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Moriarity v. Nationstar Mortgage, LLC

United States District Court, E.D. California

February 27, 2014

LINDA D. MORIARITY, Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, and DOES 1-100, inclusive, Defendants.

MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT Doc. # 20

ANTHONY W. ISHII, District Judge.

This is an action for damages by plaintiff Linda D. Moriarty ("Plaintiff") who is proceeding in forma pauperis against defendant Nationstar Mortgage, LLC ("Defendant"). Plaintiff's First Amended Complaint ("FAC") filed on July 31, 2013, alleges a total of five claims for relief. The FAC was screened pursuant to 28 U.S.C. § 1915(e)(2). The claims remaining after screening are: (1) violation of the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq.; (2) violation of the California counterpart to the FDCPA, the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), California Civil Code § 1788 et seq.; and (3) violation of the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 277. A claim for violation of the federal Fair Credit Reporting Act and a claim for "obligation of fees due Plaintiff" were dismissed with prejudice. Currently before the court is Defendant's motion to dismiss the fourth claim for relief set forth in the FAC. Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.

JUDICIAL NOTICE

Defendants request the court take judicial notice of several documents that pertain to the Deed of Trust, its assignments to successor trustees, the notice of default, and documents filed in the Superior Court of Kern County. The court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b); United States v. Bernal Obeso , 989 F.2d 331, 333 (9th Cir. 1993). Facts subject to judicial notice may be considered by a court on a motion to dismiss. In re Russell , 76 F.3d 242, 244 (9th Cir. 1996). Applying Federal Rule of Evidence 201(b), federal courts routinely take judicial notice of facts contained in publically recorded documents, including Deeds of Trust, Substitutions of Trustee, and Notices of Default because they are matters of public record, and are not reasonably in dispute. See, e.g., Lee v. City of Los Angeles , 250 F.3d 668, 689 (9th Cir.2001) (quoting MGIC Indem. Corp. v. Weisman , 803 F.2d 500, 504 (9th Cir.1986)); Lingad v. IndyMac Fed. Bank , 682 F.Supp.2d 1142, 1146 (E.D.Cal.2010). Because the documents for which Defendants request judicial notice are documents whose accuracy cannot be questioned and that are of the type for which judicial notice is commonly granted, Defendants' request for judicial notice will be granted. The court notes Plaintiff has not objected to Defendant's request for judicial notice.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This action arises out of Defendant's efforts to collect payments allegedly owing on a mortgage secured by property located in Kern County, California. The FAC alleges Plaintiff took out a mortgage loan from Bank of America, N.A. in the amount of $106, 000.00 secured by property in Tehachapi, California (the "Mortgage"). A notice of default on the Mortgage and election to sell was filed on or about October 20, 2011. The mortgage was assigned to Defendant on or about July 12, 2012. Defendant provided notice of the assignment to Plaintiff and informed Plaintiff that Defendant would be the servicer of the mortgage. Sometime after the notice of default was filed but before the deed of trust was assigned to Defendant, Plaintiff commenced a lawsuit in the Superior Court of Kern County against Bank of America, N.A. That suit was amended following the assignment of the deed of trust to include Nationstar Mortgage as cross-claim co-defendant.

Plaintiff's first claim for relief alleges multiple violations of the FDCPA as follows:

i. By Placing a collection call at 6:58 A.M. which is other than between 8:00 A.M. and 9:00 P.M., violating [15 U.S.C.] § 1692c(a)(1);
ii. By Does placing 20 calls after receiving cease and desist telephone contact notice from debtor, violating § 1692c(c);
iii. By failing to send written information within 5 days of initial telephone contact, violating § 1692g(a);
iv. By various Does repeatedly placing calls, continually trying to engage in Plaintiff in [sic] conversation or leave repeated messages with intent to annoy or harass, violating § 1692d(5);
v. By misrepresenting the amount of the alleged debt, violating §1692e(2)(A), evidence to be presented at trial;
vi. By Doe failing to communicate to two separate [credit reporting agencies] derogatory credit information without also reporting that the alleged debt is disputed by consumer, violating § 1692e(8);
vii. By using unfair or unconscionable means in attempting to collect any debt, violating § 1692f, just by the sheer ...

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