Charles v. Ocwen Loan Servicing, LLC
| Decision Date | 03 March 2016 |
| Docket Number | No. 1:15-cv-01451-DAD-JLT,1:15-cv-01451-DAD-JLT |
| Parties | DONALD CHARLES and THERESA M. BLAIR, Plaintiffs, v. OCWEN LOAN SERVICING, LLC, NATIONWIDE CREDIT INC., U.S. BANK NATIONAL ASSOCIATION, and DEUTSCHE BANK NATIONAL TRUST COMPANY, as indenture trustee under the indenture dated as of March 1, 2006 Accredited Mortgage Loan Trust 2006-1, Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER GRANTING MOTION TO DISMISS, DISMISSING THE FIRST AMENDED COMPLAINT WITH PREJUDICE, DENYING PLAINTIFF'S MOTION FOR LEAVE TO AMEND AND DIRECTING CLERK TO CLOSE CASE
Plaintiffs filed a complaint in the instant case on September 24, 2015. (Doc. No. 1.) Following a motion to dismiss filed by defendants Ocwen Loan Servicing, Nationwide Credit Inc., and U.S. Bank National Association1 (hereinafter "defendants") on November 23, 2015 (Doc. No. 4), plaintiffs filed a first amended complaint ("FAC") on December 4, 2015. (Doc. No. 10.) Defendants filed a motion to dismiss the FAC on December 30, 2015. (Doc. No. 15.) Plaintiffs did not file an opposition to the motion to dismiss. A hearing was held on March 1,2016. (Doc. No. 21.) At that hearing pro se plaintiffs Donald Blair and Theresa Blair appeared telephonically on their own behalf and attorney Nicole King appeared telephonically on behalf of defendants. For the reasons discussed below, the court will grant defendants' motion to dismiss.2
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'lv. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. See also Iqbal, 556 U.S. at 676 (). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiffs' complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Additionally, the court may consider arguments that the complaint is time-barred on a motion to dismiss, provided it does so with the required liberality in construing pleadings in favor of the plaintiffs and does not require the court to consider evidence beyond the plaintiffs' initial filings. See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980); E.E.O.C. v. ABM Industries Inc., 249 F.R.D. 588, 591 (E.D. Cal. 2008). Compare Bates v. Bankers Life and Cas. Co. , 993 F. Supp. 2d 1318, 1352 (D. Ore. 2014) ().
Plaintiffs' FAC raised four claims, one against each defendant, for violation of the Fair Debt Collection Practices Act ("FDCPA"). (Doc. No. 10, at 1-21.) The FAC alleges each of the defendants is a debt collector as defined in 15 U.S.C. § 1692a, and that there "is no evidence, indication or record that the defendant is part of the chain of title for the note and trust deed that are the subject matter of this complaint." (See, e.g., Doc. No. 10, at 17.) Further, in their FAC plaintiffs allege the defendants engaged in "unfair and deceptive collection practices involving collateral against which the defendant have falsely asserted various rights or claims." (Id.) According to the FAC, defendants "began sending written communication to the plaintiff stating [they were] representing various parties having rights under the same trust deed," and ultimately "complete[d] a foreclosure sale of the plaintiff's property." (See, e.g., id. at 18-19.) "The purported debt is not a debt held or collected under the name of the defendant," per the FAC, andthe defendants made false representations regarding their status as the holder of the notes in question, the amount allegedly owed, and the defendants' right to foreclose against the plaintiffs' home. (See, e.g., id. at 19.) Further, plaintiffs allege in the FAC that the defendants purportedly refused to provide an accounting of the unpaid balances, falsely represented the names of the creditors to whom the debt was owed, threatened to undertake a foreclosure action despite having no right to do so, falsified documents so they appeared to be issued by "a court, official, or agency of the United States or the state" (though which state in particular is not specified), and falsely represented that the plaintiffs' credit accounts were sold for value. (See, e.g., id. at 20.) At hearing on the pending motion to dismiss, plaintiffs clarified that their complaint is essentially that they did not borrow money from the named defendants, who now represent that they own the debt and corresponding mortgage and are attempting to collect the debt and/or foreclose on the property pursuant to the mortgage. Plaintiffs allege that the simple fact defendants are attempting to do these things violates the FDCPA.
Additionally, plaintiffs have raised four claims — again, one against each defendant — alleging "identity theft." (Doc. No. 10, at 21-44.) These claims, which are substantively identical, save for the named defendants, allege generally that plaintiffs have "a right to keep [their] private information and records from third parties" and "a right to rely upon the third party to only request such information for legitimate and legal purposes." (See, e.g., Doc No. 10, at 36.) Plaintiffs further allege that each defendant "falsely presented itself and impersonated itself to the plaintiff as another person to obtain the plaintiff's property." (See, e.g., id.) According to the FAC, defendants "had an affirmative duty to disclose the purposes for which it coerced plaintiff's [sic] banking, personal, financial and identifying information," and "intentionally and willfully violated the plaintiff's [sic] rights to privacy and to keep his private and personal records private." (See, e.g., id, at 36-37.) According to plaintiffs' FAC, defendants are "using the plaintiff's [sic] private identifying information for the purpose of taking the plaintiff's [sic] home as if [they] had the right as a creditor of the plaintiff to foreclose." (See, e.g., id., at 37.) Further, per the FAC, the defendants intend "to use the plaintiff's [sic] private information to sell or trade with third parties." (See, e.g., id.)
Plaintiffs have cited neither statutes nor cases in these claims for "identity theft." (See Doc. No. 10, at 21-44.) Plaintiff Donald Blair clarified at the hearing that plaintiffs' claim for identity theft is simply based on their allegation that they did not provide defendants with any personal information, and yet defendants apparently possess it, and therefore identity theft must have occurred.
Finally, the FAC includes one count against Deutsche Bank for damages under 15 U.S.C. § 1635. (Doc. No. 10, at 45.) For reasons discussed below, all of plaintiffs' claims against Deutsche Bank will be dismissed since that defendant has not been served.
Defendants move to dismiss the FAC, pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Doc. No. 15.) Concerning plaintiffs' FDCPA claims, defendants maintain they should be dismissed for four reasons: (1) the plaintiffs' claims are time-barred; (2) defendants Ocwen Loan Servicing, Nationwide Credit Inc., and U.S. Bank National Association are not debt collectors under the FDCPA; (3) foreclosure related conduct is not subject to the FDCPA; and (4) in their FAC plaintiffs have failed to allege any specific facts which, if proven, would show that the FDCPA has been violated. (Doc. No. 15, at 12-18.) Concerning plaintiffs' identity theft claims, defendants move to dismiss under Rule 12(b)(6), noting that plaintiffs have not specified any legal theory under which they could recover for "identity theft" against the defendants. (Doc. No. 15, at 18.)
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