Lynaugh v. Vincent

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Linda Lynaugh, No. CV-19-04643-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Michael Vincent, et al., 13 Defendants. [14] 15 Plaintiff Linda Lynaugh (“Plaintiff”) brought this action against Michael Vincent 16 and Stinson Leonard Street, LLP (“Defendants”) for alleged violations of the Fair Debt 17 Collection Practices Act (“FDCPA”). Plaintiff’s Amended Complaint (“Amended 18 Complaint”) alleges three violations of the FDCPA by Defendants’ attempts to collect on 19 a Maricopa County Superior Court Judgment. Pending before this Court is Defendants’ 20 Motion to Dismiss (Doc. 12) the Amended Complaint (Doc. 9). Plaintiff has filed a 21 Response (Doc. 13) and Defendants filed a Reply (Doc. 15). 22 I. Background 23 The debt at issue arises from an Arizona state court (“State Court”) judgment. 24 (Doc. 9 at 4). The facts in that case are summarized as follows: Plaintiff and Marshall & 25 IIsley Bank (“M&I”) entered into a Home Equity Credit Agreement (“Loan”) which was 26 secured by a deed of trust on rental property (“Property”) owned at the time by Plaintiff. 27 (Doc. 13, Ex. 1). Four years after the Loan was issued, BMO Financial Group (“BMO”) 28 acquired M&I and terminated the Loan. Disputes arose following the termination of the 1 Loan, and to settle the outstanding balance, BMO instructed the Property to be sold at a 2 trustee’s sale. (Id.) Shortly after the sale, Plaintiff filed a complaint in State Court against 3 BMO. (Id.) Defendants represented BMO in the matter. (Id.) The State Court granted 4 BMO’s motion for summary judgment, awarded attorneys’ fees and costs of $49,450.20 5 and dismissed the case. (Id.) The State Court awarded the attorneys’ fees on two 6 independent bases. The first basis was a term within the Loan agreement, that, “[t]o the 7 extent not prohibited by law, Trustor shall pay all reasonable costs and expenses before 8 and after judgment, including without limitation, attorneys’ fees, . . . incurred by 9 Beneficiary in protecting or enforcing its rights under this Deed.” (Id.) The State Court 10 found that BMO incurred fees as a result of “protecting or enforcing its rights under the 11 Deed of Trust” and ordered Plaintiff to pay Defendants’ attorneys’ fees. (Doc. 12, Ex. 1). 12 The State Court also held that A.R.S. § 12-349 created an independent basis for the 13 attorneys’ fees, finding, among other actions, that Plaintiff’s “rambling, 36-page, 252 14 paragraph complaint” which asserted claims barred by statue were “clearly groundless” 15 and its “convoluted nature” ran afoul to Rule 8 of Arizona’s Rules of Civil Procedure. (Id.) 16 The State Court thereafter awarded Defendants their attorneys’ fees. (Id.) On appeal, the 17 Judgment against Plaintiff was upheld, finding the contractual term alone was enough for 18 the State Court to award the attorneys’ fees. The Appeals Court found no need to address 19 the State Court’s alternative reliance on A.R.S. §12-349 to award the attorneys’ fees as a 20 sanction. (Doc. 13, Ex. 1). Subsequently, Defendants attempted to collect on the judgment, 21 and Plaintiff filed this action. 22 II. Discussion 23 Plaintiff’s Amended Complaint contains three claims alleging Defendants’ violation 24 of the FDCPA when they attempted to collect on the judgment. Defendants contend that 25 each of Plaintiff’s three FDCPA claims fail as a matter of law. Defendants raise two 26 arguments: (1) the FDCPA does not apply to the attorneys’ fees judgment because it was 27 awarded as a sanction under A.R.S. §12-349; and (2) the FDCPA does not apply to the 28 attorneys’ fees as it does not meet the definition of consumer debt as defined by the 1 FDCPA. (Doc. 12). 2 Plaintiff argues that the attorneys’ fees are consumer debt under the FDCPA as the 3 contract term from which the judgment was granted is contained in a Home Equity Credit 4 Agreement. (Doc. 13). 5 III. Legal Standards 6 A. Motion To Dismiss Standards 7 A complaint must contain a “short and plain statement showing that the pleader is 8 entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). Rule 8 requires “more than an unadorned, the 9 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 10 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2009)). A motion to dismiss 11 pursuant to Rule 12(b)(6) challenges the legal sufficiency of a complaint. Fed.R.Civ.P. 12 12(b)(6). To avoid a rule 12(b)(6) dismissal, a complaint must plead “enough facts to state 13 a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 . 14 “A complaint has facial plausibility when the plaintiff pleads factual content that 15 allows the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556 ). “The 17 plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a 18 sheer possibility that defendant has acted unlawfully.” Id. A complaint providing “[l]abels 19 and conclusions” or “a formulaic recitation of the elements of a cause of action will not 20 do.” Twombly, 550 U.S. at 555 . The court must interpret the acts alleged in the complaint 21 in the light most favorable to the plaintiff, accepting all well-pleaded factual allegations as 22 true. Shwarz v. United States¸ 234 F.3d 428, 435 (9th Cir. 2000). 23 B. Fair Debt Collection Practices Act 24 Congress enacted the FDCPA to counter the abusive, deceptive, and unfair debt 25 collection practices used by debt collectors against consumers. 15 U.S.C. §1692 . The 26 FDCPA allows for consumers who have been exposed to such abusive debt collection 27 practices to bring a cause of action against the debt collectors to seek damages, attorneys’ 28 fees, and costs. Id. §1692k. 1 To successfully invoke a suit under the FDCPA, the case must involve a debt within 2 the meaning of the statute. Turner v. Cook, 362 F.3d 1219, 1227 (9th Cir. 2004). The statue 3 defines debt as “any obligation or alleged obligation of a consumer to pay money arising 4 out of a transaction in which the money, property, insurance, or services which are the 5 subject of the transaction are primarily for personal, family or household purposes, whether 6 or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692 (a)(5). “[N]ot all 7 obligations to pay are considered debts under the FDCPA.” Turner, 362 F.3d at 1226-27 . 8 The determination of whether the facts alleged in the complaint establish the existence of 9 debt within the meaning of § 1692(a)(5) is a question of law. Fleming v. Pickard, 581 F.3d 10 922, 925 (9th Cir. 2009). Such determination requires the court to examine the alleged 11 transaction and determine whether it is covered by the FDCPA. Id. If the debt does not 12 “arise out of a transaction” which is primarily for personal purposes, then the FDCPA is 13 not implicated. 15 U.S.C. § 1692 . 14 The meaning of a “transaction” is not defined in the Act, but “the consensus judicial 15 interpretation” is that the statute is limited to “obligations to pay arising from consensual 16 transactions, where parties negotiate or contract for consumer-related goods or services.” 17 Turner, 362 F.3d at 1227 (quoting Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., [18] 11 F.3d 1322, 1326 (7th Cir. 1997)). “[A]t a minimum, a ‘transaction’ under the FDCPA 19 must involve some kind of business dealing or other consensual obligation.” Fleming, 581 20 F.3d at 925 (quoting Turner, 362 F.3d at 1227-28 ). The court must focus on the underlying 21 obligation to determine if the debt arose out of a consumer transaction. Turner, 362 F.3d 22 at 1228 . The appropriate point in time for determining the character of a financial 23 obligation is when the obligation arose. See Bloom v. I.C. Sys., 972 F.2d 1067 , 1068-69 24 (9th Cir. 1992) (for the proposition that “the relevant time is when the loan is made, not 25 when collection is attempted”). Actions that result in court judgments are not transactions 26 under the FDCPA. Turner, 362 F.3d at 1227 (quoting Hawthorne v. Macadjustment, Inc., [27] 140 F.3d 1367, 1371 (11th Cir. 1998)). [28] 1 IV. Analysis 2 A. Are the Awarded Attorneys’ Fees Consumer Debt Under the FDCPA 3 The Court will first examine Defendants’ contention that the attorneys’ fees 4 judgment is not consumer debt as defined under the FDCPA.1 5 Defendants argue that the FDCPA is inapplicable because Plaintiff’s debt, the 6 awarded attorneys’ fees, did not arise from a consensual obligation. Defendants contend 7 that a judgment to pay awarded attorneys’ fees cannot be consensual and highlight 8 Plaintiff’s inability to identify what benefit she received as a result of the transaction. 9 Plaintiff attempts to assert that the attorneys’ fees are consumer debt within the meaning 10 of the FDCPA because the judgment being collected on is “directly attributed to the 11 contract terms” of the Loan. (Doc. 13 at 9). However, Plaintiff does not offer any reasoning 12 or legal authority to explain how the attorneys’ fees arose out of any consensual transaction 13 between her and Defendants. Plaintiff only argues that the attorneys’ fees arose out a 14 provision within the Loan and thus arose out of a Loan transaction. 15 Plaintiff cites a single case, Jason v. Maxwell & Morgan, P.C., in support of her 16 position. No. 16-CR-02894 SRB, 2018 WL 6181178 (D. Ariz. July 17, 2018).2 In Jason, a 17 law firm, acting on behalf of an association, filed suit in justice court against a homeowner 18 to recover unpaid homeowners’ assessments. The justice court ruled in favor of the law 19 firm, awarding the unpaid homeowners’ assessments and attorneys’ fees. When the law 20 firm attempted to collect on the judgment, the homeowner brought suit, claiming violations 21 of the the FDCPA. The court ruled in favor of the homeowner, finding that the law firm 22 had violated the FDCPA. The issue of whether the court judgment was consumer debt [23] 1 As an initial matter, Defendants are seeking to have the Court take judicial notice of the 24 State Court’s Attorneys’ Fees ruling and entry of judgment. (Doc. 12 at 6). Defendants attached the ruling and judgment as an Exhibit to the Motion to Dismiss. A court may take 25 judicial notice of matter of public record. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). Therefore, the Court takes notice of the two exhibits attached to 26 the Motion to Dismiss. 27 2 Plaintiff also provides a general statement that the Ninth Circuit rejects arguments that homeowners’ assessments are not debts under the FDCPA. This assertion is not made with 28 any cited support or any explanation as to how such holdings would relate to the awarded attorneys’ fees. 1 under the FDCPA was never addressed by the court, as the law firm never raised the 2 question. As a result, the holding of Jason is of little relevance to the issue at hand. In 3 addition, there is a strong distinction between the underlying basis for the two court 4 judgments. In Jason, the judgment arose from the unpaid homeowners’ assessment. The 5 obligation to pay the homeowners’ assessment arose when the home was purchased, which 6 is clearly a consensual transaction where the party derives a benefit. Here, the awarded 7 attorneys’ fees only arose after BMO was forced to enforce its rights under the Loan 8 Agreement. Thus, the obligation to pay the attorneys’ fees did not arise until after the State 9 Court entered judgment against Plaintiff, after finding her claims were clearly groundless. 10 See Turner, 362 F.3d at 1227 ; Bloom, 972 F.2d 1068 . 11 Plaintiff makes no alternative arguments of other consensual transactions from 12 which the attorneys’ fees could have arisen. Plaintiff’s only other potential argument for a 13 consensual transaction is the State Court’s Judgment. This is certainly not a consensual 14 transaction where the parties contracted or negotiated for a consumer good or service. 15 There is nothing consensual about a judgment being entered against a party. Simply put, 16 the State Court judgment fails to satisfy any characteristics of a consensual transaction that 17 would implicate the FDCPA. 18 Because the attorneys’ fees did not arise out of a consensual transaction, they are 19 not a consumer debt under the FDCPA. 20 Plaintiff’s Amended Complaint brings claims only asserting violations of the 21 FDCPA. Because Plaintiff fails to establish the debt is consumer debt under the FDPCA, 22 Plaintiff’s complaint fails to state a claim upon which relief can be granted and amendment 23 of her Complaint would be fertile. As a result, the Court will grant Defendants’ Motion to 24 Dismiss. Accordingly, 25 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (Doc. 12) is 26 GRANTED. Plaintiff’s Complaint is dismissed, with prejudice. 27 /// 28 /// 1 IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action 2|| and enter judgment accordingly. 3 Dated this 10th day of February, 2020. [4] 5 JL — ———— 6 Kear Diangé. 7 United States District Fudge [28] -7-