Bozetti v. U.S. Bank, N.A.
| Decision Date | 03 September 2015 |
| Docket Number | 3:15-cv-00278-RCJ-VPC |
| Parties | MELINA C. BOZETTI, Plaintiff, v. US BANK, N.A., Defendant. |
| Court | U.S. District Court — District of Nevada |
This case arises out of foreclosure proceedings initiated by Defendant, Bank of America N.A. ("BANA"), against Plaintiff, Melina Bozzetti. Pending before the Court is Defendant's Motion to Dismiss (ECF No. 7). For the reasons given herein, the Court grants the Motion.
On July 9th, 2008, Plaintiff executed a deed of trust in favor of Wells Fargo Bank, N.A. on real property located at 1285 7th St., Elko, NV 89801 ("the Property"). The deed of trust secured a promissory note executed by Plaintiff in favor of Wells Fargo for the amount of $157, 528.00 and was recorded on July 11, 2008. (Deed of Trust 1, ECF No. 2 at 27.) At some point, BANA was assigned the note through a merger with BAC Home Loans Servicing, LP. BANA began servicing the loan on August 15, 2008.1 (Apr. 29, 2015 Letter, ECF No. 2 at 83.)
On October 20, 2014, BANA sent Plaintiff a letter indicating that her loan payment was past due and that her property may be referred to foreclosure. (Oct. 20, 2014 Letter, ECF No. 2 at 63.) BANA then sent Plaintiff a letter on November 4, 2014, requesting that she correct and verify her Tax Identification Number ("TIN") for its records. (Nov. 4, 2014 Letter, ECF No. 2 at 40.) Plaintiff provided a corrected number and also requested information regarding her loan and the authority by which BANA was entitled to such information. (Nov. 2014 Letter, ECF No. 2 at 42.) On December 2, 2014, BANA requested that Plaintiff verify her TIN by providing a Social Security card, a photo I.D., and a signed W-9. (Dec. 2, 2014 Letter, ECF No. 2 at 41.) BANA sent another letter on December 10, 2014, in response to Plaintiff's request for information about her loan. This letter concludes with information regarding BANA's payment assistance program, instructing Plaintiff that if she contacted the program she would need to provide financial information including recent bank statements. (Dec. 10, 2014 Letter, ECF No. 2 at 75.)
BANA referred the loan to foreclosure on December 23, 2014. (Apr. 29, 2014 Letter.) Plaintiff responded with letters indicating that she did not believe that BANA had authority to foreclose on her Property and that she believed BANA had stolen her personal information and was attempting to defraud her. (Mar. 16, 2015 Letter, ECF No. 2 at 79; Apr. 30, 2015 Letter, ECF No. 2 at 90.) On April 30, 2015, Plaintiff also sent BANA a notice to rescind her obligation under the deed of trust. (Rescission Notice, ECF No. 2 at 94.) Finally, BANA notified Plaintiff that a foreclosure sale date had been set for June 10, 2015. (May 8, 2015 Letter, ECF No. 2 at 85.)
Plaintiff filed suit on May 26, 2015, claiming three counts against Defendant: 1) violations of the Fair Debt Collection Practices Act ("FDCPA") under 15 U.S.C. § 1692; 2) identity theft; and 3) violations of the Truth in Lending Act ("TILA") under 15 U.S.C. §§ 1635 and 1640. Defendant has moved to dismiss, and as of the docketing of this Order, Plaintiff has not filed a response to Defendant's Motion. The Court has construed Plaintiff's pro se pleadings liberally according to its duty. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (); see also Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (); Christensen v. CIR, 786 F.2d 1382, 1384 (9th Cir. 1986) (). Because Plaintiff is acting pro se and is the non-moving party, she is "entitled to the interpretation most favorable to her position." Zakarian v. Option One Mortg. Corp., 642 F. Supp. 2d 1206, 1214 (D. Haw. 2009).
A. Dismissal for Failure to State a Claim
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) forfailure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts pertaining to his own case making a violation "plausible," not just "possible." Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009) (citing Twombly, 550 U.S. at 556) ("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."). That is, under the modern interpretation of Rule 8(a), a plaintiff must not only specify or imply a cognizable legal theory (Conley review), but also must allege the facts of his case so that the court can determine whether the plaintiff has any basis for relief under the legal theory he has specified or implied, assuming the facts are as he alleges (Twombly-Iqbal review). Put differently, Conley only required a plaintiff to identify a major premise (a legal theory) and conclude liability therefrom, but Twombly-Iqbal requires a plaintiff additionally to allege minor premises (facts of the plaintiff's case) such that the syllogism showing liability is logically complete and that liability necessarily, not only possibly, follows (assuming the allegations are true).
Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).
The Court grants Defendant's Motion to Dismiss. Under Local Rule 7-2(d), "the failure of a party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion." As of the docketing of this Order, Plaintiff has not filed a response to Defendant's Motion; thus, Plaintiff consents to the Court granting the Motion to Dismiss. While the Court also finds on the merits that Plaintiff's pleading fails to state a claim, the Court wishes to emphasize at the outset that it will enforce its local rules where applicable.
"To plead entitlement to relief under the FDCPA, Plaintiffs here must allege facts that 1) Defendant was collecting debt as a debt collector, and 2) its debt collection actions were violative of a federal statute." Schlegel v. Wells Fargo Bank, N.A., 799 F. Supp. 2d 1100, 1103 (N.D. Cal. 2013), aff'd, 720 F.3d 1204 (9th Cir. 2013) (citing Jerman v. Carlisle, 559 U.S. 573, 576 (2010)); U.S.C. § 1692 et seq.). A "debt collector" is any person whose "principle purpose" is the collection of debts or any person who regularly collects debts owed to another. 15 U.S.C. § 1692a(6). Under 15 U.S.C. § 1692a(6)(F), "a debt collector does not include a loan servicer as long as the loan was not in default when it was assigned to the loan servicer." See Natividad v. Wells Fargo Bank, N.A., No. 3:12-cv-03646 JSC, 2013 WL 2299601, at *4 (N.D. Cal. May 24, 2013) (collecting cases); see also Huck v. Countrywide Home Loans, Inc., No. 3:09-cv-553 JCM VPC, 2011 WL 3274041, at *2 (D. Nev. July 29, 2011) (citing Kee v. R-G Crown Bank, 656 F. Supp. 2d 1348, 1354 (D. Utah 2009)).
Plaintiff does not allege any facts beyond the conclusory statement that BANA is a debt collector under 15 U.S.C. § 1692a; Plaintiff fails to allege that BANA's "principle purpose" is to collect debts or that BANA was assigned the deed of trust after Plaintiff had defaulted. (Compl. 6, ECF No. 2 at 1.) Because Plaintiff has failed to state facts beyond conclusory allegations, the pleading is insufficient. Iqbal, 556 U.S. 662 at 677-79.
Plaintiff...
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