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

Filing 11

MEMORANDUM DECISION - For all of these reasons, the Court finds pursuant to 28 U.S.C. §1915 that the complaint has no arguable basis in fact or law, and that amendment would not cure the defects. Accordingly, the Court will dismiss the complaint in a separate Judgment. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ALVA V. BRISCOE, SANDRA M. BRISCOE,
Plaintiff,

Case No. 1:15-CV-424-BLW

v.

Memorandum Decision

BANK OF AMERICA, N.A., SUCCESSOR
BY MERGER TO BAC HOME LOANS
SERVICING, LP, f/k/a COUNTRYWIDE
HOME LOANS SERVICING, LP, and ELISA
MAGNUSON, ESQ., and PITE DUNCAN,
LLP AS TRUSTEE,
Defendants.

BACKGROUND
The plaintiffs borrowed money from defendant Bank of America to purchase their
residence and the Bank took a deed of trust as security. When the plaintiffs failed to
make payments on the loan, the Bank foreclosed. Plaintiffs responded by filing this
lawsuit alleging that the Bank violated the Fair Debt Collections Practices Act, the Truth
in Lending Act, and further that the Bank was guilty of identity theft.
The plaintiffs filed their complaint pro se and requested in forma pauperis status.
United States Magistrate Judge Dale reviewed the complaint under 28 U.S.C. §1915, and
concluded that the complaint should be dismissed. See Initial Review Order (Dkt. No. 7).
In that Order, Judge Dale transferred the case to this Court for review.
ANALYSIS

Pro se complaints, “however inartfully pleaded,” are held to “less stringent
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,
520 (1972). Therefore, because plaintiffs proceed pro se, the Court will construe their
pleadings liberally and afford them the benefit of any doubt. Bretz v. Kelman, 773 F.2d
1026, 1027 n. 1 (9th Cir. 1985) (en banc). The Court must dismiss a complaint or any
portion thereof which states a claim that is frivolous or malicious, that fails to state a
claim upon which relief may be granted, or that seeks monetary relief from a defendant
who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).
If a complaint fails to state a claim, the Court must grant the plaintiff leave to
amend, “even if no request to amend the pleading was made, unless [the court]
determines that the pleading could not possibly be cured by the allegation of other facts.”
Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir.
1990). Indeed, a dismissal without leave to amend is improper unless it is beyond doubt
that the complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573
F.3d 728, 737 (9th Cir. 2009). “In determining whether a complaint is frivolous, a court is
not bound, as it usually is when making a determination based solely on the pleadings, to
accept without question the truth of the plaintiff's allegations.” See Denton v. Hernandez,
504 U.S. 25, 32 (1992). The Court may find a complaint frivolous “if it has no arguable
basis in fact or law.” O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990).
The Court agrees with the detailed analysis of the Magistrate Judge that the
complaint has no arguable basis in fact or law, and that amendment would not cure the

defects. The Court therefore adopts in full the analysis of the Magistrate Judge in the
Initial Review Order (Dkt. No. 7). The Court will summarize that analysis below.
Fair Debt Collection Practices Act Claim
According to the complaint, the Bank loaned the plaintiffs money and was
foreclosing on the security it took for that loan. But the Fair Debt Collection Practices
Act (FDCPA) does not govern efforts by creditors collecting their own debts. 15 U.S.C. §
1692a(6). Moreover, mortgage servicing companies are not “debt collectors” and are
exempt from liability under the Act. Caballero v. Ocwen Loan Serv., 2009 WL 1528128,
at *1 (N.D.Cal. May 29, 2009). This claim must be dismissed.
Claim For Identity Theft
The complaint indicates the information the Bank “took” came from public
records. The Bank also obtained a credit report and requested plaintiffs to voluntarily
release information to enable the Bank to modify the terms of the home loan. Further, it
appears that the damages plaintiffs suffered, or will suffer, are limited to the foreclosure
of their home. See Pineda v. GMAC Mortg., LLC, 2008 WL 5432281 at *9 (C.D.Cal.
Dec.29, 2008) (Plaintiff failed to state a cause of action for identity theft based upon an
allegation that defendants took his personal information without his consent and used it
for profit and have caused damage to the plaintiff's financial reputation). The facts as
stated do not rise to the level of conversion, and do not state a claim that survives Fed. R.
Civ. P. 8.
Truth in Lending Act

The statute of limitations for the Truth in Lending Act (TILA) is “one year from
the date of the occurrence of the violation.” 15 U.S.C. § 1640(e); Shaw v. Lehman Bros.
Bank, FSB, 2009 WL 790166, at *4 (D. Idaho Mar.20, 2009); see also Monaco v. Bear
Stearns Resid. Mortg. Corp., 554 F.Supp.2d 1034, 1039 (C.D.Cal. 2008). Additionally,
the statute begins to run when the plaintiff enters into the loan agreement, in this case
2011. See King v. Cal., 784 F.2d 910, 915 (9th Cir. 1986); Shaw, 2009 WL 790166, at
*4. Even if adequately alleged, any potential TILA claim in this case is time-barred,
because plaintiffs failed to file suit within one year of the consummation of the loan
transaction. See Mortensen v. MERS, Inc., 2012 WL 4482040 (D. Idaho Aug. 24, 2012)
(dismissing time-barred claim under TILA and finding complaint was not adequately
pled).
Conclusion
For all of these reasons, the Court finds pursuant to 28 U.S.C. §1915 that the
complaint has no arguable basis in fact or law, and that amendment would not cure the
defects. Accordingly, the Court will dismiss the complaint in a separate Judgment.

DATED: January 8, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court