In Murphy v. Stephens & Michaels Associates, Inc., 2011 WL 1465761 (S.D.Cal. 2011), Judge Lorenz held that, at the pleading stage, whether a defendant was a “debt collector” was an affirmative defense for which Defendant owed the burden, not Plaintiff’s pleading burden.
Plaintiff alleges a factual basis for relief she seeks under the FDCPA and the Rosenthal Act. Defendant argues that she did not allege facts showing that Defendant does not fall into any of the exceptions to the definition of a “debt collector” under the two statutes and that she did not allege the type of debt Defendant is attempting to collect. Both of the foregoing are facts within Defendant’s knowledge. With respect to the type of debt Defendant is attempting to collect, Plaintiff, prior to filing this action, Plaintiff requested Defendant to “send her details regarding the alleged debt via mail.” (First Am. Compl. at 3.) See 15 U.S.C. § 1692g(a). After Defendant failed to provide the requested information, Plaintiff’s counsel, prior to filing this action, twice sent a letter to Defendant requesting verification of the alleged debt, but Defendant did not respond to either letter. (Id.) Having failed to provide Plaintiff with the requisite information regarding the debt, Defendant cannot complain that Plaintiff did not sufficiently allege it. Moreover, whether Defendant falls within an exception to the “debt collector” definition under 15 U.S.C. Section 1692a is an affirmative defense. See Fox v. Citicorp Credit Serv., Inc., 15 F.3d 1507, 1511–12 (9th Cir.1994). The burden of pleading affirmative defenses is on the defendant, not the plaintiff. See Fed. R. Civ. Proc. 8(c); see also Jones v. Bock, 549 U.S. 199, 212–13, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).