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Dowers v. Nationstar Mortgage, LLC

United States Court of Appeals, Ninth Circuit

March 31, 2017

Dale Dowers; Debra Dowers, Plaintiffs-Appellants,
v.
Nationstar Mortgage, LLC; Wells Fargo Bank, NA; Wells Fargo Bank Minnesota, NA, Trustee Banc of America Alternative Loan trust series 2003-2007, Defendants-Appellees.

          Argued and Submitted December 15, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding D.C. No. 2:14-cv-01679-JCM-PAL

          Mark C. Fields (argued), Law Offices of Mark C. Fields, Los Angeles, California, for Plaintiffs-Appellants.

          Ariel 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.

         SUMMARY [*]

         Home Loans

         The 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.

         Affirming 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.

         The 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.

          The 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.

          OPINION

          GOULD, Circuit Judge:

         Plaintiffs 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.

         I

         A

         In May 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").[1] 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.

         On 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 ...


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