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Dale Harms v. Bac Home Loans Servicing

November 23, 2011

DALE HARMS, PLAINTIFF,
v.
BAC HOME LOANS SERVICING, LP; RECONTRUST COMPANY, N.A., AND DOES 1-10, INCLUSIVE,,
DEFENDANTS.



The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION TO FILE AMENDED COMPLAINT

INTRODUCTION

Plaintiff brings claims against Defendants Bank of America Home Loan Servicing (BACHLS) and ReconTrust for violations of the 15 Fair Debt Collection Practices Act (FDCPA) and the Fair Credit 16 Reporting Act (FCRA), along with claims for violations of 17 California state law. This is the second lawsuit that Plaintiff 18 has brought against Defendants. Plaintiff has filed a motion for 19 leave to amend. Defendants have filed a motion to dismiss the 20 complaint. For the reasons stated below, Defendants' motion to 21 dismiss is GRANTED and the motion to file an amended complaint is 22 DENIED.

BACKGROUND

Plaintiff denies having any contractual agreement for credit, 25 loans or services with Defendants and challenges the existence of 26 a debt. Instead, Plaintiff bases his claims under the FDCPA on 27 Defendants' alleged failure to validate his debt and Defendants' 28 attempt to collect that debt. He bases his FCRA claims on Defendants' reporting his debt to credit bureaus allegedly without 2 having validated the debt. 3

A court may take judicial notice of matters of public record 4 without converting a motion to dismiss into a motion for summary 5 judgment. See Fed. R. Civ. P. 12(d); Mir v. Little Co., 844 F.2d 6 646, 649 (9th Cir.1988). Plaintiff provides a copy of a 7 promissory note, executed on April 14, 2005, showing that he did 8 obtain a loan from Ampro Mortgage Company, in the amount of 9 $392,000. Pl.'s Ex. B. The note acknowledges an understanding on 10 the borrower's part that the lender may transfer the note.

Defendants provide a copy of the deed of trust (DOT) signed by Plaintiff. RJN Ex. 1. MERS is listed as the nominee of the 13 trustee and the beneficiary of the DOT. Ampro Mortgage Company is 14 identified as the lender and trustee. Paragraph 20 of the DOT 15 allows for sale of the note without prior notice to borrower. 16

Paragraph 23 allows the lender to appoint successor trustees. On 17 March 8, 2010, MERS, as beneficiary and in accordance with 18 Paragraph 23, transferred trustee status to ReconTrust and 19 transferred its beneficial interest to Bank of New York Mellon 20 (BNY). RJN Ex. 2. The first notice of default (NOD) was sent two 21 days later. RJN Ex. 3. The second NOD was issued on February 10, 22 2011. RJN Ex. 5. 23

On March 1, 2011, Plaintiff sent a cease-and-desist letter to Defendants requesting validation of his debt. He received what he 25 calls an alleged verification, with a copy of the note and the 26 deed of trust, a computer printout of the "alleged loan history, 27 only showing alleged payments." Compl. at 6. 28 Plaintiff's complaint comprises six claims. The first claim 2 alleges as a violation of state law that Defendants sent him an 3 account statement indicating a need for an immediate response 4 rather than allowing thirty days "as required by law." Compl. at 5 5. The 1AC identifies the Rosenthal Fair Debt Collection Practices Act (RFDCPA) as the statute Defendants allegedly 7 violated. Cal. Civ. Code § 1788 et. seq. 8 Plaintiff's second claim alleges violations of the FDCPA, for 9 failure to provide validation of the "alleged debt" as required by 10 the statute and Defendants' continued attempt to collect the debt 11 in violation of the FDCPA.

Plaintiff's third claim alleges that because Defendants did 13 not provide validation of the debt, information regarding his 14 outstanding debt that was furnished to credit bureaus was 15 erroneous or inaccurate, in violation of the FCRA, under 15 U.S.C 16 § 1681s-2. 17

Plaintiff's fourth claim alleges that Defendants failed to 18 mark his account in dispute in violation of the FCRA, under 15 19 U.S.C § 1681s-2. Subsection (a)(3) establishes the duty to 20 provide a notice of dispute. 21

Plaintiff's fifth cause of action is titled "continued 22 collection activity" but alleges false or misleading 23 representations under 15 U.S.C. § 1692e. 24

Plaintiff's sixth cause of action alleges willful non- 25 compliance with the FDCPA and the FCRA. It, however, cites to the 26 provisions of the statute for negligent non-compliance. 15 U.S.C. ยง 1681n. 28 Plaintiff's first lawsuit in this district against ReconTrust, MERS, BNY, and BACHLS was dismissed by this Court as 3 legally frivolous, for failing to state a cognizable claim upon 4 which relief could have been granted. RJN Ex. 8. Plaintiff cited 5 criminal ...


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