and Submitted December 15, 2016 San Francisco, California
from the United States District Court for the District of
Nevada James C. Mahan, District Judge, Presiding D.C. No.
C. Fields (argued), Law Offices of Mark C. Fields, Los
Angeles, California, for Plaintiffs-Appellants.
Stern (argued) and Natalie L. Winslow, Akerman LLP, Las
Vegas, Nevada, for Defendants-Appellees.
Before: Diarmuid F. O'Scannlain, Ronald M. Gould, and
Milan D. Smith, Jr., Circuit Judges.
panel affirmed in part and reversed in part the district
court's Fed.R.Civ.P. 12(b)(6) dismissal of
plaintiffs' action asserting claims relating to the
defendants' servicing of plaintiffs' home loan.
in part, the panel held that plaintiffs' Fair Debt
Collection Practices Act claims under 15 U.S.C. §§
1692c(a)(2), 1692d, and 1692e failed because the defendants
did not engage in "debt collection" and were not
acting as "debt collectors." Reversing in part, the
panel disagreed with the district court's dismissal with
respect to the claim under 15 U.S.C. § 1692f(6), and
held that that provision governed defendants' alleged
conduct because it expressly applied to the enforcement of
security interests such as a deed of trust. The panel
concluded that the district court should not have dismissed
Count Four on the ground that Nationstar Mortgage, LLC was
engaging in conduct related to non-judicial foreclosure.
panel held that the district court correctly dismissed
plaintiffs' claim of intentional infliction of emotional
distress. The panel concluded that plaintiffs'
allegations did not meet the first element of extreme and
outrageous conduct for such a claim under Nevada law.
panel held that the district court properly dismissed
plaintiffs' claim of a violation of the Nevada Deceptive
Trade Practices Act. The panel agreed with the district
court's prediction that the Supreme Court of Nevada would
hold that real estate loans did not fall within the Act.
Dale and Debra Dowers filed this action against Defendants
Nationstar Mortgage, LLC ("Nationstar"), Wells
Fargo Bank, N.A. ("WFB"), and Wells Fargo Bank
Minnesota, N.A. ("WFB Minnesota"), asserting claims
relating to Defendants' servicing of Plaintiffs' home
loan. Plaintiffs alleged violations of the Fair Debt
Collection Practices Act ("FDCPA"), intentional
infliction of emotional distress ("IIED"), and a
violation of the Nevada Deceptive Trade Practices Act
("DTPA"). The district court dismissed
Plaintiffs' complaint. With respect to the FDCPA claims,
the district court found that Plaintiffs did not state a
claim for relief because Defendants' alleged conduct was
a non-judicial foreclosure attempt, not debt collection. We
affirm the district court except for its dismissal of Count
Four, which asserts a violation of 15 U.S.C. § 1692f(6).
That provision-unlike the other three FDCPA provisions under
which Plaintiffs allege violations-governs a "business
the principal purpose of which is the enforcement of security
interests." 15 U.S.C. § 1692a(6). Because
Plaintiffs allege conduct related to the enforcement of a
security interest, that claim should not have been dismissed
on the ground that Defendants were not collecting a debt.
2003, Plaintiffs refinanced a loan on their Las Vegas home by
executing a Note and Deed of Trust with Bank of America, N.A.
("Bank of America"). In August 2003, Bank of America
assigned the Note to WFB Minnesota. On January 28, 2010,
ReconTrust Company, N.A. ("ReconTrust"), acting as
Bank of America's agent, recorded a notice of default on
Plaintiffs' loan. The next day, Bank of America assigned
the Deed of Trust to WFB Minnesota, and WFB Minnesota
substituted ReconTrust as the trustee under the Deed of
Trust. On April 12, 2010, Plaintiffs filed a voluntary
petition for protection under Chapter 7 of the Bankruptcy
Code, and on July 21, 2010, they received a discharge under
11 U.S.C. § 727.
September 23, 2013, Bank of America, acting "as attorney
in fact" for WFB, substituted MTC Financial, Inc., doing
business as Trustee Corps ("Trustee Corps"), as the
trustee under the Deed of Trust. A week later, Trustee Corps
recorded a notice of default on Plaintiffs' loan. On
November 13, 2013, Nationstar sent Plaintiffs a letter
stating that ...