Briscoe et al v. Fay Servicing, LLC et al

Filing 16

ORDER ON REPORT AND RECOMMENDATIONS It is hereby HEREBY ORDERED that the Report and Recommendation entered on October 11, 2016 (Dkt. 15 ) is ADOPTED IN ITSENTIRETY and the Defendants' Motion to Dismiss (Dkt. 5 ) is GRANTED WITHPREJUDICE. It is further ORDERED that the In Forma Pauperis Applications (Dkt. 2 , 3 ) are DISMISSED AS MOOT. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ALVA V. and SANDRA M. BRISCOE,
Case No. 4:16-CV-00297-EJL-CWD
Plaintiffs,
ORDER ON REPORT AND
RECOMMENDATION

v.
FAY SERVICING, LLC, DBA “FAY”
AND PROF-2013-S3 LEGAL TITLE
TRUST, BY U.S. BANK, NATIONAL
ASSOCIATION, AND ELISA S.
MAGNUSON, DBA “TRUSTEE”,
Defendants.

INTRODUCTION
On October 11, 2016, United States Magistrate Judge Candy W. Dale issued a
Report and Recommendation (“Report”), recommending that the Defendants’ Motion to
Dismiss be granted and the In Forma Pauperis Applications be dismissed as moot. (Dkt.
15.) Any party may challenge a magistrate judge’s proposed recommendation by filing
written objections to the Report within fourteen days after being served with a copy of
the same. See 28 U.S.C. § 636(b)(1); Local Civil Rule 72.1(b). The district court must
then “make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” Id. The district court may
accept, reject, or modify in whole or in part, the findings and recommendations made by
the magistrate judge. Id.; see also Fed. R. Civ. P. 72(b). No objections have been filed
ORDER ON REPORT AND RECOMMENDATION - 1

and the matter is ripe for the Court’s consideration. See Local Civ. R. 72.1(b)(2); 28
U.S.C. § 636(b)(1)(B).
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.”
Where the parties object to a report and recommendation, this Court “shall make a de
novo determination of those portions of the report which objection is made.” Id. Where,
however, no objections are filed, the district court need not conduct a de novo review.
The Ninth Circuit has interpreted the requirements of 28 U.S.C. § 636(b)(1)(C) stating:
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise….“to the extent de novo review is
required to satisfy Article III concerns, it need not be exercised unless
requested by the parties.” Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (citations omitted);
see also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). To the extent that
no objections are made, arguments to the contrary are waived. See Fed. R. Civ. P. 72; 28
U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days of
service of the Report and Recommendation). “When no timely objection is filed, the
Court need only satisfy itself that there is no clear error on the face of the record in order
to accept the recommendation.” Advisory Committee Notes to Fed. R. Civ. P. 72 (citing
Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

ORDER ON REPORT AND RECOMMENDATION - 2

DISCUSSION
The complete procedural background and facts of this case are well articulated in
the Report and the Court incorporates the same in this Order. Plaintiffs initiated this
action by filing his Complaint against the Defendants alleging violations of the Fair Debt
Collection Practices Act (FDCPA) relating to the foreclosure attempts on a deed of trust
secured by Plaintiffs’ personal residence. (Dkt. 1.) Defendants filed the Motion to
Dismiss for failure to state a claim. (Dkt. 5.) The Report concludes the Complaint fails to
state a FDCPA claim because the nonjudicial foreclosure is not “debt collection” within
the meaning of the FDCPA. (Dkt. 15.)
This Court has reviewed the original briefing of the parties, the Report, Plaintiffs’
objections and materials, and the Defendants’ responses as well as the entire record
herein. In doing so, the Court is mindful that the Plaintiff is a pro se litigant and, as such,
the filings and motions are construed liberally. See Thomas v. Ponder, 611 F.3d 1144,
1150 (9th Cir. 2010). That being said, while pro se litigants are held to less stringent
standards, a litigant's pro se status does not excuse him or her from complying with the
procedural or substantive rules of the court. Haines v. Kerner, 404 U.S. 519, 520 (1972)
(per curiam); Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003). As the Ninth Circuit
has held “an ordinary pro se litigant, like other litigants, must comply strictly with the
summary judgment rules.” Thomas, 611 F.3d at 1150 (citing Bias v. Moynihan, 508 F.3d
1212, 1219 (9th Cir. 2007)).

ORDER ON REPORT AND RECOMMENDATION - 3

Applying these principles here, this Court has reviewed the entire Report as well
as the full record in this matter for clear error on the face of the record and none has been
found. Moreover, this Court is in agreement with the Report’s recitation of the facts,
discussion of the applicable law, analysis, reasoning, and conclusion finding that the
Plaintiffs have not stated a plausible claim. The Report’s analysis and conclusion is
further supported by the Ninth Circuit’s recent decision in Ho v. ReconTrust Co., NA
issued four days after the Report was filed. 840 F.3d 618 (9th Cir. 2016) (holding the
trustee of a California deed of trust securing a real estate loan was not a “debt collector”
under the FDCPA). For these reasons, the Court will adopt the Report, grant the Motion
to Dismiss, and deny the In Forma Pauperis Applications as moot. The Court further
finds that no leave to amend should be granted because doing so would be futile.
Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009) (“[F]utility
of amendment alone can justify the denial of a motion” to amend.).

ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on October 11, 2016 (Dkt. 15) is ADOPTED IN ITS
ENTIRETY and the Defendants’ Motion to Dismiss (Dkt. 5) is GRANTED WITH
PREJUDICE.

ORDER ON REPORT AND RECOMMENDATION - 4

IT IS FURTHER ORDERED that the In Forma Pauperis Applications (Dkt. 2, 3)
are DISMISSED AS MOOT.

DATED: December 1, 2016

_________________________
Edward J. Lodge
United States District Judge

ORDER ON REPORT AND RECOMMENDATION - 5