Has Judge Sammartino in the U.S.D.C. for the Southern District of California seen “Who Framed Roger Rabbit”.  In Barvie/Herman v. Bank of America, 2018 WL 4537723  (S.D.Cal., 2018), “Baby Herman” had some unauthorized charges debited from Baby Herman’s account, which didn’t go over none-too-well.

Plaintiffs gave birth to a child (“Baby Herman”) and subsequently opened up a savings account with Defendant in the baby’s name. ECF No. 1 (“Compl.”) ¶¶ 18–19. Plaintiffs receive statements from Defendant regarding the account. Id. ¶ 20. Beginning in April 2017, seven unauthorized charges were debited from Baby Herman’s account.

Could they sue under the Rosenthal Act?  No, said the District Court, because they weren’t “debtors”.

Defendant argues Plaintiffs are not “debtors,” nor is there any “consumer debt” here. Mot. at 11. Defendant further argues that there are no allegations it engaged in any debt collection activity on a debt owed by Plaintiffs. Id. Plaintiffs respond that they are debtors because when the unknown third party used funds from Baby Herman’s account to pay a creditor, Plaintiffs “were alleged to be indebted to an unknown original creditor.” Opp’n at 13. Plaintiffs also argue that they may assert violations of the RFDCPA even though they did not owe a debt. Id. at 14.  Here, Plaintiffs allege that an unknown third party owed a debt to an unknown creditor. Compl. ¶ 22. Although “Plaintiffs have no connection to this debt and have no knowledge as to who[m] i[t] belongs,” id. ¶ 40, Defendant debited several charges from Baby Herman’s account “to satisfy the debt of a third-party for which Plaintiffs bore no responsibility.” Id. ¶¶ 24–25, 41. There is no indication that Defendant communicated to Plaintiffs at any time its belief that they owed a debt to Defendant on which Defendant was collecting. Instead, it appears only that Defendant acted at the direction of an unknown third party to pay amounts to an unknown creditor.  Given these facts, the law favors Defendant. It is well-established that a plaintiff lacks standing to bring a cause of action under the RFDCPA when she does not owe or is not alleged to owe the debt. See, e.g., Inzerillo v. Green Tree Servicing, LLC, No. 13-CV-06010-MEJ, 2014 WL 6660534, at *1, *6 (N.D. Cal. Nov. 24, 2014)(parents of mortgagor who never had account with mortgagee and from whom mortgagor never attempted to collect a debt lacked standing); Sanchez v. Client Servs., Inc., 520 F. Supp. 2d 1149, 1153, 1155 n.3 (N.D. Cal. 2007)(holding that daughter of cardholder who did not owe the debt at issue and was not otherwise obligated to pay the debt was not a “debtor” and therefore lacked standing); see also People v. Persolve, LLC, 218 Cal. App. 4th 1267, 1272 n.1 (2013)(“Only the person who owes the debt or is otherwise obligated to pay the debt has standing to assert violations under the [Rosenthal] Act.”); cf. Masuda v. Citibank, N.A., 38 F. Supp. 3d 1130, 1132–34 (N.D. Cal. 2014)(finding that plaintiff was a “debtor” where defendant bank called over 300 times attempting to collect a debt that plaintiff did not in fact owe). Although the Court questions Plaintiffs’ ability to cure this defect in its RFDCPA claim, the Court will provide Plaintiffs the opportunity to amend and DISMISSES WITHOUT PREJUDICE their second cause of action.