Pugh, et al v. Wells Fargo Bank N.A., et al
Filing
14
ORDER signed by Judge Garland E. Burrell, Jr on 10/17/13 ORDERING For the stated reasons, judgment shall be entered in favor of Defendant Wells Fargo Bank, N.A. on Plaintiffs' claims alleged under the Federal Debt Collection Practices Act. Plaintiffs' state claims are dismissed under 28 U.S.C. § 1367(c)(3). CASE CLOSED.(Becknal, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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NORMA J. and JESSE N. PUGH,
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2:13-cv-01617-GEB-DAD
Plaintiff,
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13
No.
v.
ORDER
WELLS FARGO BANK, N.A.; THE
BANK OF NEW YORK MELLON F/K/A
THE BANK OF NEW YORK AS
TRUSTEE FOR WORLD SAVINGS
REMIC 24, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES
2006-24 TRUST,
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Defendants.
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Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) moves
19
20
under
21
dismissal
22
Verified Complaint. Plaintiffs allege claims against Wells Fargo
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under California law and under the federal Fair Debt Collection
24
Practice Act (“FDCPA”).
25
Federal
of
Rule
all
of
Civil
claims
Procedure
alleged
(“Rule”)
against
it
in
12(b)(6)
for
Plaintiffs’
I. JURISDICTION
26
Subject matter jurisdiction is examined since a federal
27
court has a “duty” to ensure it has subject matter jurisdiction
28
over an action. United Investors Life Ins. Co. v. Waddell & Reed
1
1
Inc.,
2
district
3
jurisdiction . . . sua sponte, whether the parties raised the
4
issue or not”). Plaintiffs assert subject matter jurisdiction is
5
premised
6
(“Compl.”), ECF No. 2, ¶ 4.) Specifically, Plaintiffs aver they
7
“reside, and are domiciled, in California” (Id. ¶ 1); Defendant
8
Bank
9
Delaware” and “its main offices” are “located” in New York (Id.
10
¶ 3); and Defendant Wells Fargo’s “main office [is] located in
11
Sioux
12
Association.” (Id. ¶ 2.)
360
of
F.3d
960,
967
(9th
Cir.
court
had
a
duty
to
on
New
Falls,
13
diversity
York
Mellon
South
However,
of
Dakota
complete
2004)
(stating
establish
citizenship.
“is
designated
diversity
subject
(Verified
incorporated
as
that
in
in
does
the
its
not
“the
matter
Compl.
State
Articles
exist
of
of
between
14
Plaintiffs and all Defendants because this Court has previously
15
determined
16
California as well as a citizen of South Dakota.” Gosal v. Wells
17
Fargo Bank, N.A., No. 2:12-cv-02024-GEB-CKD, 2012 WL 4961696, at
18
*2 (E.D. Cal. Oct. 15, 2012) (quoting Taheny v. Wells Fargo Bank,
19
N.A., 878 F. Supp. 2d 1093, 1109 (E.D. Cal. 2012) (relying on Am.
20
Sur. Co. v. Bank of Cal., 133 F.2d 160, 162 (9th Cir. 1943)).
21
Therefore,
22
diversity jurisdiction.
23
that
Wells
subject
However,
Fargo
matter
“in
jurisdiction,
Bank,
jurisdiction
determining
federal
the
court
is
“a
not
existence
premised
of
on
subject
jurisdictional statutes identified in the complaint. If facts
26
giving the court jurisdiction are set forth in the complaint, the
27
provision
28
pleaded.” K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024,
2
not
limited
of
25
need
not
citizen
matter
jurisdiction
is
is
24
conferring
a
N.A.
be
to
the
specifically
1
1027 (9th Cir. 2011) (citation omitted) (internal quotation marks
2
omitted).
3
question subject matter jurisdiction, and therefore 28 U.S.C.
4
§ 1367 provides supplemental jurisdiction over Plaintiffs state
5
claims. The portion of the motion challenging Plaintiffs’ FDCPA
6
claims will thus be decided first.
Plaintiffs’
claims
7
the
FDCPA
confer
federal-
II. LEGAL STANDARD
8
9
under
Decision on Defendant’s Rule 12(b)(6) dismissal motion
requires
determination
of
“whether
the
complaint’s
factual
10
allegations, together with all reasonable inferences, state a
11
plausible claim for relief.” United States ex rel. Cafasso v.
12
Gen.
13
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)). “A claim
14
has facial plausibility when the plaintiff pleads factual content
15
that allows the court to draw the reasonable inference that the
16
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
17
at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
18
(2007)).
Dynamics
19
When
C4
Sys.,
637
determining
F.3d
the
1047,
1054
sufficiency
(9th
of
a
Cir.
claim,
2011)
“[w]e
20
accept factual allegations in the complaint as true and construe
21
the
22
party[;
23
conclusions . . . cast in the form of factual allegations.” Fayer
24
v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation omitted)
25
(internal
26
allegations of law and unwarranted inferences are insufficient to
27
defeat a motion to dismiss.” Id. (citation omitted) (internal
28
quotation
pleadings
in
however,
the
light
most
favorable
this
tenet
does
not
quotation
marks
marks
omitted);
omitted).
see
also
3
apply
to
the
to]
.
“Therefore,
Iqbal,
556
non-moving
.
.
legal
conclusory
U.S.
at
678
1
(stating “[a] pleading that offers ‘labels and conclusions’ or ‘a
2
formulaic recitation of the elements of a cause of action will
3
not do’” (quoting Twombly, 550 U.S. at 555)).
4
III. FACTUAL AVERMENTS
5
Plaintiffs’ averments in the Complaint germane to their
6
FDCPA claims are the following. “On July 13, 2006, Plaintiffs
7
executed a Deed of Trust and Adjustable Rate Note ‘Pick-A-Payment
8
Loan.’” (Compl. ¶ 5.) “The original lender and loan servicer was
9
World Savings Bank FSB and the trustee was Golden West Savings
10
Association Service Company.” (Id.)
11
“Golden
West
Financial
Corporation
was
the
parent
12
company of World Savings Bank, FSB,” the original lender and
13
servicer. (Id. ¶ 6.) “On or about May 6, 2007, Wachovia Bank
14
acquired Golden West Financial.” (Id.) “After Wells Fargo Bank,
15
N.A. acquired Wachovia in 2008, Wells Fargo Home Mortgage, a
16
division
17
Plaintiffs’ loan.” (Id. ¶ 7.)
18
of
Wells
Fargo,
assumed
the
role
of
servicer
of
Plaintiffs assert that Wells Fargo violated 28 U.S.C.
19
§ 1692e
20
representations, and § 1692f of the FDCPA, which prohibits unfair
21
practices,
22
“identif[ing]
23
representations
24
foreclosure activity against Plaintiffs and to collect mortgage
25
payments and associated fees and costs from them.” (Id. ¶ 37.)
26
27
28
of
the
FDCPA,
because
Wells
of
which
letters
Fargo
[Well’s
prohibits
“sent
Home
by
false
Wells
Mortgage”
Fargo’s]
or
misleading
Fargo”
“contain
standing
to
and
false
pursue
IV. DISCUSSION
A. Fair Debt Collection Practices Act
Wells Fargo argues, inter alia, that Plaintiffs’ FDCPA
4
1
claims should be dismissed with prejudice “because Wells Fargo is
2
not a ‘debt collector’ within the meaning of the FDCPA.” (Wells
3
Fargo’s Notice Mot. & Mot. Dismiss Compl., 15:17-18, ECF No. 7.)
4
Section 1692e prescribes: “A debt collector may not use
5
any false, deceptive, or misleading representation or means in
6
connection
7
prescribes:
8
unconscionable means to collect or attempt to collect any debt.”
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“Because these prohibitions apply only to ‘debt collector[s]’ as
10
defined by the FDCPA, the [C]omplaint must ‘plead factual content
11
that allows the court to draw the reasonable inference’ that
12
Wells Fargo is a debt collector.” Schlegel v. Wells Fargo Bank,
13
N.A., 720 F.3d 1204, 1208 (9th Cir. 2013) (quoting Iqbal, 556
14
U.S. at 678).
with
“A
the
debt
collection
collector
of
any
may
debt.”
not
use
Section 1692f
unfair
or
15
The statutory term “debt collector” “does not include
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. . . (F) any person collecting or attempting to collect any debt
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owed or due or asserted to be owed or due another to the extent
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such activity . . . concerns a debt which was not in default at
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the time it was obtained by such person.” 15 U.S.C. § 1692a(6)
20
(emphasis added).
21
Plaintiffs’ averments in their Complaint evince that
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Wells Fargo obtained Plaintiffs’ debt through its acquisition of
23
Plaintiffs’ previous debt creditor. Specifically, Plaintiffs aver
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their “original lender . . . was World Savings Bank FSB.” (Compl.
25
¶ 5.) Plaintiffs further aver:
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Golden West Financial Corporation was the
parent
company
of
World
Savings
Bank,
FSB . . . . On or about May 6, 2007, Wachovia
Bank acquired Golden West Financial. The
integration process, which included World
5
1
Savings Bank, was completed in mid-2008.
Wells Fargo Bank acquired Wachovia in the
same year.
2
3
(Id.
¶ 6.)
Plaintiffs’
4
acquisition of Wachovia establish that Wells Fargo “is not only
5
much like the original creditor, it is the original creditor.”
6
Dues v. Capital One, N.A., No. 11-cv-11808, 2011 WL 3799762, at
7
*4 (E.D. Mich. Aug. 8, 2011) (internal quotation marks omitted).
8
Therefore,
9
Savings Bank, “its predecessor in interest,” “obtained the debt.”
10
Esquivel v. Bank of Am., N.A., No 12-cv-02502-GEB-KJN, 2013 WL
11
682925,
12
Citimortgage,
13
(“[Defendant] is the successor by merger to . . . the originating
14
lender and mortgagee, and therefore it is impossible for the loan
15
to have been in default at the time [defendant] received its
16
interest.”)); see also Brown v. Morris, 243 Fed. App’x 31, 34-35
17
(5th Cir. 2007) (holding that since defendant mortgage company
18
acquired plaintiff’s loan “through its merger with [plaintiff’s]
19
previous
20
[plaintiff’s] mortgage while it was in default”).
Wells
at
*2
(E.D.
Inc.,
mortgage
The
21
Fargo
Fargo
No.
Feb.
Plaintiffs’
21,
11-13432,
company,”
a
concerning
in
2013)
2012
defendant
Plaintiffs’
debt
not
Complaint
at
v.
*7
‘obtain’
evince
Therefore, Plaintiffs’ claims averred under the FDCPA will be
24
dismissed. However, since Wells Fargo seeks dismissal of these
25
claims
26
should be provided leave to amend any dismissed FDCPA claim.
27
averments
28
Plaintiffs’
in
Plaintiffs’
opposition
issue
remains
Complaint
brief
reveal
6
and
that
Plaintiffs
that
23
the
as
World
Meyer
511995,
“did
collector”
when
(citing
WL
Fargo’s
Wells
prejudice,
“debt
Wells
22
with
not
obtained
Cal.
averments
is
averments
whether
the
assert.
Plaintiffs
arguments
providing
The
in
Plaintiffs
1
with leave to amend their claims alleged against Wells Fargo
2
under the FDCPA would be futile. Therefore, Plaintiffs’ claims
3
alleged against Wells Fargo under the FDCPA are dismissed with
4
prejudice. See Bonin v. Calederon, 59 F.3d 815, 845 (9th Cir.
5
1995) (“Futility of amendment can, by itself, justify the denial
6
of . . . leave to amend.”).
7
B. Supplemental Jurisdiction Over State Claims
8
9
Since Plaintiffs’ federal claims have been dismissed
with
prejudice,
the
exercising
Court
may
sponte
decide
11
state claims. 28 U.S.C. § 1367(c). Under 28 U.S.C. § 1367(c)(3),
12
a
13
jurisdiction over [state] claim[s]” when “the district court has
14
dismissed all claims over which it has original jurisdiction.”
15
“While discretion to decline . . . supplemental jurisdiction over
16
state law claims is triggered by the presence of one of the
17
conditions in § 1367(c), it is informed by the . . . values ‘of
18
economy, convenience, fairness, and comity’” as delineated by the
19
Supreme Court in United Mine Workers of Am. v. Gibbs, 383 U.S.
20
715, 726 (1966). Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001
21
(9th Cir. 1997).
22
“may
decline
to
over
to
continue
court
jurisdiction
whether
10
district
supplemental
sua
exercise
Plaintiffs'
supplemental
Judicial economy does not favor continuing to exercise
23
supplemental
jurisdiction,
24
energy does not justify retention of jurisdiction over the state
25
claims. See Otto v. Heckler, 802 F.2d 337, 338 (9th Cir. 1986)
26
(“[T]he
27
determine whether its investment of judicial energy justifies
28
retention of jurisdiction or if it should more properly dismiss
district
court,
since
of
the
course,
7
investment
has
the
of
judicial
discretion
to
1
the claims without prejudice.” (citation omitted)). Nor do the
2
comity
3
supplemental jurisdiction since “[n]eedless decisions of state
4
law should be avoided both as a matter of comity and to promote
5
justice between the parties, by procuring for them a surer-footed
6
reading
7
Nishimoto v. Federman–Bachrach & Assocs., 903 F.2d 709, 715 (9th
8
Cir.
9
eliminated
and
of
1990)
fairness
factors
applicable
(“In
a
before
law.”
case
in
trial,
weigh
Gibbs,
which
the
in
383
all
balance
favor
U.S.
federal
of
of
at
726;
law
these
exercising
accord
claims
factors
are
will
10
generally point toward declining to exercise jurisdiction over
11
the remaining state law claims.”). Therefore, Plaintiffs' state
12
claims are dismissed under 28 U.S.C. § 1367(c)(3) on the date on
13
which this order is filed.
14
V. CONCLUSION
15
For the stated reasons, judgment shall be entered in
16
favor of Defendant Wells Fargo Bank, N.A. on Plaintiffs’ claims
17
alleged
18
Plaintiffs’
19
§ 1367(c)(3).
20
Dated:
under
the
state
Federal
claims
Debt
are
October 17, 2013
21
22
23
24
25
26
27
28
8
Collection
dismissed
Practices
under
28
Act.
U.S.C.
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