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Oscar Miranda v. Asset Services and Indymac Mortgage Services A/K/A Indymac Federal Bank

January 9, 2013

OSCAR MIRANDA,
PLAINTIFF,
v.
ASSET SERVICES AND INDYMAC MORTGAGE SERVICES A/K/A INDYMAC FEDERAL BANK, FSB,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge

ORDER GRANTING DEFENDANT ONEWEST BANK'S MOTION TO ) DISMISS FIELD [ECF NO. 21]

INTRODUCTION

Presently before the Court is a motion to dismiss filed by Defendant OneWest Bank, erroneously sued as IndyMac Mortgage Services ("OneWest"). (ECF No. 21.) Plaintiff opposed the motion, (ECF No. 23), and One West replied, (ECF No. 24). Having considered the parties' submissions and the applicable law, the Court GRANTS One West's Motion to Dismiss for the reasons that follow.

FIRST AMENDED COMPLAINT*fn1

Plaintiff asserts four claims for (1) violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.; (2) violations of the Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), Cal. Civ. Code §§ 1788-1788.32; (3) conversion; and (4) negligence.

On some date prior to August 18, 2010, plaintiff Oscar Miranda ("Plaintiff") obtained a loan from OneWest to purchase real property located at 864 Compass Way, San Diego, California ("the Property"). Subsequently, Plaintiff defaulted on the loan and then entered into an agreement with OneWest to sell the Property to a third party in a "short sale" rather than enter foreclosure proceedings. Plaintiff asserts he listed the Property for sale in an attempt to mitigate any losses to OneWest because of his default and inability to continue making payments. A potential buyer apparently expressed interest in the Property, offering to purchase it from OneWest. At some point during this period, OneWest "assigned, placed, or otherwise transferred" the loan to defendant Field Asset Services ("FAS"), hiring FAS for the purpose of collecting on the payments owing and/or repossessing the Property. In so doing, Plaintiff alleges OneWest and FAS disclosed information about Plaintiff's debt to some other person in violation of the law.

Plaintiff alleges FAS advertises its services for the sole purpose of collecting defaulted debts, has engaged in debt collection activities for over twelve years, and deals regularly with 26 major mortgage companies to assist in the collection of debts. FAS's services include "locking out delinquent debtors from property being collected upon" as well as providing assistance to other debt collectors like "collection lawyers" to "manage the legal process" of collecting debts.

On or about August 18, 2010, "Defendant FAS, at the direction of Defendant [OneWest]," went to the Property while Plaintiff was not present and "physically broke into Plaintiff's home," and changed the locks, without any "present legal right" of possession. During that same visit, FAS or an agent of FAS removed certain items from the Property, including a flat screen television, a Panasonic surround sound system, a television wall mount, and an entertainment system cabinet.

PROCEDURAL HISTORY

On July 16, 2012, Judge Sammartino granted OneWest's and FAS's motions to dismiss Plaintiff's original complaint, without prejudice, for failure to state a claim upon which relief could be granted. Specifically, Judge Sammartino concluded Plaintiff did not allege facts to indicate how OneWest and FAS qualified as "debt collectors" under the FDCPA, a threshold qualification for liability thereunder. Having dismissed the sole federal claim, Judge Sammartino declined to exercise supplemental jurisdiction over Plaintiff's pendant state law claims pursuant to 28 U.S.C § 1367(c)(3). Plaintiff thereafter filed a First Amended Complaint ("FAC"). (ECF No. 19.) FAS filed an answer and OneWest filed the instant motion to dismiss. (ECF Nos. 20, 21.)

REQUESTS FOR JUDICIAL NOTICE

The Court does not rely on any facts contained in the parties' requests for judicial notice, (ECF Nos. 21-3, 23-4), and therefore DENIES AS MOOT those requests.

DISCUSSION

I. Legal ...


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