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Gates v. Wachovia Mortgage


October 12, 2010


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This matter is before the court on the motion of defendant Wachovia Mortgage, FSB ("Wachovia") to dismiss plaintiff Lisa Gates' ("plaintiff") second claim for relief in the third amended complaint ("TAC") pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion. For the reasons set forth below,*fn1 defendant's motion to dismiss is GRANTED.


The court adopts the factual and procedural background set forth in its Order on Wachovia's motion to dismiss plaintiff's first amended complaint ("FAC"). (Memorandum & Order ("Order"), filed Feb. 2, 2010.)

On April 6, 2010, Wachovia moved to dismiss plaintiff's second amended complaint ("SAC") for insufficient facts and failure to state a claim. Defendant's motion was granted in part and denied in part. Specifically, the court granted plaintiff leave to amend her RFDCPA claim. Plaintiff filed a third amended complaint ("TAC") and Wachovia now moves to dismiss plaintiff's TAC for failure to plead facts sufficient to state cognizable claim for relief under RFDCPA.


Under Federal Rule of Civil Procedure 8(a), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Under notice pleading in federal court, the complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

On a motion to dismiss, the factual allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege "'specific facts' beyond those necessary to state his claim and the grounds showing entitlement to relief." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.

Nevertheless, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."); Twombly, 550 U.S. at 555. Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

Ultimately, the court may not dismiss a complaint in which the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citing Bell Atl. Corp., 550 U.S. at 570). Only where a plaintiff has failed to "nudge [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. at 1952. While the plausibility requirement is not akin to a probability requirement, it demands more than "a sheer possibility that a defendant has acted unlawfully." Id. at 1949. This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.

In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998).


Plaintiff's second claim for relief alleges a violation of California's Rosenthal Fair Debt Collection Practices Act ("RFDCPA"). (TAC ¶¶ 75-95.) Plaintiff's TAC alleges the date, time, and nature of six phone calls allegedly placed by Wachovia to plaintiff after plaintiff's January 15, 2009 letter to Wachovia requesting communications cease pursuant to the RFDCPA. Wachovia moves to dismiss this cause of action arguing, inter alia, that plaintiff has failed to allege a violation of the RFDCPA. (Def.'s Mot. to Dismiss Pl.'s TAC ("MTD"), filed Aug. 2, 2010.) Specifically, Wachovia contends that plaintiff's amended cause of action fails because the RFDCPA does not apply in cases involving foreclosure on a residential mortgage and because plaintiff alleges non-harassing contact insufficient to state a claim for violation of the RFDCPA. Id.

The RFDCPA precludes a debt collector from collecting or attempting to collect from a debtor on a consumer debt in a threatening or harassing manner. See Cal. Civ. Code § 1788 et seq. (West 2010). Specifically, the RFDCPA prohibits threats, obscenity, misleading or false communications, and overreaching by debt collectors. Id. §§ 1788.10-.12, 1788.14-.16. The RFDCPA defines a debt collector as "any person who in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection." Id. § 1788.2(c).

Numerous courts within the Ninth Circuit have concluded that foreclosure pursuant to a deed of trust is not the collection of a debt within the meaning of the RFDCPA. Lal v. American Home Servicing, Inc., 680 F. Supp. 2d 1218, 1224 (E.D. Cal. 2010); Izenberg v. ETS Servs., LLC, 589 F. Supp. 2d 1193, 1199 (C.D. Cal. 2008); see Wilson v. JPMorgan Chase Bank, NA., No. CIV. 2:09-863 WBS GGH, 2010 WL 2574032, *10 (E.D. Cal. June 25, 2010); Chernik v. Bank of America Home Loans, No. 2:09-cv-02746 JAM-DAD, 2010 WL 3269797, *3 (E.D. Cal. Aug. 18, 2010); Ricon v. Recontrust Co., No. 09-937, 2009 WL 2407396, at *4 (S.D.Cal. Aug. 4, 2009) (dismissing with prejudice plaintiff's unfair debt collection claims in foreclosure case); Pittman v. Barclays Capital Real Estate, Inc., No. 09-0241, 2009 WL 1108889, at *3 (S.D. Cal. Apr. 24, 2009) (dismissing with prejudice plaintiff's Rosenthal Act claim in foreclosure case because a "residential mortgage loan does not qualify as a 'debt' under the statute"); Gallegos v. Recontrust Co., No. 08-2245, 2009 WL 215406, at *3 (S.D. Cal. Jan. 28, 2009) (dismissing RFDCPA claim in foreclosure case). Further, several courts within this Circuit have also concluded that in mirroring certain provisions of the Federal Debt Collection Practices Act ("FDCPA"), a mortgage servicing company or any assignee of the debt is not considered a "debt collector" under the RFDCPA. Lal, 680 F. Supp. 2d at 1224 (citing Nool v. HomeQ Servicing, 653 F. Supp. 2d 1047, 1053 (E.D. Cal. 2009); Olivier v. NDEX West, LLC, No. 1:09-CV-00099 OWW GSA, 2009 WL 2486314, at *3 (E.D. Cal. Aug. 10, 2009); Cordova v. America's Servicing Co., No. C 08-05728 SI, 2009 WL 1814592, at *2 (N.D. Cal. June 24, 2009).

Plaintiff's complaint alleges that Wachovia, as either a loan servicer or owner of plaintiff's obligation, contacted plaintiff in connection with a foreclosure pursuant to the deed of trust. Under the prevailing law among California district courts, as a matter of law, defendant Wachovia cannot be liable for such conduct under the RFDCPA because the foreclosure is not a debt and Wachovia is not a debt collector within the meaning of the statute. Moreover, as the court noted in its prior orders, plaintiff's assertion that Wachovia "repeatedly called" her does not by itself constitute a violation of the RFDCPA; plaintiff's additional allegations in the TAC fail to support a conclusion that the six calls at issue were made in a threatening or harassing manner or that defendant used obscenity, deceptive practices, or made threats. As such, even if the RFDCPA applied to this defendant, the calls are not indicative of improper debt collection practices under the RFDCPA and plaintiff's claim still fails to meet the applicable pleading requirements.

Accordingly, Wachovia's motion to dismiss plaintiff's second claim for relief is GRANTED. Because plaintiff has failed to set forth a colorable RFDCPA claim despite four opportunities to do so, and because the court cannot discern how plaintiff could cure the deficiencies in her claim given the language of the statute and the nature of the conduct at issue, plaintiff's RFDCPA claim is dismissed without leave to amend.


For the foregoing reasons, Wachovia's motion to dismiss plaintiff's RFDCPA claim is GRANTED without leave to amend.


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