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Miranda v. Field Asset Services

United States District Court, Ninth Circuit

June 27, 2013



GONZALO P. CURIEL, District Judge.


Presently before the Court is a motion to dismiss filed by Defendant OneWest Bank, erroneously sued as IndyMac Mortgage Services ("OneWest"). (ECF No. 29.) Plaintiff opposed the motion, (ECF No. 32), and OneWest replied, (ECF No. 33). The Court finds the OneWest's Motion to Dismiss suitable for disposition without oral argument. See CivLR 7.1.d.1. For the reasons below, the Court GRANTS OneWest's Motion to Dismiss WITHOUT LEAVE TO AMEND.


On July 16, 2012, Plaintiff's initial complaint was dismissed with leave to amend. (ECF No. 18.) Plaintiff thereafter filed a First Amended Complaint ("FAC"). (ECF No. 19.) Plaintiff's FAC asserted 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 January 9, 2013, the Court granted OneWest's Motion to Dismiss Plaintiff's FDCPA and Rosenthal Act Claims as to OneWest without leave to amend and Plaintiff's conversion and negligence claims as to OneWest with leave to amend. (ECF No. 27.) On January 30, 2013, Plaintiff filed a Second Amended Complaint ("SAC"), asserting against OneWest only a claim for negligence. (ECF No. 28.)


On some date prior to August 18, 2010, Plaintiff obtained a loan from OneWest to purchase real property located at 864 Compass Way, San Diego, California ("the Property"). Plaintiff thereafter 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.

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 twenty-six 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.

As a result, Plaintiff was denied entry into his "home and place of abode, " was prevented from having access to or enjoying the use of his personal property, and suffered "actual damages including, but not limited to, stress and humiliation, specifically because Plaintiff is a law enforcement office[r]."


In support of its argument, and pursuant to Federal Rule of Evidence 201, OneWest has requested that the Court take judicial notice of facts contained in four documents: (1) A Deed of Trust dated June 9, 2005, recorded on June 30, 2005, and listing Plaintiff as borrower, DHI Mortgage Company, LTD., LP. as lender, Mortgage Electronic Registration Systems, Inc. ("MERS") as beneficiary, and First American Title as trustee; (2) A Notice of Default and Election to Sell Under Deed of Trust dated March 29, 2010, stating $12, 374 as the amount owed on that date, indicating Plaintiff should contact OneWest for more information, listing NDEx West as trustee and MERS as beneficiary, and recorded March 30, 2010; (3) Notice of Trustee's Sale recorded July 1, 2010, indicating Plaintiff's default under the Deed of Trust executed June 9, 2005, and informing Plaintiff that the Property would be sold at public auction by Trustee NDEx West on July 22, 2010, at 10:00 A.M. at a specified location; and (4) A Grant Deed dated August 13, 2010, and recorded on August 25, 2010, in which Plaintiff granted ownership of the Property in fee simple to William L. Mercado and Stevie Kaufman. (ECF No. 29-2.)

These documents are already part of the record, as the Court took judicial notice of these same documents as part of the Court's Order Granting Defendants' Motion to Dismiss the Plaintiff's first complaint. (ECF No. 18.)

Plaintiff filed an Objection to OneWest's Request for Judicial Notice, arguing that the documents are irrelevant to the issues presently before the court. (ECF No. 32-1.) These documents, however, concern Plaintiff's legal relationship to the Property, an issue that has been addressed by both parties and is relevant to the question of whether Plaintiff, as OneWest contends in its Motion to Dismiss, is improperly seeking purely economic damages.[2]

Furthermore, as matters of public record, the documents submitted by OneWest are properly subject to judicial notice under Federal Rule of Evidence 201. See Fimbres v. Chapel Mortgage Corp. , 2009 WL 4163332, at *3 (S.D. Cal. Nov. 20, 2009) (taking judicial notice of a deed of trust, notice of default, notice of trustee's sale, assignment of deed of trust, and substitution of trustee, as each was a public record); Heuslein v. Chase Bank U.S.A., N.A., 2009 WL 3157484, at *3 (S.D. Cal. Sept. 24, 2009) (taking judicial notice of a deed of trust, notice of ...

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