Snell v. Deutsche Bank Nat'l Trust Co.

• Decision Date: 26 March 2015
• Docket Number: No. 2:13-cv-2178 DAD,2:13-cv-2178 DAD
• Court: U.S. District Court — Eastern District of California
• Parties: AMOS G. SNELL, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, et al., Defendants.

AMOS G. SNELL, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, et al., Defendants.

No. 2:13-cv-2178 DAD

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

March 26, 2015

ORDER

This matter came before the court on December 19, 2014, for hearing of defendants' motion for judgment on the pleadings.¹ (Dkt. No. 28.) Attorney Jonathan Fink appeared telephonically on behalf of the defendants and attorney Megan Daily appeared telephonically on behalf of the plaintiff. For the reasons set forth below, defendants' motion will be granted.

BACKGROUND

According to the allegations of the complaint, on June 14, 2005, plaintiff obtained a loan and recorded a Deed of Trust against the real property located at 2808 Olivewood Lane in Vallejo, California ("Subject Property"). (Compl. (Dkt. No. 1) at 2-3.²) WMC Mortgage Corp.("WMC") was the original lender and Mortgage Electronic Registration Systems, Inc., ("MERS"), was named "as Nominee for Lenders." (Id. at 3.) WMC, however, ceased doing business in 2007. (Id.)

On April 9, 2008, Quality Loan Service Corporation, ("Quality Loan"), "as an agent for the beneficiary," recorded a Notice of Default in the Solano County Recorder's Office, "signaling the commencement of the foreclosure process." (Id.) On May 12, 2008, an Assignment of Deed of Trust was recorded in the Solano County Recorder's Office, purporting to "convey the beneficial interest in Plaintiff's Deed of Trust to Deutsche Bank, as Trustee for GSAMP Trust 2005-WMCI." (Id.)

On May 21, 2008, Deutsche Bank recorded a Substitution of Trustee naming Quality Loan as Trustee. (Id. at 4.) Thereafter, notices of Trustee's Sale were recorded in the Solano County Recorder's Office on October 31, 2008, January 1, 2010, March 16, 2011, November 16, 2011, and February 15, 2012. (Id.)

On March 29, 2012, a second Assignment of Deed of Trust was recorded in the Solano County Recorder's Office. (Id.) In that document, Deutsche Bank, "as Trustee under the Pooling and Servicing Agreement dated as of September 1, 2005, GSAMP," transferred the beneficial interest in plaintiff's property to Deutsche Bank "as of September 1, 2005." (Id.) On October 24, 2012, the Subject Property was sold and a "Trustee's Deed Upon Sale was recorded in the Solano County Recorder's office," conveying title in the Subject Property to Deutsche Bank. (Id. at 5.) On April 11, 2013, Ocwen Loan Servicing ("Ocwen Loan"), executed a Grant Deed, "purporting to grant Plaintiff's property from Deutsche Bank to Next Generation Capital, LLC." (Id.)

Plaintiff filed the complaint in this action on October 18, 2013, pursuant to federal question jurisdiction, alleging violations of state and federal laws against defendants MERS, Quality Loan, Ocwen Loan and Deutsche Bank. On November 12, 2013, defendants Ocwen Loan, MERS and Deutsche Bank filed an answer. (Dkt. No. 6.) On November 13, 2013, defendant Quality Loan filed a motion to dismiss. (Dkt. No. 7.)

On January 29, 2014, the previously assigned District Judge granted defendant QualityLoan's motion to dismiss.³ (Dkt. No. 17.) On February 3, 2014, the previously assigned District Judge reassigned this matter to the undersigned pursuant to the parties' consent. (Dkt. No. 18.) On November 10, 2014, defendants Ocwen Loan, MERS and Deutsche Bank ("defendants"), filed a motion for judgment on the pleadings. (Dkt. No. 28.) Plaintiff filed an opposition to the motion on December 5, 2014. (Dkt. No. 31.) Defendants filed a reply in support of the motion for judgment on the pleadings on December 12, 2014. (Dkt. No. 35.)

STANDARDS

Rule 12(c) of the Federal Rules of Civil Procedure provides that: "After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." In reviewing a motion brought under Rule 12(c), the court "must accept all factual allegations in the complaint as true and construe them in the light most favorable to the nonmoving party." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).

The same legal standard applicable to a Rule 12(b)(6) motion applies to a Rule 12(c) motion. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). Accordingly, "„[a] judgment on the pleadings is properly granted when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law.'" Marshall Naify Revocable Trust v. U.S., 672 F.3d 620, 623 (9th Cir. 2012) (quoting Fajardo v. Cnty. of L.A., 179 F.3d 698, 699 (9th Cir. 1999)). See also Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009) ("Judgment on the pleadings is properly granted when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law."). The allegations of the nonmoving party must be accepted as true, while any allegations made by the moving party that have been denied or contradicted are assumed to be false. MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006). The facts are viewed in the light most favorable to the non-moving party and all reasonable inferences are drawn in favor of that party. Living Designs, Inc. v. E.I. DuPont de Nemours & Co., 431 F.3d 353, 360 (9th Cir. 2005).

ANALYSIS

Plaintiff's complaint alleges three causes of action pursuant to federal law: (1) violation of the Fair Debt Collection Practices Act ("FDCPA"); (2) a RICO claim; and (3) violation of the Truth In Lending Act ("TILA). See Snell v. Deutsche Bank Nat. Trust Co., No. 2:13-cv-2178 MCE DAD, 2014 WL 325147, at *3 (E.D. Cal. Jan. 29, 2014) ("Plaintiff alleges three claims based on federal law; the remaining five claims are based on state law.").

I. Fair Debt Collection Practices Act

Plaintiff's complaint alleges that the defendants "are debt collectors within the meaning of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692." (Compl. (Dkt. No. 1) at 23.) In this regard, plaintiff alleges that the defendants "regularly collect[] or attempt[] to collect . . . debts owed . . . or due to another," and "hold themselves out to have interests in Plaintiff's Loan and Deed of Trust . . . ." (Id.) Defendants seek judgment on the pleadings based, in part, on the assertion that "[n]othing in the complaint suggest that these Defendants are 'debt collectors' within the meaning of the" FDCPA. (Defs.' Mot. JOTP (Dkt. No. 28) at 31.)

The FDCPA, 15 U.S.C. § 1692, et seq., regulates conduct between consumers and "debt collectors." See Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 576 (2010); Rowe v. Education Credit Mgmt. Corp., 559 F.3d 1028, 1031 (9th Cir. 2009). In this regard, "in order for a plaintiff to recover under the FDCPA, there are three threshold requirements: (1) the plaintiff must be a 'consumer'; (2) the defendant must be a 'debt collector'; and (3) the defendant must have committed some act or omission in violation of the FDCPA." Robinson v. Managed Accounts Receivables Corp., 654 F. Supp.2d 1051, 1057 (C.D. Cal. 2009). Under the FDCPA, a debt collector is one who "uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6).

"Although the Ninth Circuit has not addressed whether foreclosure proceedings constitute debt collection within the ambit of the FDCPA, courts in this Circuit have regularly held thatnonjudicial foreclosure is not debt collection." Rockridge Trust v. Wells Fargo, N.A., 985 F. Supp.2d 1110, 1136 (N.D. Cal. 2013). See also Aguirre v. Cal-Western Reconveyance Corp., No. CV 11-6911 (AGRx), 2012 WL 273753, at *7 (C.D. Cal. Jan. 30, 2012) ("law is well-settled that creditors, mortgagors, and mortgage servicing companies are not debt collectors and are statutorily exempt from liability under the FDCPA"); Lal v. American Home Servicing, Inc., 680 F. Supp.2d 1218, 1224 (E.D. Cal. 2010) ("The law is well settled that FDCPA's definition of debt collector does not include the consumer's creditors, a mortgage servicing company, or any assignee of the debt."); Mansour v. Cal-Western Reconveyance Corp., 618 F. Supp.2d 1178, 1182 (D. Ariz. 2009) ("The Court finds the legislative history and the legal authority discussed above to be persuasive, and therefore finds that none of the Defendants (an assignee, a servicing company, and a fiduciary) is a 'debt collector' as defined in the FDCPA. The Court further finds that the non-judicial foreclosure proceeding at issue is not an attempt to collect a 'debt' for FDCPA purposes.").

Moreover, plaintiff's complaint fails to allege any facts from which the court could infer that any defendants' principal purpose is debt collection. See Schlegel v. Wells Fargo Bank, NA, 720 F.3d 1204, 1209 (9th Cir. 2013) ("The complaint fails to provide any factual basis from which we could plausibly infer that the principal purpose of Wells Fargo's business is debt collection. Rather, the complaint's factual matter, viewed in the light most favorable to the Schlegels, establishes only that debt collection is some part of Wells Fargo's business, which is insufficient to state a claim under the FDCPA."); Fiorilli v. Wells Fargo Bank, N.A., No. C-14-0557 (DMR), 2014 WL 5454396, at *2 (N.D. Cal. Oct. 27, 2014) ("This conclusory assertion is insufficient because Plaintiff must plead the 'factual content' necessary to support a reasonable inference that Defendant is a 'debt collector.'"); O'Connor v. Wells Fargo, N.A., No. C-14-0211 DMR, 2014 WL 4802994, at *3 (N.D. Cal. Sept. 26, 2014) ("According to the allegations in the complaint and judicially noticeable facts, Plaintiff took out a mortgage loan from Wells Fargo's predecessor, and Wells Fargo attempted to collect funds related to that loan. These facts do not make Wells Fargo a debt collector for purposes of the FDCPA. The complaint fails...