Full title: HUY THANH VO, Plaintiff, v. NELSON & KENNARD, U.S. Bancorp and Does 1–10…
Court: United States District Court, E.D. California.
Date published: Mar 15, 2013
Facts
In 2009, the plaintiff’s brother, Khoa T. Vo, allegedly owed a debt to U.S. Bank. U.S. Bank sued Nelson & Kennard, representing the bank in the Collection Action. Despite being named a defendant, the plaintiff was not responsible for the debt. In 2009, U.S. Bank took the plaintiff’s default judgment, causing a judgment lien on his property. This negatively affected his credit rating and led to a 5.5% interest rate when he attempted to refinance a loan. The plaintiff was unaware of the lawsuit for several years. In 2012, he learned of the Collection Action and sought legal action from Nelson & Kennard. However, nearly 90 days passed without corrective action. The plaintiff moved to vacate the default judgment, but U.S. Bank opposed it, resulting in additional attorney fees. The Sacramento County Superior Court granted the motion, causing emotional distress and attorney fees. The plaintiff’s complaint asserts violations of the Fair Debt Collection Practices Act, California’s Rosenthal Act, negligence, libel, and malicious prosecution.
Issue
Decision
The court hereby orders as follows:
[1] U.S. Bank’s motion to dismiss the Second Amended Complaint for lack of subject matter jurisdiction is DENIED.
[2] The Plaintiff’s FDCPA and Rosenthal Act claims are DISMISSED without prejudice to the extent they are premised on violations of 15 U.S.C. § 1692d, except as any alleged violations relate to the defendant’s failure to vacate the judgment against the plaintiff. In all other respects, U.S. Bank’s motion to dismiss the plaintiff’s claims under the FDCPA and the Rosenthal Act is DENIED.
[3] The plaintiff’s claim for malicious prosecution is DISMISSED without prejudice.
[4] Plaintiff’s claims for negligence and libel are DISMISSED with prejudice.
[5] Plaintiff is DIRECTED to file a Third Amended Complaint by this order no more than 21 days after its entry.
IT IS SO ORDERED.