Jara v. Aurora Loan Services, LLC et al

Filing 71

ORDER DENYING 70 Plaintiff's request for leave to file a motion for reconsideration. Signed by Judge Laurel Beeler on 01/09/2012. (lblc2, COURT STAFF) (Filed on 1/9/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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Oakland Division
JOSE A. JARA,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 11-00419 LB
Plaintiff(s),

ORDER DENYING PLAINTIFF’S
REQUEST FOR LEAVE TO FILE A
MOTION FOR RECONSIDERATION

v.
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AURORA LOAN SERVICES,
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Defendant(s).
_____________________________________/

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I. INTRODUCTION
Plaintiff Jose Jara sued Defendants Aurora Loan Services, LLC (“Aurora”), Mortgage Electronic

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Registration Systems (“MERS”), and California Western Reconveyance (“Cal Western”)

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(collectively, “Defendants”) for violation of federal and state law in connection with the foreclosure

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and sale of his property in South San Francisco, California. Third Amended Complaint (“TAC”),

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ECF No. 49.1 On December 14, 2011, the court granted Defendants’ two motions to dismiss Mr.

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Jara’s Third Amended Complaint. 12/14/2011 Order, ECF No. 68; see also Motion (Aurora and

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MERS), ECF No. 50; Joinder and Motion (Cal Western), ECF No. 51.

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On December 27, 2011, pursuant to this District’s Civil Local Rule 7-9(a), Plaintiff filed a letter

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requesting leave to file a motion for reconsideration. Request, ECF No. 70. Upon consideration of

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Plaintiff’s letter and the authority cited therein, the court DENIES his request.

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
number at the top of the document, not the pages at the bottom.
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II. DISCUSSION

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A district court can “reconsider” final judgments or appealable interlocutory orders pursuant to

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Federal Rules of Civil Procedure 59(e) (governing motions to alter or amend judgments) and 60(b)

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(governing motions for relief from a final judgment). See Balla v. Idaho State Bd. of Corr., 869 F.2d

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461, 466-67 (9th Cir. 1989). A district court also can “reconsider” non-final judgments pursuant to

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Federal Rule of Civil Procedure 54(b) and the court’s “inherent power rooted firmly in the common

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law” to “rescind an interlocutory order over which it has jurisdiction.” City of Los Angeles v. Santa

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Monica Baykeeper, 254 F.3d 882, 887 (9th Cir. 2001).

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Under this District’s Civil Local Rules, plaintiffs must seek permission from the court prior to

court, plaintiffs must show that (1) at the time of the motion, a material difference in fact or law

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For the Northern District of California

filing a motion for reconsideration. N.D. Cal. Civ. L.R. 7-9(a). In seeking permission from the

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UNITED STATES DISTRICT COURT

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exists that was not previously presented to the court, (2) there has been an emergence of new

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material facts or a change in law since the court issued the order, or (3) there was a “manifest failure

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by the Court to consider material facts or dispositive legal arguments” that were presented to it.

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.N.D. Cal. Civ. L.R. 7-9(b). As such, reconsideration is appropriate only when (1) the court is

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presented with newly discovered evidence, (2) the underlying decision was in clear error or

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manifestly unjust, or (3) there is an intervening change in controlling law. See School Dis. No. 1J,

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Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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In his letter, Plaintiff contends the second situation exists: that a new, material change in the law

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has emerged since the court issued its 12/14/2011 Order. Request, ECF No. 70 at 1. Plaintiff states:

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“On December 21, 2011[, in an amicus brief in support of the plaintiffs’ appeal in Birster v.

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American Home Mortgage Servicing, Inc., No. 11-13574-G (11th Cir. 2011), ] the Consumer

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Financial Protection Bureau [(“CFPB”)]. . . took an official position that trustees such as Cal

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Western must comply with the entire FDCPA, and not merely 15 U.S.C. § 1692f(6), in connection

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with non-judicial trustee sales.” Id. (citing Amicus Brief, Birster v. Am. Home Mortg. Serv., Inc.,

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No. 11-13574-G (11th Cir. Dec. 22, 2011)). This new “official position,” Plaintiff argues,

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contradicts this court’s reasoning in its 12/14/2011 Order and, thus, his request for leave to file a

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motion for reconsideration should be granted.

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The court disagrees. Plaintiff has misunderstood the CFPB’s arguments in its amicus brief and

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their relationship to this court’s reasoning its 12/14/2011 Order. In the 12/14/2011 Order, the court

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dismissed Plaintiff’s FDCPA claim for two reasons: (1) because he did not sufficiently allege that

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Cal Western is a “debt collector,” see 12/14/2011 Order, ECF No. 68 at 6-7; and (2) because acts

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required to institute foreclosure proceedings, alone, are not debt collection activities with respect to

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his claim for violation of 15 U.S.C. § 1692g, see id. at 7-9.

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It is true that the CFPB’s brief discusses the first reason. As the CFPB puts it, one of the issues

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addressed in its brief is whether “a person who meets the FDCPA’s general definition of ‘debt

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collector’ qualif[ies] as a debt collector for purposes of the entire Act if (a) he also qualifies as a

security interest in the particular case.” Amicus Brief at 11. But as the court explained in its

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For the Northern District of California

debt collector under the additional definition applicable to § 1692f(6), and (b) he is enforcing a

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UNITED STATES DISTRICT COURT

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12/14/2011 Order, Plaintiff failed to sufficiently allege facts to support his conclusory allegation that

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Cal Western acted as a “debt collector.” 12/14/2011 Order, ECF No. 68 at 6-7. Nothing in the

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CFPB’s discussion changes that.

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It is also true that CFPB’s brief addresses the issue whether “attempting to obtain payment of a

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consumer debt cease[s] to qualify as debt collection covered by the Act if the debt collector or a

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related party simultaneously attempts to enforce a security interest backing the debt.” Amicus Brief

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at 11. While this issue certainly is related to the second reason the court relied upon in its

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12/14/2011 Order, the CFPB’s argument does not affect this court’s decision. In his Third Amended

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Complaint, Plaintiff’s FDCPA claim against Cal Western was based only on Cal Western’s

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foreclosure-related acts.2 And after analyzing the relevant authority bearing upon such allegations,

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the court concluded that Plaintiff’s FDCPA claim must be dismissed because acts required to

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institute foreclosure proceedings, alone, are not debt collection activities with respect to a claim for

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With respect to Cal Western, Plaintiff only alleged that he was current on his obligations
under the plan when Cal Western recorded a notice of default on the property, that Cal Western did
not provide him with a debt validation notice prior to recording the default, and that Cal Western
conducted a trustee’s sale on August 25, 2010. Third Amended Complaint, ECF No. 49 at ¶¶ 9, 10,
12, 16; Request for Judicial Notice, ECF No. 62, Ex. 10 (notice of default), Ex. 13 (trustee’s deed
upon sale).
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violation of 15 U.S.C. § 1692g. 12/14/2011 Order, ECF No. 68 at 9.
In the pending appeal before the Eleventh Circuit, however, the plaintiffs-appellants’ FDCPA

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claim is based on the defendant-appellee’s collection efforts made in addition to its foreclosure-

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related acts. Indeed, the CFPB took steps to make this distinction quite clear when it wrote:

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“Although the district court suggested that foreclosure by itself does not constitute debt collection

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activity subject to the entire FDCPA, that issue is not actually presented in this case. [Plaintiffs-

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Appellants’] claims are not based on the foreclosure itself, but rather on [Defendant-Appellee’s]

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related attempts to induce [Plaintiffs-Appellants] to pay amounts they owed.” Amicus Brief at 41-

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42 (footnote omitted). And the CFPB even seems to agree with the district court’s “suggestion,”

security interest, standing alone, does not necessarily qualify as debt collection.” Amicus Brief at 35

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For the Northern District of California

conceding that “the [FDCPA’s] definition of ‘debt collector’ . . . suggests that the enforcement of a

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UNITED STATES DISTRICT COURT

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(citing 15 U.S.C. § 1692a(6)). Because this “suggestion” was this court’s second reason for

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dismissing Plaintiff’s FDCPA claim here, Plaintiff’s argument that the CFPB’s brief supports its

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request for leave to file a motion for reconsideration fails.

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III. CONCLUSION

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Based on the foregoing, Plaintiff’s request for leave to file a motion for reconsideration is

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DENIED. In light of the request, however, Plaintiff shall have 7 additional days to file a Fourth

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Amended Complaint. Rather than having to file one by January 14, 2012 (the current deadline),

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Plaintiff may file a Fourth Amended Complaint no later than January 21, 2012.

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This disposes of ECF No. 70.

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IT IS SO ORDERED.

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Dated: January 9, 2012
_______________________________
LAUREL BEELER
United States Magistrate Judge

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