.
Travelers Ins. ...