Hinrichsen et al v. Bank of America, N.A. et al

Filing 32

ORDER Granting 23 Motion to Dismiss. Signed by Judge Dana M. Sabraw on 8/10/2017. (All non-registered users served via U.S. Mail Service)(aef)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 RODNEY L. HINRICHSEN and DEBORAH A. HINRICHSEN, 11 12 Plaintiffs, 13 Case No. 17-cv-0219 DMS (RBB) ORDER GRANTING MOTION TO DISMISS v. 14 BANK OF AMERICA, N.A. ET AL., 15 Defendants. 16 17 18 Pending before the Court is Defendant MTC Financial, Inc. dba Trustee Corps 19 (“MTC”)’s motion to dismiss Plaintiffs Rodney L. Hinrichsen and Deborah A. 20 Hinrichsen’s First Amended Complaint (“FAC”). Plaintiffs filed an opposition, and 21 MTC filed a reply. For the reasons set forth below, MTC’s motion is granted. 22 On May 9, 2017, this Court issued an order granting in part and denying in 23 part MTC and Bank of America, N.A. (“BofA”)’s motions to dismiss. 1 On May 22, 24 2017, Plaintiffs filed a FAC, alleging the following three claims: (1) violation of the 25 Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692f(6), (2) violation 26 of Cal. Civil Code § 2924.17, and (3) cancellation of instruments. Subsequently, on 27 28 1 The Court issued an amended order on July 14, 2017. –1– 17-cv-0219 DMS (RBB) 1 June 8, 2017, MTC filed present motion. Specifically, MTC moves to dismiss 2 Plaintiffs’ second claim under § 2924.17, arguing § 2924.17 only applies to 3 mortgage servicers, not trustees, and MTC is statutorily immune from liability 4 pursuant to Cal. Civ. Code § 2924(d). 5 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests 6 the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); 7 Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). To determine whether 8 dismissal under Rule 12(b)(6) is proper, the Court must accept as true Plaintiffs’ 9 nonconclusory factual allegations, construe all reasonable inferences in favor of 10 Plaintiffs, and consider in that light whether the facts are sufficient to state a claim 11 for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 12 In their second claim, Plaintiffs allege MTC and BofA violated § 2924.17 13 based on their recording of the notice of default and notice of trustee’s sale.2 (See 14 FAC ¶¶ 14–15, 30.) Section 2924.17(b) provides, “Before recording or filing any 15 of the documents described in subdivision (a), a mortgage servicer shall ensure that 16 it has reviewed competent and reliable evidence to substantiate the borrower’s 17 default and the right to foreclose, including the borrower's loan status and loan 18 information.” Cal. Civ. Code § 2924.17(b) (italics added). Section 2924.17 “applies 19 to a mortgage servicer, which is defined in § 2920.5 to specifically exclude a 20 trustee.”3 Dahnken v. Wells Fargo Bank, NA, No. 4:13-cv-02838-PJH, 2017 WL 21 3049552, at *2 (9th Cir. 2017); McKinney v. Citi Residential Lending Inc., No. 22 15CV307-MMA (WVG), 2015 WL 11822150, at *6 (S.D. Cal. Dec. 8, 2015) 23 (“California Civil Code § 2924.17 only applies to mortgage servicers”). Plaintiffs 24 have alleged MTC is a “foreclosure trustee,” not a mortgage servicer. 4 (FAC ¶ 3.) 25 26 27 28 2 Records show these notices were issued by MTC, not BofA. Section 2920.5 expressly states, “‘Mortgage servicer’ shall not include a trustee, or a trustee's authorized agent, acting under a power of sale pursuant to a deed of trust.” Cal. Civ. Code § 2920.5(a) 4 Plaintiffs also refer to MTC as a “debt collector.” (FAC ¶ 21.) However, debt 3 –2– 17-cv-0219 DMS (RBB) 1 Because there is nothing in the record to suggest MTC is a mortgage servicer, 2 Plaintiffs cannot state a claim against MTC. Accordingly, this claim is dismissed 3 with prejudice as to MTC. 5 4 5 IT IS SO ORDERED. Dated: August 10, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 collectors are not subject to § 2924.17 either. See McKinney, 2015 WL 11822150, at *6 n.13. 5 Because MTC’s motion is granted, the Court declines to address its remaining arguments. The Court denies MTC’s request for judicial notice because the documents contained therein were not necessary to decide the present motion. –3– 17-cv-0219 DMS (RBB)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?