The complaint also alleges that defendants knew or should have known that the state court action was time-barred, and that defendants "engaged in an unfair or unconscionable means of collecting a debt." Id. The complaint alleges that defendants "knew that the alleged evidence they possessed, and were willing or able to obtain during the course of litigation was, and would be insufficient as a matter of law to prove a case at the time of trial" but that nevertheless defendants continued to prosecute the state court action. Complaint ¶ 37.ĭavis brings the instant action under the FDCPA and the Rosenthal Act. Unifund dismissed the state court action without prejudice on November 17, 2006. Davis did not assert any counterclaims in the state court action. See Defendants' Request for Judicial Notice Ex. § 1692 et seq., and the California Rosenthal Act, Cal. Davis asserted a number of affirmative defenses, including that Unifund had failed to state a valid claim, that its claims were barred by the statute of limitations, that the Citibank contract was unenforceable and illusory, and that Unifund was in violation of the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Unifund filed the state court action as an assignee of Citibank, and sought to collect on a debt owed by Davis on a Citibank credit card.
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¶ 30 Defendants' Request for Judicial Notice Ex. The complaint alleges that Unifund, through its attorney Booksa, filed a lawsuit against Davis on in the Superior Court of California, County of Stanislaus. The complaint alleges that Unifund is in the business of collecting consumer debts owed to another, and that Booksa is an individual "regularly engaged in attempting to collect debts owed to another through litigation in this state." Complaint ¶¶ 4-5. On March 28, 2007, plaintiff Jason Davis filed this action against Unifund CCR Partners ("Unifund"), an Ohio corporation, and Steven Booksa. The Court has reviewed the parties' supplemental papers, and for the reasons set forth below, DENIES the motion. Pursuant to Civil Local Rule 7-1(b), the Court took defendant's motion to dismiss under submission, and ordered supplemental briefing.