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Cochran v. Bank of New York Mellon Trust Company N.A.

United States District Court, C.D. California

July 29, 2015

Melody L. Cochran,
The Bank of New York Mellon Trust Company N.A., et al.


GEORGE H. KING, Chief District Judge.

Proceedings: (In Chambers) Order re: Defendants' Motion to Dismiss [Dkt. 9]

This matter is before us on the above-captioned Motion. We have considered the papers filed in support of and in opposition to this Motion and deem this matter appropriate for resolution without oral argument. L.R. 7-15. As the Parties are familiar with the facts, we will repeat them only as necessary. Accordingly, we rule as follows:

I. Background

On October 21, 2003, Anthony H. Delonay ("Delonay") obtained a $312, 000 loan secured by a Deed of Trust ("DOT") on real property located at 2235 Heather Way, Pomona, California 91767 (the "Property") from lender GreenPoint Mortgage Funding, Inc. ("GreenPoint"). (Compl. at ¶ 27; see also Defs.' RJN, [1] ("RJN") Ex. 1.) On April 28, 2012, GreenPoint executed an Assignment of Deed of Trust transferring all beneficial interest under the DOT to Defendant The Bank Of New York Mellon, As Successor To JPMorgan Chase Bank, As Trustee For Mastr Adjustable Rate Mortgages Trust 2003-6 Mortgage Pass-Through Certificates, Series 2003-6 (the "Trust").[2] (RJN, Ex. 4.) During the relevant period, Defendant Ocwen Loan Servicing, LLC ("Ocwen") acted as the servicer of the loan. ( See id., Exs. 5-6.) On July 6, 2014, Ocwen executed a Substitution of Trustee, substituting Defendant Western Progressive Trustee, LLC dba Western Progressive, LLC ("Western Progressive") as trustee under the DOT. ( Id., Ex. 5.) On September 10, 2014, Western Progressive recorded a Notice of Default ("NOD"), which stated that Delonay was in default in his loan in the amount of $401, 765.38.[3] ( Id., Ex. 6.)

In or around September 2014, Plaintiff Melody L. Cochran ("Plaintiff") allegedly received at the Property a series of "collection letters, " including (1) a "collection letter" addressed to her from Western Progressive which contained the NOD and a "Debt Validation" notice, which stated "[w]e are attempting to collect a debt, and any information we obtain will be used for that purpose" and (2) a "collection letter" addressed to Delonay from Western Progressive that contained a Notice of Trustee's Sale that "threatened to sell the property as early as December 30, 2014." (Compl. at ¶¶ 38-40.) On April 29, 2015, Plaintiff filed this action. [Dkt. 1.] Based on the foregoing, Plaintiff's Complaint asserts the following claims: (1) violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Sections 1692, et seq.; (2) violation of the Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code Sections 1788, et seq.; and (3) violation of California Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code Sections 17200, et seq. Defendants now move to dismiss Plaintiff's Complaint in its entirety. [Dkt. 9.]

II. Legal Standard[4]

In order to survive a motion to dismiss, a complaint must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must contain factual allegations sufficient to "state a claim to relief that is plausible on its face." Id. at 555, 570. In considering a motion to dismiss, we must accept the allegations of the complaint as true and construe them in the light most favorable to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). We need not accept as true, however, legal conclusions "cast in the form of factual allegations." W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

Although our review under 12(b)(6) is generally limited to the contents of the complaint, we "may consider evidence on which the complaint necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion." Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). Such documents are treated as part of the complaint, and we may assume that their contents are true for purposes of the motion to dismiss. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

III. Analysis

A. FDCPA Claim

To establish a FDCPA claim, Plaintiff must show: (1) she is a consumer within the meaning of 15 U.S.C. §§ 1692a(3) and 1692c(d); (2) that the debt arose out of a transaction entered into for personal, family, or household purposes; (3) that Defendants are debt collectors within the meaning of 15 U.S.C. § 1692a(6); and (4) that Defendants violated one of the provisions of the FDCPA, 15 U.S.C. §§ 1692a-1692o. Ananiev v. Aurora Loan Servs., LLC, 2012 WL 2838689, at *3 (N.D. Cal. July 10, 2012).

1. Whether the Trust is a "Debt Collector" Under the FDCPA

The FDCPA defines the phrase "debt collector" to include: (1) "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, "[5] and (2) any person "who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). Defendants argue that the Trust cannot be considered a "debt collector" under the FDCPA, because it is the beneficiary under the lien and "[a] creditor attempting to collect on debt it owns is not a debt collector." (Br. ISO Mot. ("Br.") at 3.) We agree, as the FDCPA defines a "debt collector" as someone who collects debts due to another. See, e.g., Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1031 (9th Cir. 2009) ("Further, a creditor'[6] is not a debt collector' under the FDCPA."); Herrejon v. Ocwen Loan Servicing, LLC, 980 F.Supp.2d 1186, 1202 (E.D. Cal. 2013) ("The complaint lacks a valid FDCPA claim... given that OneWest Bank, FSB is a creditor, not a debt collector."); Tina v. Countrywide Home Loans, Inc., 2008 WL 4790906, at *7 n.2 (S.D. Cal. Oct.30, 2008) (concluding that the defendant was not a "debt collector" under the FDCPA because its "conduct was directed to colleting its own debts"); Valdez v. America's Wholesale Lender, 2009 WL 5114305, at *7-8 (N.D. Cal. Dec. 18, 2009) (same). Plaintiff argues that we should not dismiss her FDCPA claim against the Trust because "[a]though it is possible that [the Trust] was attempting to collect a debt for itself" it is also "plausible that [the Trust] was attempting to collect a debt on behalf of the other defendants or for some unidentified third party." (Opp'n at 5.) ...

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