Bartell v. National Collegiate Student Loan Trust 2005-3
3:14-cv-04238
N.D. Cal.Apr 27, 2015Background
- Plaintiff Heather Bartell received a voicemail that did not disclose the caller’s identity or purpose; call traced to Patenaude & Felix (P&F), a debt-collection law firm.
- NCT (a student loan trust) filed suit in San Francisco Superior Court seeking ~$43,479, naming Kahn (P&F) as counsel; the complaint did not identify the original creditor and alternatively described NCT as both creditor and assignee.
- Service was attempted only at Bartell’s former Berkeley address (where she no longer lived); a proof of service was nonetheless filed; Bartell later moved to quash service and learned of the suit after a default motion.
- Bartell alleges the debt is nonexistent, that defendants (NCT, its subservicer NCO, P&F, and Kahn) used misleading communications and improper litigation tactics to collect, and asserts claims under the FDCPA and California’s Rosenthal Act (RFDCPA).
- NCT and NCO moved to dismiss the FAC arguing (a) NCO is not a debt collector/liable, (b) the litigation privilege bars RFDCPA claims based on judicial filings, and (c) the state-court complaint is not misleading; the district court denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NCO is a "debt collector" under the FDCPA and can be liable | NCO regularly provides debt-collection services as NCT’s subservicer and enabled collection efforts (hiring P&F, providing records) | NCO argues it did not directly communicate with Bartell and is not a debt collector with respect to her account | NCO qualifies as a debt collector under §1692a(6); vicarious liability and indirect communications can support FDCPA claims at pleading stage |
| Whether alleged FDCPA violations (voicemail, false proof of service, misleading complaint) are sufficiently pleaded against NCO | The collective acts (voicemail, false proof, misleading complaint) violate §§1692d, e, f; NCO participated by furnishing information and affidavits | NCO contends many asserted violations require direct communication or that it had no involvement warranting dismissal | FAC plausibly alleges violations and agency/vicarious liability; dismissal on these grounds denied |
| Whether California’s litigation privilege bars RFDCPA claims based on judicial filings (proof of service, complaint) | Litigation privilege should not shield conduct that violates the remedial RFDCPA; allowing the privilege would eviscerate statutory protections | NCT/NCO argue communications made in furtherance of litigation are privileged under Cal. Civ. Code §47(b) | Court follows the majority and Komarova reasoning: litigation privilege does not bar RFDCPA claims at pleading stage; voicemail claims unrelated to litigation survive regardless |
| Whether the state-court complaint is misleading under the "least sophisticated consumer" standard; whether defendants’ extrinsic documents can be considered on Rule 12(b)(6) | Complaint fails to identify original creditor and misstates parties/status, which can mislead the least sophisticated consumer | Defendants submitted loan agreement and pool supplement showing assignment to NCT and argue these documents defeat the claim | The complaint (as pleaded and appended) omits original creditor and can be genuinely misleading; defendants’ extrinsic exhibits are not proper for resolution on a 12(b)(6) motion and cannot be considered now |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (standards for pleading plausible claims)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must be plausible, not merely conceivable)
- Heintz v. Jenkins, 514 U.S. 291 (attorneys who regularly collect debts fall within FDCPA definition of debt collector)
- Romine v. Diversified Collection Servs., Inc., 155 F.3d 1142 (scope of "debt collector" under FDCPA)
- Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507 (vicarious liability for FDCPA violations)
- Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109 (failure to identify original creditor can violate FDCPA)
- Komarova v. Nat’l Credit Acceptance, Inc., 175 Cal. App. 4th 324 (litigation privilege cannot be used to nullify RFDCPA protections)
- Swanson v. S. Oregon Credit Serv., Inc., 869 F.2d 1222 ("least sophisticated consumer" standard)
- Donohue v. Quick Collect, Inc., 592 F.3d 1027 (assessing whether communications are genuinely misleading under FDCPA)