Mariche et al v. Wells Fargo Bank NA

Filing 19

ORDER AND REASONS granting 6 Motion to Dismiss; the plas' Louisiana Unfair Trade Practices Act, Federal Fair Debt Collection Practices Act, and wrongful seizure claims are DISMISSED. Signed by Judge Ivan L.R. Lemelle on 3/27/2012. (lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AIMEE RUPERT MARICHE &
RAYMOND L. MARICHE, JR.

CIVIL ACTION

VERSUS

NO. 11-1191

WELLS FARGO BANK, N.A.

SECTION “B”(5)
ORDER AND REASONS

Before the Court is a Motion to Dismiss Claims by Defendant
Wells Fargo Bank, N.A. (“Wells Fargo”) (Rec. Doc No. 6 & 11),
opposed by Plaintiffs Aimee Rupert Mariche and Raymond L. Mariche,
Jr. (“the Mariches”) (Rec. Doc. No. 9). For the following reasons,
the Motion is GRANTED, and the Mariches Louisiana Unfair Trade
Practices Act, Federal Fair Debt Collection Practices Act, and
wrongful seizure claims are DISMISSED.
On

June

foreclosure

29,

action

2009,

Defendant

against

the

Wells

Mariches

Fargo
in

the

instituted
22nd

a

Judicial

District Court, St. Tammany Parish, Louisiana, after they fell
behind on their mortgage loan by approximately $7,500. (Rec. Doc.
No. 6-2). The property was constructively seized on July 6, 2009
upon the recordation of a writ of seizure into the public record.
(Rec. Doc. No. 6-2). Shortly thereafter, Wells Fargo and the
Mariches entered into a forbearance agreement and agreed to pursue
loan modification, and Wells Fargo placed the pending foreclosure
action on hold. Although the Mariches complied with the terms of
the forbearance agreement, they argue that Wells Fargo improperly
delayed the proposed loan modification and refused to dismiss the

foreclosure action until completion of the loan modification. The
Mariches sued Wells Fargo for breach of contract, wrongful seizure,
violation

of

the

Louisiana

Unfair

Trade

Practices

Act

(the

“LUTPA”), La. Rev. Stat. §15:1401 et seq., and violation of the
Federal Fair Debt Collection Practices Act (the “FDCPA”), 15 U.S.C.
§1691 et seq. The case was removed to this Court under its
diversity jurisdiction. (Rec. Doc. No. 1).
Wells Fargo argues that the Mariches petition fails to state
a cause of action for all claims except for the breach of contract
claim. Wells Fargo argues that the Mariches’ claims under the LUTPA
and the FDCPA are barred under the express terms of the statutes,
and that because the Mariches admit that they were in default at
the time of the seizure, they can state no claim for wrongful
seizure.
The Mariches contend that Wells Fargo is not excluded from the
provisions of the LUTPA and is a “debt collector” and therefore
falls under the terms of the FDCPA. The Mariches argue further that
although the seizure was not wrongful at its inception, it became
wrongful when Wells Fargo refused to dismiss the foreclosure action
after the initial agreement to pursue loan modification.
When reviewing a motion to dismiss, courts must accept all
well-pleaded

facts

as

true

and

view

them

in

the

light

most

favorable to the non-moving party. Baker v. Putnal, 75 F.3d 190,
196 (5th Cir. 1996). However, “[f]actual allegations must be enough

2

to raise a right to relief above the speculative level.” Bell Atl.
Corp. V. Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to
dismiss,

a

complaint

must

contain

sufficient

factual

matter,

accepted as true, to state a claim to relief that is plausible on
its

face.”

Gonzales

2009)(quoting

v.

Ashcroft

Kay,
v.

577

F.3d

Iqbal,

129

600,

603

S.Ct.

(5th

1937,

Cir.
1949

(2009))(internal quotation marks omitted). The Supreme Court in
Iqbal explained that Twombly promulgated a “two-pronged approach”
to determine whether a complaint states a plausible claim for
relief. Iqbal, 129 S.Ct. at 1950. First, courts must identify those
pleadings that, “because they are no more than conclusions, are not
entitled to the assumption of truth.” Id. Legal conclusions “must
be supported by factual allegations.” Id. “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do no suffice.” Id. at 1949.
Upon identifying the well-pleaded factual allegations, courts
then

“assume

their

veracity

and

then

determine

whether

they

plausibly give rise to an entitlement of relief.” Id. at 1950. A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. at 1949.
This is a “context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Id. The
plaintiffs

must

“nudge[]

their
3

claims

across

the

line

from

conceivable to plausible.” Twombly, 550 U.S. at 570.
A.

Unfair Trade Practices Act, La. Rev. Stat. §15:1401, et seq.
The LUTPA expressly provides that it is inapplicable to “any

federally insured financial institution, its subsidiaries and
affiliates,” or to any other financial service provider subject to
the

jurisdiction

of

“federal

banking

regulators

who

possess

authority to regulate unfair or deceptive trade practices.” La.
Rev. Stat. §15:1406(1). The purpose of this exemption is “to avoid
duplication and exclude financial institutions which are regulated
by other authorities as to unfair or deceptive trade practices.”
Carriere v. Proponent Federal Credit Union, 2004 WL 1638250 at *7
(W.D. La. July 12, 2004), citing First Financial Bank, FSB v.
Butler, 492 So.2d 503, 505 (La. App. 5 Cir. 1986) and Scott v. Bank
of Coushatta, 512 So.2d 356, 365 (La. 1987).
Because

Wells

Fargo

is

a

federally

insured

financial

institution and is regulated as a nationally chartered bank by the
Office of the Comptroller of the Currency, it is exempt from
application of the LUTPA. See Fitch v. Wells Fargo Bank, N.A., 709
F.Supp.2d 510, 517 (E.D. La. April 29, 2010); Hayes v. Wells Fargo
Home Mortgage, 2006 WL 3193743 (Ed. La. Oct. 31, 2006). See also
Daigle v. Trinity United Mortgage, LLC, 04-406 (La. App. 3rd Cir.
11/10/04), 890 So.2d 583.
The Mariches concede that Wells Fargo is a federally insured
financial

institution,

but

argue
4

that

Wells

Fargo

has

not

demonstrated how the LUTPA provisions are duplicated by federal law
or regulation. However, under the plain language of the LUTPA,
Wells Fargo needs merely to be, and clearly is, a federally insured
financial institution to be exempt from the LUTPA’s provisions.
Accordingly, the Mariches’ claims against Wells Fargo under
the LUTPA fail as a matter of law and should be dismissed.
B.

Fair Debt Collection Practices Act, 15 U.S.C. §1691, et seq.
In order to establish a claim under the FDCPA, a plaintiff

must be a “consumer,” as defined by §1692a(3); the “debt” must
arise out of transactions which are primarily for personal, family,
or household purposes under §1692a(5); the defendant must be a
“debt collector,” as defined by §1692a(6); and the defendant must
have violated the prohibitions of the act.
Wells Fargo is not a debt collector within the meaning of the
FDCPA. A debt collector is generally defined as “any person who
uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any
debts, or who regularly collects or attempts to collect, directly
or indirectly, debts owed or due or asserted to be owed or due
another.” 15 U.S.C. §1692a(6). Importantly, the term excludes
mortgagees, mortgage servicing companies, and their beneficiaries.
Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985);
Williams v. Countrywide Home Loans, Inc., 504 F.Supp.2d 176, 190
(S.D. Tex. 2007).

5

Because

Wells

Fargo

is

a

mortgage

lender

servicing

the

Mariches’ debt, the FDCPA is not applicable, and the Mariches’
claims under this act must be dismissed.
C.

Wrongful Seizure
Although there is no statutory cause of action in Louisiana

for wrongful seizure, damages for a wrongful seizure of property
have long been available under Louisiana’s tort law. See, e.g.,
Levine v. First Nat’l Bank of Commerce, No. 02-1114 (La. App. 5th
Cir. 4/29/03), 845 So.2d 1139, 1193. Because liability is tied to
the act of unlawfully seizing another’s property, the cause of
action arises at the moment of the seizure. Edwards v. Turner, 6
Rob. 382 (La. 1844); Duperon v. Wickle, 4 Rob. 39, 40 (La. 1843).
The Mariches concede, and the pleadings support the conclusion
that, at the moment of the seizure of the property, the Mariches
were in default of their mortgage and the seizure was proper. They
argue nevertheless that the seizure later became wrongful, after
Wells Fargo’s refusal to dismiss the foreclosure action upon the
confection of the Loan Modification Agreement. Because the seizure
was not wrongful at its inception, the Mariches cannot maintain a
claim of wrongful seizure, and this cause of action must be
dismissed.
For the reasons discussed above, IT IS ORDERED that the
Mariches claims for violations of the Louisiana Unfair Trade
Practices Act and the federal Fair Debt Collection Practices Act,
6

and for wrongful seizure are DISMISSED for failure to state a cause
of action.
New Orleans, Louisiana, this 27th day of March, 2012.

____________________________
UNITED STATES DISTRICT JUDGE

7