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Cole v. Cardez Credit Affiliates, LLC

United States District Court, D. Idaho

March 19, 2015

KELLY COLE and VICKY COLE, husband and wife, Plaintiffs,
v.
CARDEZ CREDIT AFFILIATES, LLC, an Idaho limited liability company; WILLIAM R. DALLING, CHARTERED d/b/a Dalling & Dalling; WILLIAM R. DALLING, an individual; and JOHN DOES I-X, individual employees of Cardez Credit Affiliates LLC and William R. Dalling, Chartered Defendants.

MEMORANDUM DECISION AND ORDER RE: DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER RULE 12(b)(6) AND FOR MOTION ON THE PLEADINGS UNDER 12(c) (Docket No. 3) PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS (Docket No. 8)

RONALD E. BUSH, Magistrate Judge.

Now pending before the Court are (1) Defendants' Motion to Dismiss for Failure to State a Claim Under Rule 12(b)(6) and for Motion on the Pleadings Under 12(c) (Docket No. 3), and (2) Plaintiffs' Motion for Judgment on the Pleadings (Docket No. 8). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND[1]

1. Plaintiff Kelly Cole has resided in Adams County, Idaho his entire life; Plaintiff Vicky Cole has resided in Adams County, Idaho since 1982. See Compl., ¶ 15 (Docket No. 1). Together, the Coles have resided at their current address in Adams County since 1992. See id.

2. In December 2002, Vicky Cole allegedly incurred a financial obligation - a credit card debt with First USA Bank - that was primarily for personal, family, or household purchases (the "Debt"). See id. at ¶ 12.

3. Sometime later, the Debt was purchased, consigned, placed, or otherwise transferred to Defendant Cardez Credit Affiliates, LLC ("Cardez"). See id. at ¶ 13. The Debt was then sent to Defendant William R. Dalling, Chartered d/b/a Dalling & Dalling (the "Dalling Law Firm") for collection efforts on Cardez's behalf. See id. at ¶ 14.

4. On April 10, 2006, Cardez (through the Dalling Law Firm and Defendant William R. Dalling ("Dalling")) filed a Complaint against Vicky Cole in the Seventh Judicial District of the State of Idaho, Bonneville County (the "State Court Action"). See id. at ¶ 16. The Coles allege that the Dalling Law Firm and Dalling filed the State Court Action knowing that (1) Vicky Cole did not reside in Bonneville County, Idaho, and (2) the Debt (and related credit card contract) was not incurred or executed in Bonneville County. See id. at ¶¶ 17-18.

5. Plaintiff Vicky Cole appeared pro se (as Defendant) in the State Court Action. See id. at ¶ 19.

6. On June 30, 2006, a Judgment was entered in the State Court Action against Vicky Cole in Bonneville County, Idaho (the "Judgment"). See id. at ¶ 20. On May 12, 2011, the Judgment was renewed by Dalling, also in Bonneville County, Idaho. See id. at ¶ 21.

7. On December 4, 2013, Dalling, through the Dalling Law Firm, submitted an application for a Writ of Execution on the Judgment against Vicky Cole in Bonneville County, Idaho. See id. at ¶ 22. According to the Coles, when Dalling submitted the application for a Writ of Execution and supporting Affidavit, he knew the Coles resided in Adams County, Idaho. See id.

8. On December 9, 2013, a Writ of Execution was issued from Bonneville County, Idaho, in the amount of $32, 123.55. See id. at ¶ 23.

9. On December 16, 2013, Cardez utilized the Writ of Execution, through the Dalling Law Firm and Dalling, to garnish $1, 129.13 from the Coles' U.S. Bank checking account, located in Adams, County Idaho. See id. at ¶ 24.

10. The Coles allege that Defendants' actions violate numerous provisions of the Fair Debt Collections Practices Act (the "FDCPA") and the Idaho Consumer Protection Act (the "ICPA"). See generally id. Specifically, they contend that "Defendants' act of obtaining a Writ of Execution in Bonneville County, Idaho" violates the FDCPA's venue provision because Vicky Cole did not sign the credit card contract sued upon in Bonneville County, Idaho and, likewise, the Coles never lived in Bonneville County, Idaho. See id. at ¶¶ 37-38.

11. Defendants move to dismiss the Coles' claims and request judgment on the pleadings, arguing that the FDCPA's venue provision does not apply to a garnishment proceeding attendant to the Judgment in the underlying State Court Action. See Mem. in Supp. of Mot. to Dismiss, p. 4 (Docket No. 3, Att. 1) (citing FDCPA's venue statute and arguing: "The Coles assert that the garnishment proceeding must have been initiated in their county of residence, Adams County, Idaho. The issue for this Court to decide then is whether the statutory language "any legal action on a debt against any consumer" encompasses a writ of execution on a bank account used to satisfy a previous judgment.").

12. The Coles oppose Defendants' attempt to dismiss their claims, and have moved on their own for a judgment on the pleadings. See generally Mem. in Supp. of Mot. for J. on the Pleadings and Resp. to Mot. to Dismiss (Docket No. 10).

II. DISCUSSION

A. Legal Standard

FRCP 12(b)(6) motions to dismiss are appropriately granted when the complaint fails to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). When reviewing a complaint under this Rule, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). A complaint attacked by an FRCP 12(b)(6) motion to dismiss "does not need detailed factual allegations... but requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that ...


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