United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
Defendant’s
motion to dismiss came on regularly for hearing on July 20,
2016. Plaintiff Donald Catherine appeared in propria persona.
Melissa Shaw appeared telephonically for defendant Wells
Fargo. No appearance was made for defendant Clear Recon Corp.
Upon review of the documents in support and opposition, upon
hearing the arguments of plaintiff and counsel, and good
cause appearing therefor, THE COURT FINDS AND ORDERS AS
FOLLOWS:
In this
action, plaintiff alleges claims arising out of a secured
loan in the amount of $253, 000 made by World Savings Bank
(defendant Wells Fargo’s predecessor in interest) to
plaintiff in 2004. Plaintiff received a modification of the
loan in 2010 and stopped making payments in June 2014. Notice
of default was recorded on December 30, 2015.
Plaintiff
alleges four causes of action: (1) failure to validate the
debt under the Fair Debt Collections Practices Act
(“FDCPA”), (2) dual tracking, (3) denial of
mortgage assistance, and (4) misrepresentation. Defendant
Wells Fargo moves to dismiss for failure to state a claim.
The gravamen of plaintiff’s argument in opposition is
that defendant has refused to “verify” the
mortgage debt.
In
considering a motion to dismiss for failure to state a claim
upon which relief can be granted, the court must accept as
true the allegations of the complaint in question,
Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007), and
construe the pleading in the light most favorable to the
plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236
(1974).
In
order to avoid dismissal for failure to state a claim a
complaint must contain more than “naked assertions,
” “labels and conclusions” or “a
formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-557 (2007). In other words, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Furthermore, a claim upon which the court can grant relief
has facial plausibility. Twombly, 550 U.S. at 570.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
A
motion to dismiss pursuant to Rule 12(b)(6) may also
challenge a complaint’s compliance with Federal Rule of
Civil Procedure 9(b) where fraud is an essential element of a
claim. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1107 (9th Cir. 2003). Rule 9(b), which provides a
heightened pleading standard, states: “In alleging
fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person’s mind may
be alleged generally.” Fed.R.Civ.P. 9(b). These
circumstances include the “‘time, place, and
specific content of the false representations as well as the
identities of the parties to the
misrepresentations.’” Swartz v. KPMG
LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam)
(quoting Edwards v. Marin Park, Inc., 356 F.3d 1058,
1066 (9th Cir. 2004)); see also Kearns v. Ford Motor
Co., 567 F.3d 1120, 1124 (9th Cir. 2009)
(“Averments of fraud must be accompanied by ‘the
who, what, when, where, and how’ of the misconduct
charged”). “Rule 9(b) demands that the
circumstances constituting the alleged fraud be specific
enough to give defendants notice of the particular misconduct
. . . so that they can defend against the charge and not just
deny that they have done anything wrong.”
Kearns, 567 F.3d at 1124.
In
ruling on a motion to dismiss pursuant to Rule 12(b), the
court “may generally consider only allegations
contained in the pleadings, exhibits attached to the
complaint, and matters properly subject to judicial
notice.” Outdoor Media Group, Inc. v. City of
Beaumont, 506 F.3d 895, 899 (9th Cir. 2007). Defendants
have requested this court take judicial notice of documents.
ECF No. 6-1. That request will be granted.
Defendant
contends that plaintiff’s claim under the FDCPA cannot
lie because defendant is not a debt collector subject to the
provisions of the Act. Defendant is correct. It appears that
plaintiff is claiming in the first cause of action that
defendant Wells Fargo is engaging in unlawful foreclosure
proceedings because Wells Fargo has not verified the debt and
that such conduct violates the FDCPA. The definition of debt
collector under the FDCPA does not include the
consumer’s creditors, a mortgage servicing company, or
assignees of the debt. See Lal v. Am. Home Servicing,
Inc., 680 F.Supp.2d 1218, 1224 (E.D. Cal. 2010); see
also 15 U.S.C. § 1692a(6)(F) (debt collector does
not include person who attempts to collect a debt to the
extent such activity concerns a debt which was not in default
at the time it was obtained by such person).[1] As such,
defendant Wells Fargo is not subject to the provisions of the
FDCPA and plaintiff’s first cause of action should be
dismissed.
Plaintiff’s
second claim for relief alleges that defendant engaged in
unlawful dual tracking. This cause of action as presently
pled fails to set forth any specifics regarding the claim
such as whether plaintiff submitted a loan modification
application, the date of the application and its current
status, and whether there was a recorded notice of
trustee’s sale. Moreover, plaintiff was already
afforded a loan modification in 2010. Def. Exh. E. Under
California Code of Civil Procedure section 2923.6(c), (g),
the protection against dual tracking is inapplicable to
plaintiff because of the prior modification. Plaintiff raises
no argument in his opposition which suggests he can cure the
deficiencies in this claim. The second cause of action should
therefore be dismissed.
In the
third cause of action, plaintiff alleges an amorphous claim
for denial of mortgage assistance. Plaintiff sets forth no
facts in support of this claim and plaintiff’s
opposition does not clarify this claim. To the extent
plaintiff is claiming that defendant failed to produce
requested documents during a loan modification process and
was thus wrongfully denied a modification, there is no right
to a loan modification in the first instance. Cal. Civ. Code
§ 2923.4; see Mabry v. Sup. Ct., 185
Cal.App.4th 208 (2010). It does not appear plaintiff can cure
this claim by amendment.
Finally,
in the fourth cause of action, plaintiff alleges
misrepresentation, contending that he was given conflicting
information. Plaintiff’s allegations do not meet the
specificity pleading requirements of Federal Rule of Civil
Procedure 9(b). In a conclusory fashion, plaintiff alleges
that he was given conflicting information by defendant Wells
Fargo regarding a HAMP mortgage modification. Plaintiff sets
forth none of the “who, what, when, where, and
how” of the misconduct giving rise to misrepresentation
claim. Plaintiff presents no argument indicating that he
could cure these deficiencies or which would suggest
amendment of this claim would be anything other than futile.
Accordingly,
IT IS HEREBY ORDERED that defendant’s request for
judicial ...