In Lachi v. GE Capital Bank — F.Supp.2d —-, 2014 WL 304436 (S.D.Cal. 2014), Judge Curiel found that a third party lacked standing to assert a violation of a cease and desist letter from the Doan Law Firm. The facts were as follows:
Plaintiff alleges that “Defendants and each of them” claim Plaintiff owes them a debt and that, on November 9, 2010, Plaintiff retained the Doan Law Firm, LLP to dispute the validity of the alleged debt. (ECF No. 1, Compl. ¶¶ 20, 21.) As to Encore, Plaintiff alleges Doan Law Firm sent “one (1) written ‘Cease and Desist Order’ by mail dated April 19, 2011.” ( Id. ¶ 27.) The “Cease and Desist Order” provided, among other things, that “Defendants Cease and Desist all further communications with Plaintiff with respect to the debt.” ( Id. ¶ 28.) Plaintiff alleges “Defendants physically received and had actual knowledge of the Cease and Desist Orders” and therefore “knew they were now prohibited from contacting Plaintiff by all means.” ( Id . ¶¶ 29, 35.) Plaintiff claims Defendants had actual knowledge that Plaintiff was represented by counsel, refused to pay the debt, disputed the validity of the debt, and was preparing to file for bankruptcy relief. ( Id. ¶¶ 30, 32, 33, 34.) Thereafter, Plaintiff alleges that “Defendants intentionally, willfully, deliberately, and knowingly refused to abide by the laws of” California’s Rosenthal Fair Debt Collection Act (“Rosenthal Act”), the federal Fair Debt Collection Act (“FDCPA”), and the federal Telephone Consumer Protection Act (“TCPA”). ( Id. ¶ 41. More Specifically, Plaintiff claims “Defendants continued communications with Plaintiff, as further evidenced by the copies of letters sent to Plaintiff,” which are attached to Plaintiff’s Complaint as Exhibit C. ( Id. ¶ 42.) Notably, the only letter from Encore that is included in Exhibit C is dated November 22, 2010—i.e., approximately five months before the Doan Law Firm allegedly sent Encore a “Cease and Desist Order.” ( See ECF No. 1–1 at 49; Compl. ¶ 27.) Plaintiff further claims “Defendants continued to make at least twenty-five (25), probably more, unlawful calls to Plaintiff from March 16, 2011 through March 27, 2011. Plaintiff details the alleged calls in a log attached as Exhibit D to her Complaint. Encore is not listed anywhere on the log. ( See ECF No. 1–1 at 53–54.) And again, these alleged calls were made before the Doan Law Firm allegedly sent Encore a “Cease and Desist Order.” ( See id.; Compl. ¶ 27. Plaintiff further alleges “Defendants sent two (2) emails to Plaintiff on March 23, 2011 and April 13, 2011,” which emails are attached as Exhibit E to Plaintiff’s Complaint. None of the emails are from Encore. ( See ECF No. 1–1 at 56–59.) Moreover, the March 23, 2011 email was sent prior to the Doan Law Firm allegedly sending Encore a “Cease and Desist Order.” ( See id.; Compl. ¶ 27. Plaintiff alleges she “had a consumer credit card account that had originated with, was assigned to, and/or was serviced by Defendants.” (Compl.¶ 58.) Plaintiff denies, however, “ever providing her cell phone and/or residential telephone number to Defendants with the express consent to be called by an ‘automatic telephone dialing system’ or ‘artificial or prerecorded voice,” or any other method.” (Id.¶ 60.)
Judge Curiel found no third party standing under the Rosenthal Act, explaining:
The Court agrees with Encore that Plaintiff has not sufficiently alleged she is a consumer for purposes of asserting her first and second causes of action against Encore. While Plaintiff claims generally, in paragraph 20 of her Complaint, that “Defendants allege that Plaintiff incurred a ‘debt,’ “ Plaintiff does not plausibly allege that she is “obligated or allegedly obligated to pay a debt” to Encore. See 15 U.S.C. § 1692a(3). This is because the only communication from Encore described in Plaintiff’s Complaint (i.e., the Encore letter) is addressed to Gustavo Lachi and does not mention Plaintiff. In other words, Plaintiff’s general allegation that “Defendants allege that Plaintiff incurred a ‘debt’ “ is conclusory. Further, Plaintiff concedes she failed to allege she is a “consumer” under § 1692c(d) because she has not alleged she was Gustavo Lachi’s spouse at the time she received the Encore letter. Accordingly, the Court will grant Encore’s Motion to Dismiss as to Plaintiff’s first and second causes of action as asserted against Encore.