• Plaintiffs’ Defamation Claims are Preempted by the FCRA
  • September 15, 2010 | Author: Martin Thornthwaite
  • Law Firm: Strasburger & Price, LLP - Frisco Office
  • Medina v. EMC Mortg. Corp., 2010 U.S. Dist. LEXIS 62746 (N.D. Cal. 2010)

    Facts: Plaintiffs sued Defendants EMC Mortgage Corporation (“EMC”), Citibank, and OneWest Bank related to a mortgage loan Plaintiffs obtained. Plaintiffs asserted a number of claims against Defendants including violations of the Truth In Lending Act (“TILA”), Real Estate Settlement Procedures Act (“RESPA”), Rosenthal Fair Debt Collection Practices Act (“RFDCPA”), unfair business practices, slander of credit, wrongful foreclosure, negligence, and civil conspiracy. Defendants filed motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure on all of Plaintiffs’ claims. The Court granted Defendants’ motions and allowed Plaintiffs fourteen days to file an amended complaint.

    • RFDCPA. The California RFDCPA precludes a debt collector from “collecting or attempting to collect from a debtor on a consumer debt in a threatening or harassing manner.” Plaintiffs failed to allege that EMC or Citibank is a “debt collector” and “foreclosing on property pursuant to a deed of trust is not the collection of a debt within the meaning of the FDCPA.” Further a mortgage does not qualify as a “debt” under the FDCPA.
    • Preemption. Pursuant to Section 1681h(e), the Fair Credit Reporting Act (“FCRA”) preempts Plaintiffs’ “slander of credit” claim because Plaintiffs have not alleged that Defendants “furnished false information to a consumer reporting agency with malice or willful intent to injure Plaintiffs.”