In Vasquez v. State Recovery Systems, Inc., 2011 WL 6012326 (E.D. Cal. 2011), Judge Burrell found Plaintiff’s recitation of the legal requirements of the Rosenthal Act and FDCPA insufficient to state a claim under Iqbal/Twombly.
Plaintiff’s FAC essentially comprises the following allegations: “Defendant is a debt collector as that term is defined by 15 U.S.C. 1692a(6) and Cal. Civ.Code § 1788.2(c)”; Defendant “sought to collect a consumer debt [as that term is defined by 15 U.S.C. 1692a(5) and Cal. Civ.Code § 1788.2(h) ]”; “In May 2011, Defendant threatened to send Plaintiff’s case to ‘legal’ and garnish her wages[ ]”; “At the time this threat was made, Defendant had not obtained a judgment against Plaintiff therefore they had no legal authority by which to garnish Plaintiff’s wages[ ]”; Defendant violated 15 U.S.C. §§ 1692d and 1692e(4)-(5) of the FDCPA and Cal. Civ.Code sections 1788.10(e) and 1788.17 of the Rosenthal Act. (FAC ¶¶ 7–8, 11–13, 18, ECF No. 5.) ¶ Defendant argues Plaintiff’s allegations do not demonstrate that Defendant was attempting to collect a “debt” or a “consumer debt” prescribed in either Act; that Defendant qualifies as a “debt collector” prescribed in either Act; or that Defendant did anything unlawful under either Act. (Mot. 2:16–21, 5: 25–28, 6:11–13, 9:7–10:7.) ¶ Plaintiff’s FAC comprises only conclusory allegations that are insufficient to state an actionable claim against Defendant under either Act. See Lopez v. Rash & Curtis Assocs., No. 10–cv–1172, 2010 U.S. Dist. LEXIS 91744, at *5–6, 2010 WL 3505079, at *2 (E.D.Cal. Sep.3, 2010) (finding that “merely mak[ing] the conclusory statement that Defendant is a debt collector as defined by the FDCPA” is insufficient to state a claim for relief); 15 U.S.C. §§ 1692e(4) and 1692e(5) of the FDCPA (proscribing “[t]he representation or implication that nonpayment of any debt will result in … [wage] garnishment … unless such action is lawful and the debt collector or creditor intends to take such action” and “[t]he threat to take any action that cannot be legally taken or that is not intended to be taken.”) (emphasis added); Cal. Civ.Code section 1788.10(e) of the Rosenthal Act (proscribing “[t]he threat to any person that nonpayment of the consumer debt may result in the arrest of the debtor or the seizure, garnishment, attachment or sale of any property or the garnishment or attachment of wages of the debtor, unless such action is in fact contemplated by the debt collector and permitted by the law”) (emphasis added). ¶ For the stated reasons, Defendant’s dismissal motion is GRANTED