United States District Court, C.D. California
December 15, 2014
Nationstar Mortgage LLC
CIVIL MINUTES - GENERAL
The Honorable James V. Selna.
Proceedings: (IN CHAMBERS) Order Denying Defendant's Motion to Dismiss
The Court, having been advised by the parties that they submit on the Court's tentative ruling previously issued, hereby DENIES the defendant's motion and rules in accordance with the tentative ruling as follows:
Defendant Nationstar Mortgage LLC (" Nationstar") moves to dismiss Plaintiff Ramin Redjai's (" Redjai") complaint. (Docket No. 14.) Redjai has responded (Docket No. 18) and Nationstar has replied. (Docket No. 19)
For the following reasons, Nationstar's motion is DENIED.
A. Request for Judicial Notice
Nationstar brings a request for judicial notice. (Docket No. 15.) Pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of matters of public record if the facts are not " subject to reasonable dispute." Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001); see Fed.R.Evid. 201(b).
Nationstar requests that the Court take judicial notice of the following documents: (1) a Deed of Trust recorded on March 1, 2005 in the Official Records of the County of Orange, Document No. 2005000151803; (2) an Assignment of Deed of Trust recorded on June 30, 2011 in the Official Records of the County of Orange, Document No. 2011000321223; (3) a Notice of Default and Election to Sell Under Deed of Trust recorded on November 28, 2011 in the Official Records of the County of Orange, Document No. 2011000599914; (4) a Notice of Trustee's Sale recorded on February 29, 2012 in the Official Records of the County of Orange, Document No. 2012000112396; (5) a Corporate Assignment of Deed of Trust recorded on November 18, 2013 in the Official Records of the County of Orange, Document No. 2013000632959; and (6) a Notice of Trustee's Sale recorded on December 16, 2013 in the Official Records of the County of Orange, Document No. 2013000692050. (Req. Judicial Notice, Exs. A-F, Docket Nos. 15-1, 15-2, 15-3, 15-4, 15-5, 15-6.)
All of the documents in the request for judicial notice contain facts that " can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b)(2). Accordingly, the Court grants Nationstar's request and takes judicial notice of the aforementioned documents.
B. Factual Allegations
Redjai filed this action against Nationstar on October 7, 2014. (Docket No. 1.) The following facts are alleged in Redjai's complaint. Redjai executed an Adjustable Rate Note (" Note") and Deed of Trust (" Trust Deed") to facilitate the purchase of a home in 2005. (Compl. ¶ 8.) In 2011, Redjai filed for bankruptcy. (Id. ¶ 10.) The bankruptcy court granted Redjai a discharge from bankruptcy in May 2011. (Id. ¶ 11.) In September 2013, Nationstar sent correspondence to Redjai identifying itself as the new servicer of Redjai's loan. (Id. ¶ 12.) Nationstar reported the Note as voluntarily discharged to national credit reporting bureaus. (Id. ¶ 13.)
On November 29, 2013, Redjai sent a letter to Nationstar instructing it to cease and desist verbal communications with him. (Id. ¶ 15.) In May 2014, Nationstar sent Redjai two letters identifying Nationstar as a debt collector and " seeking to collect a debt evidenced by the Note." (Id. ¶ ¶ 16, 17; Docket No. 1, Exs. A, B.) Between June and September, Nationstar sent Redjai loan statements, allegedly seeking to collect increasing amounts due under the note. (Compl. ¶ ¶ 18, 19, 21, 24.) In September, Nationstar called Redjai at least three times " in an effort to collect an unspecified amount allegedly due under the Note." (Id. ¶ 22.) On at least two occasions, Redjai informed Nationstar that he was represented by counsel. (Id. ¶ ¶ 20, 23.) Nationstar has also allegedly reported that Redjai is delinquent on the Note to the credit bureau(s). (Id. ¶ 28.)
Redjai alleges that Nationstar violated the federal Fair Debt Collection Practices Act (" FDCPA"). (Id. ¶ ¶ 30-33.) Specifically, Redjai alleges that Nationstar violated the following provisions of the FDCPA: (1) " 15 U.S.C. § 1692f(1) by including in its Loan Statements amounts that were discharged by bankruptcy, thereby . . . attempting to collect an amount not authorized by law"; (2) " 15 U.S.C. 1692e(2) by making and/or employing false, deceptive and misleading representations by including in its Loan Statements amounts that were discharged in bankruptcy, thereby misrepresenting the amount of debt"; (3) " 15 U.S.C. § 1692e(8) by reporting credit information to the credit reporting bureaus which it [knew] or should have known was false . . . and by failing to inform the credit reporting bureaus that [Redjai] disputes the alleged debt"; and (4) " 15 U.S.C. § 1692c(a)(2) by repeatedly contacting him when [Nationstar] knew that he was represented by counsel." (Id.)
II. LEGAL STANDARD
Under Rule 12(b)(6), a defendant may move to dismiss for failure to state a claim upon which relief can be granted. A plaintiff must state " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim has " facial plausibility" if the plaintiff pleads facts that " allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 668, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
In resolving a 12(b)(6) motion under Twombly, the Court must follow a two-pronged approach. First, the Court must accept all well-pleaded factual allegations as true, but " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Nor must the Court " 'accept as true a legal conclusion couched as a factual allegation.'" Id. at 678-80 ( quoting Twombly, 550 U.S. at 555). Second, assuming the veracity of well-pleaded factual allegations, the Court must " determine whether they plausibly give rise to an entitlement to relief." Id. at 679. This determination is context-specific, requiring the Court to draw on its experience and common sense, but there is no plausibility " where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct."
Nationstar correctly notes, and Redjai does not dispute, that a creditor retains the right to foreclose on a property subject to a debt discharged in a Chapter 7 bankruptcy. (Mot. 4-5, Opp'n 4.) However, Redjai's complaint does not allege that Nationstar's activities were in furtherance of an authorized non-judicial foreclosure. (Opp'n 4.) Rather, Redjai alleges that Nationstar contacted him repeatedly in an effort to collect a debt, reported false information to credit bureaus, and contacted him despite knowing that he was represented by counsel. (See Compl. ¶ ¶ 18-23, 30-33.) While further stages of litigation may reveal that these allegations are inaccurate,  at this early stage Redjai has met his burden of pleading facts that state a facially plausible claim for relief.
For the foregoing reasons, Nationstar's motion to dismiss is DENIED.
IT IS SO ORDERED.