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Douglas John Fitzgerald v. Pncbank

April 21, 2011


The opinion of the court was delivered by: B. Lynn Winmill Chief Judge U.S. District Court



Before the Court is Defendants PNC Bank and PNC Mortgage's Motion to Dismiss (Dkt. 10). Plaintiff Douglas John Fitzgerald alleges that Defendants PNC Bank and PNC Mortgage (collectively, "PNC") violated the Fair Debt Collection Practices Act, 15 U.S.C § 1692, et seq. and the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. by falsely representing that Fitzgerald owes a debt or obligation to Defendants. The Motion is fully briefed, and the Court has concluded that this matter is appropriate for determination without oral argument. For the reasons stated below, Defendants' Motion is granted.


On July 26, 2006, Terry Caminiti executed a Deed of Trust on property located in Kuna, Idaho to secure a $122,0000 loan. National City Bank was the lender and beneficiary of the Deed of Trust. In December 2008, PNC acquired National City and, presumably, National City's interest in Caminiti's Deed of Trust. In February 2010, PNC sent Caminiti a Notice of Default notifying her that PNC intended to sell the property to satisfy the debt because Caminiti had stopped making monthly payments. Notice of Default, Dkt. 14-2 at 20.

On March 22, 2010, Terri L. Caminiti purported to deed all existing rights, title, and interest in the Kuna property to Moscow Combined Investments. Assignment, Dkt. 14-2 at 22. According to the Assignment, Plaintiff Douglas John Fitzgerald is affiliated with Moscow Combined Investments. As the supposed assignee of Ms Caminiti's interest in the Kuna property, Fitzgerald seeks "to stand in her shoes."

Fitzgerald denies that he or Caminiti entered into any sort of loan agreement or business relationship with PNC.*fn2 Fitzgerald sent a letter disputing the debt on June 21, 2010, but PNC failed to "verify" or "validate" the debt. Instead, according to Fitzgerald, PNC persisted in its "collection" efforts and continued to make false reports to the credit agencies "alleging delinquent credit payments." Compl. ¶¶ 6-10. Fitzgerald further alleges that PNC never informed the major credit report agencies that the debt was in dispute. Based on this conduct, Fitzgerald argues that PNC violated (1) the Fair Debt Collections Practices Act by failing to "verify" or "validate" the alleged debt; and (2) the Fair Credit Report Act by willfully failing to inform the major credit reporting agencies that the debt is in dispute, even after receiving notice that Fitzgerald disputed the debt.


Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964 (2007). While a complaint attacked by a Rule 12(b)(6) motion to dismiss "does not need detailed factual allegations," it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. 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." Id. 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. at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " Id. at 557.

In a more recent case, the Supreme Court identified two "working principles" that underlie Twombly. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Id. "Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1950. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Providing too much in the complaint may also be fatal to a plaintiff. Dismissal may be appropriate when the plaintiff has included sufficient allegations disclosing some absolute defense or bar to recovery. See Weisbuch v. County of L.A., 119 F.3d 778, 783, n. 1 (9th Cir. 1997) (stating that "[i]f the pleadings establish facts compelling a decision one way, that is as good as if depositions and other . . . evidence on summary judgment establishes the identical facts").

A dismissal without leave to amend is improper unless it is beyond doubt that the complaint "could not be saved by any amendment." Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009)(issued 2 months after Iqbal).*fn3 The Ninth Circuit has held that "in dismissals for failure to state a claim, 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 and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether plaintiff will prevail but whether he "is entitled to offer evidence to support the claims." Diaz v. Int'l Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007)(citations omitted).

Under Rule 12(b)(6), the Court may consider matters that are subject to judicial notice. Mullis v. United States Bank, 828 F.2d 1385, 1388 (9th Cir. 1987). The Court may take judicial notice "of the records of state agencies and other undisputed matters of public record" without transforming the motions to dismiss into motions for summary judgment. Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866 (9th Cir. 2004). The Court may also examine documents referred to in the complaint, although not attached thereto, ...

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