Calove v. Nationstar Mortg., LLC, Case No. 2:14-cv-01329-JAD-NJK
| Decision Date | 24 July 2015 |
| Docket Number | Case No. 2:14-cv-01329-JAD-NJK |
| Parties | MARINA CALOVE, Plaintiff(s), v. NATIONSTAR MORTGAGE, LLC, Defendant(s). |
| Court | U.S. District Court — District of Nevada |
Pending before the Court is Defendant's Motion to Dismiss. Docket No. 21. Plaintiff filed a response in opposition and Defendant filed a reply. Docket Nos. 25, 26. This motion has been referred to the undersigned by the assigned district judge. The Court finds the motion properly resolved without oral argument. See Local Rule 78-2. Having reviewed the materials submitted and for the reasons discussed below, the Court hereby GRANTS the motion to dismiss with leave to amend.1
Plaintiff is the owner of the property located in Henderson, Nevada, which she originally purchased in 1999 for $172,054. Docket No. 21-1. On July 30, 2002, Plaintiff quitclaimed the property to her daughter. See Docket No. 21-2. In September 2004, Plaintiff "repurchased" the home from her daughter for $370,000. Docket No. 21-3. On October 5, 2005, Plaintiff executed a promissory note for $333,750, which was secured by a first deed of trust for the benefit of First Mortgage Corporation.Docket No. 21-4. The deed of trust named Mortgage Electronic Registration Systems, Inc. ("MERS") as beneficiary and Hacienda Service Corporation as trustee. Id. The deed of trust further stated that the servicer or beneficiary of the loan may change throughout the life of the loan. Id. ¶ 20.
On October 7, 2009, MERS executed a Corporate Assignment of Deed of Trust assigning certain of its rights and interests to Aurora Loan Services. Docket No. 21-5. The assignment was recorded on July 1, 2010. Id. On September 18, 2012, MERS executed an Assignment of Deed of Trust assigning certain of its rights and interests to Nationstar. Docket No. 21-6. The assignment was recorded on September 25, 2012. Id.2
On August 14, 2014, Plaintiff filed a complaint against Nationstar alleging claims for invasion of privacy, negligent hiring and supervision of employees, violations of the Fair Credit Report Act, and violations of the Fair Debt Collection Act. Docket No. 1. Nationstar now moves to dismiss Plaintiff's claims pursuant to Rule 12(b)(6). Docket No. 21.
Rule 12(b)(6) provides for dismissal of a complaint for failure to state a claim upon which relief can be granted.3 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. Of America, 232 F.3d 719, 723 (9th Cir. 2000). A properly pled complaint must provide a short and plain statement of the claim showing that the pleader is entitled to relief. Rule 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Courts must accept as true all well-pled factual allegations contained in the complaint, but the same requirement does notapply to legal conclusions. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 678. Moreover, where the claims in the complaint have not crossed the line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) ().
As an initial matter, the Court notes that Plaintiff's complaint appears to have been largely cut-and-pasted from a form complaint filed by plaintiffs in other cases that have been rejected by those courts in ruling on motions to dismiss. See Hernandez v. Wells Fargo Home Mortgage, 2015 WL 1204985, *2 (D. Nev. Mar. 16, 2015) (Mahan, J.) (). Plaintiff's claims in this case fail for largely the same reasons identified by Judge Mahan in Hernandez. Nonetheless, the Court will separately address each of Plaintiff's claims below.
Plaintiff's first cause of action is a claim for violation of the Federal Credit Reporting Act ("FCRA"), alleging that Defendant is a "credit furnisher" to which 15 U.S.C. § 1681s-2(b) applies.4 Plaintiff alleges that Defendant reported inaccurate or erroneous information about her. See Compl. at ¶¶ 15, 21. To state such a claim under the FCRA, the plaintiff must allege that (1) the furnisher provided inaccurate information to the credit reporting agency ("CRA"); (2) the CRA notified the furnisher of adispute; and (3) the furnisher failed to conduct a reasonable investigation into the accuracy of the disputed information based on the information provided to it by the CRA. Middleton v. Plus Four, Inc., 2014 WL 910351, *3 (D. Nev. Mar. 7, 2014) (citing Gorman, 584 F.3d at 1154). Plaintiff's complaint fails to state a claim under the FCRA for several reasons.
First, the Ninth Circuit has made clear that an actual inaccuracy must exist for the plaintiff to state a claim. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 890 (9th Cir. 2010). While Plaintiff's complaint refers to inaccurate information being reported, the complaint fails to plead any facts regarding what information was erroneous. Moreover, to the extent Plaintiff contends the existence of a debt is the inaccuracy, the Court takes judicial notice of the documents indicating that a debt existed which renders the existence of the debt beyond reasonable dispute. See Hernandez, 2015 WL 1204985, at *3.
Second, as noted above, a claim under the FCRA requires the Plaintiff to allege that the CRA notified the furnisher of a dispute. Such an allegation is absent from Plaintiff's complaint, so Plaintiff's claim must fail because there is not an event triggering Defendant's duty under the FCRA. Cf. Cave, 2015 WL 3832252, at *3.
For these reasons, Plaintiff's FCRA claim fails.
Plaintiff next attempts to bring a claim for invasion of privacy, alleging generally that Defendant improperly obtained her personal and private information. See Compl. at ¶ 26. Plaintiff further alleges that Defendant "may be guilty of identity theft under the state and federal law." Id. To state a claim for invasion of privacy, the plaintiff must allege: (1) an intentional intrusion by the defendant; (2) on the solitude or seclusion of the plaintiff; (3) that would be highly offensive to the reasonable person. See, e.g., Hernandez, 2015 WL 1204985, at *4. "The tort also has a public disclosure requirement, which contemplates disclosure to more than individuals or small groups." Id. (citing Kuhn v. Account Control Tech., Inc., 865 F. Supp. 1443, 1448 (D. Nev. 1994)). Plaintiff's complaint fails to state a claim for invasion of privacy for several reasons.
First, Plaintiff's state law claim is preempted by federal law. "Courts have interpreted [15 U.S.C.] § 1681t(b)(1)(F) to preclude all state common law and statutory claims, to effect Congress'intent to limit a plaintiff's recovery against furnishers of credit information to only the remedies provided under the FCRA." O'Connor, 2014 WL 2215965, at *8 (quoting Miller v. Bank of Am., Nat. Ass'n, 858 F. Supp. 2d 1118, 1124 (S.D. Cal. 2012)). Plaintiff's claim in this case is that Defendant is a debt collector that improperly obtained her social security number, a claim that is squarely preempted by federal law. See, e.g., Hernandez, 2015 WL 1204985, at *4.
Second, even if Plaintiff's claim were not preempted, Plaintiff has failed to allege sufficient facts to state a claim for relief. Plaintiff has not alleged facts of any "intentional intrusion" at all, let alone one that is "highly offensive" to a reasonable person. To the contrary, it appears that Defendant is the beneficiary of Plaintiff's loan, which logically means that Defendant would have access to her social security number as a creditor. Cf. id.
For these reasons, Plaintiff's invasion of privacy claim fails.
Plaintiff next asserts a claim for "negligent, wanton, and/or intentional hiring supervision of incompetent employees or agents." See Compl. at ¶¶ 28-30. To state a claim for negligent training and supervision, a "plaintiff must show (1) a general duty on the employer to use reasonable care in the training and/or supervision of employees to ensure that they are fit for their positions; (2) breach; (3) injury; and (4) causation." Cave, 2015 WL 3832252, at *4. "Claims for negligent training and supervision are based upon the premise that an employer should be liable when it places an employee, who it knows or should have known behaves wrongfully, in a position in which the employee can harm someone else." Okeke v. Biomat USA, Inc., 927 F. Supp. 2d 1021, 1028 (D. Nev. 2013). Nonetheless, an employee's wrongful behavior does not, standing alone, give rise to a claim for negligent training and supervision. Id. Claims for negligent hiring depend on an employer breaching its "general duty to conduct a reasonable background check on a potential employee to ensure that the employee is fit for the position." Hernandez, 2015 WL 1204985, at *5 (quoting Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 1227 (1996)). Plaintiff's complaint fails to state a claim for negligent hiring and supervision for several reasons.
Plaintiff did not plead any facts establishing that Defendant "owed [her] a duty of care, as [s]he does not name specific employees, does not identify the alleged incompetence, or...
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