Free Memorandum in Opposition - District Court of California - California

Case 5:08-cv-03318-PVT

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Filed 08/26/2008

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CHRISTOPHER ASHWORTH (SBN 54889) SILICON VALLEY LAW GROUP A Law Corporation 25 Metro Drive, Suite 600 San Jose, CA 95110 Telephone: (408) 573-5700 Facsimile: (408) 573-5701 Email: [email protected] Attorneys for Plaintiffs

6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE) 10 11 12 13 14 15 16 17 18 Plaintiffs Joseph Salvatore Cala, [Joseph], Lisa Cala, [Lisa] and Alex Cala, [Alex] 19 [collectively "Plaintiffs"] oppose the motion of Defendant Randolph Bush to dismiss in the 20 following premises: 21 1. Bush's argument that "there are no allegations that Bush did anything in 22 connection with the bank levy". The allegations in the complaint are precisely to the contrary. 23 The complaint informs: 24 "[ ¶14] Plaintiffs are informed and believe that Defendants knowingly 25 misinformed the Bank about the true identity of the actual San Francisco 26 judgment debtor. Plaintiffs are further informed that the Defendants 27 intended that, if plaintiffs were too unsophisticated to seek competent legal 28 OPPOSITION TO MOTION TO DISMISS 1 ) ) ) ) Plaintiffs, ) ) vs. ) ) Randolph Bush, an individual and Maynard ) Evans, an individual ) ) Defendants. ) ______________________________________ ) ) ) Joseph Salvatore Cala, an individual; Lisa Cala, an individual; and Alex Cala, an individual, CASE NO.: C 08 03318 PVT OPPOSITION TO MOTION TO DISMISS Date: September 16 Ctrm: Hon Patricia V. Trumbull Time: 10:00

Case 5:08-cv-03318-PVT

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help, Defendants would collect an amount in excess of $60,000. Plaintiffs are further informed and believe that, if plaintiffs proved more sophisticated, that Defendants would offer to "help" straighten out the problem for a substantial fee. Indeed, on the very day that the Plaintiffs were informed by the Bank that their accounts hade been stripped, defendant Bush telephoned the Plaintiffs and offered to `help'". A concert of action between Bush and Evans is sufficiently pled. 2. Bush's jurisdictional argument. Bush claims that the case does not involve a consumer debt and thus does not implicate the Fair Debt Collection practices Act, 15 U.S.C. § 1692, et seq. But the cases say otherwise. Where, as here, there is an attempt to collect a nonexistent debt, the protection of the Act goes beyond "consumers". A case right on point is Dutton v. Wolhar (1981) 809 F. Supp. 1130: "A reading of the plain language of the Act demonstrates that § 1692k does not limit recovery to "consumers." Instead, it imposes liability where a debt collector has failed to comply with the Act with respect to "any person." 15 U.S.C. § 1692k (1988). In addition, none of the sections of the Act before this Court on Dutton's motion for summary judgment limits its proscriptions to "consumers." See15 U.S.C. §§ 1692e(2)(A), e(5), e(10) and e(11) (1988). The legislative history of the FDCPA supports this reading of the Act. As noted by House Report 95-131: This bill also protects people who do not owe money at all. In the collector's zeal, collection effort are often aimed at the wrong person either because of mistaken identity or mistaken facts. This bill will make collectors behave responsibly towards people with whom they deal. Another group of people who do not owe money, but who may be deliberately harassed are the family, employer and neighbors of the consumer. These people are also protected by this ... bill. OPPOSITION TO MOTION TO DISMISS 2

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It was Congress's intent to protect people other than debtors, such as plaintiff Dutton, who are subject to harassment by debt collectors. See also S.Rep. No. 382, 95th Cong. 1st Sess. 4 reprinted in1977 U.S.Code Cong. & Admin.News 1695, 1699 (noting one purpose of Act is to prevent debt collectors from "dunning the wrong person...."); H.R.Rep No. 1202, 94th Cong.2d Sess. 5 ("Certainly a person who has a common name and is being hounded by a debt collector because of the debts of another person deserves the protection this legislation will offer.").
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In West v. Costen, 558 F.Supp. 564 (W.D.Va.1983), the District Court held, at least with respect to an action under § 1692e(2)(A), that a parent who received a letter demanding that her son pay a debt he allegedly owed could recover even though she was not a "consumer" within the meaning of the Act. Id. at 584. The rationale behind the court's decision was that "section 1692e(2)(A) and (B) does not protect only consumers; rather, it is designed to discourage certain debt collection practices." Id. The plaintiffs in this case fall within the ambit of persons protected by the Act. The complaint states a claim for relief. The motion to dismiss on jurisdictional grounds must be denied. 3. Bush's "bona fide error" argument. Assuming that the defendants have made an innocent error, they must assert it as a defense and prove it up. A motion to dismiss is not the proper vehicle for this effort. 4. Conclusion. The motion must be denied. Dated: July 8, 2008 SILICON VALLEY LAW GROUP A Law Corporation By: /s/ Christopher Ashworth CHRISTOPHER ASHWORTH Attorneys for Plaintiffs

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OPPOSITION TO MOTION TO DISMISS 3

Case 5:08-cv-03318-PVT

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