Lansing v. Wells Fargo Bank, N.A.
Filing
12
ORDER granting 2 Motion to Dismiss Counts IV and V. (Written Opinion). Signed by Senior Judge David S. Doty on 12/23/2011. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 11-3132(DSD/AJB)
Scott H. Lansing,
Plaintiff,
ORDER
v.
Wells Fargo Bank, N.A.,
Defendant.
Jonathan L.R. Drewes, Esq., Michael J. Wang, Esq. and
Drewes Law, PLLC, 1516 West Lake Street, Suite 300,
Minneapolis, MN 55408, counsel for plaintiff.
Charles F. Webber, Esq., Ellen B. Silverman, Esq., Erin
L. Hoffman, Esq. and Faegre & Benson, LLP, 90 South
Seventh Street, Suite 2200, Minneapolis, MN 55402,
counsel for defendant.
This matter is before the court upon the motion to dismiss
counts IV and V by defendant Wells Fargo Bank, N.A. (Wells Fargo).
Based on a review of the file, record and proceedings herein, and
for the following reasons, the court grants the motion.
BACKGROUND
This foreclosure dispute arises out of a mortgage loan from
World Savings Bank, FSB1 (World Savings) to plaintiff Scott H.
Lansing.
1
On August 25, 2004, Lansing and World Savings executed a
World Savings later changed its name to Wachovia Mortgage,
FSB (Wachovia). In 2009, Wachovia merged into Wells Fargo Bank,
N.A. See Hoffman App., ECF No. 7, at 2-8.
promissory note (Note) in exchange for a mortgage of real property
located at 12015 Mayflower Circle, Minnetonka, Minnesota 55305 (the
Property).2
See Compl. ¶¶ 1, 4.
On April 15, 2005, the mortgage
was recorded with Hennepin County.
Id. ¶ 4.
After an event of default, Wells Fargo began nonjudicial
foreclosure proceedings.
See id. ¶ 6.
The default was not cured,
and the Property was sold at a sheriff’s sale on August 30, 2011.
Id.
Lansing filed this action in Minnesota state court on October
4, 2011, asserting various violations of the Minnesota nonjudicial
foreclosure statute, the Fair Debt Collection Practices Act (FDCPA)
and consumer fraud.
Wells Fargo timely removed, and moves to
dismiss the FDCPA and consumer fraud claims.3
The court now
considers the motion.
DISCUSSION
To survive a motion to dismiss for failure to state a claim,
“a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
2
The legal description is Lot 9, Block 1, Mayflower Hills,
Hennepin County, Minnesota.
3
Lansing voluntarily withdrew his consumer fraud claim. See
Pl.’s Mem. Opp’n 2. As such, the court dismisses the claim without
prejudice.
2
(quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)).
“A
claim has facial plausibility when the plaintiff [has pleaded]
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556 (2007)).
Although a complaint need not contain
detailed factual allegations, it must raise a right to relief above
the speculative level.
See Twombly, 550 U.S. at 555.
“[L]abels
and conclusions or a formulaic recitation of the elements of a
cause of action are not sufficient to state a claim.”
Iqbal, 129
S. Ct. at 1949 (citation and internal quotation marks omitted).
The court does not consider matters outside the pleadings on
a motion to dismiss under Rule 12(b)(6).
12(d).
See Fed. R. Civ. P.
The court may consider materials “that are part of the
public record,” Porous Media Corp. v. Pall Corp., 186 F.3d 1077,
1079 (8th Cir. 1999), and matters “necessarily embraced by the
pleadings and exhibits attached to the complaint.”
Mattes v. ABC
Plastics, Inc., 323 F.3d 695, 698 n.4 (8th Cir. 2003).4
Congress enacted the FDCPA to protect consumers “in response
to abusive, deceptive, and unfair debt collection practices.”
Schmitt v. FMA Alliance, 398 F.3d 995, 997 (8th Cir. 2005).
debt
collector
may
not
use
false,
4
deceptive,
or
“A
misleading
The two appendixes filed by Wells Fargo are public record
and are necessarily embraced by the complaint.
3
misrepresentation or means in connection with the collection of any
debt.”
15 U.S.C. § 1692(e).
A debt collector is “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.”
Id. § 1692a(6) (emphasis added).
Meanwhile, a creditor
is “any person who offers or extends credit creating a debt or to
whom a debt is owed, but such term does not include any person to
the extent that he receives an assignment or transfer of a debt in
default solely for the purpose of facilitating collection of such
debt for another.”
Id. § 1692a(4).
“A distinction between
creditors and debt collectors is fundamental to the FDCPA, which
does not regulate creditors’ activities at all.” Schmitt, 398 F.3d
at 998 (citation omitted).
Lansing
argues
that
Wells
Fargo
violated
the
FDCPA
by
instituting nonjudicial foreclosure proceedings without providing
notice pursuant to Minnesota Statutes §§ 580.03 and 580.041.
In
response, Wells Fargo argues that it is not a “debt collector.”
The face of the complaint states that Wells Fargo was acting as a
creditor.
Construing all inferences in a light most favorable to
4
Lansing, he pleads no facts from which the court could draw a
reasonable inference that Wells Fargo is a debt collector under the
FDCPA.5
Lansing next argues that Wells Fargo is a debt collector,
because it was assigned Lansing’s mortgage after the debt was
already in default.
See Motley v. Homecomings Fin., LLC, 557 F.
Supp. 2d 1005, 1009 (D. Minn. 2008) (explaining that debt collector
includes an assignee of debt if debt was in default at time of
assignment).
The court disagrees.
Lansing pleaded no facts regarding the default date of the
mortgage.
Moreover, there is no evidence that the mortgage was
assigned to Wells Fargo, which merged with Wachovia.6
Therefore,
dismissal of the FDCPA claim is warranted.
5
The court also notes that a majority of cases explain that
banks instituting nonjudicial foreclosures are not debt collectors
for purposes of the FDCPA. See Landayan v. Wash. Mut. Bank, No. CV
11-03566, 2011 WL 5882678, at *3 (N.D. Cal. Nov. 23, 2011);
Gillespie v. Countrywide Bank FSB, No. 3:09-CV-556, 2011 WL
3652603, at *2 (D. Nev. Aug. 19, 2011) (citing Diessner v. Mortg.
Elec. Registration Sys., 618 F. Supp. 2d 1184, 1188-89 (D. Ariz.
2009)); see also Boone v. Wells Fargo Bank, N.A., No. 07-3922, 2009
WL 2086502, at *7-8 (D. Minn. July 13, 2009) (holding that Wells
Fargo was not debt collector when reporting debt to consumerreporting agency).
6
Prior to foreclosure, disclosure of all assignments of the
mortgage must occur. See Minn. Stat. § 580.02, subdiv. 3. The
notice of foreclosure lists no assignments of the mortgage.
Hoffman App., ECF No. 10, at 31-33. This notice is “prima facia
evidence that all the requirements of law ... have been complied
with.” Id. § 580.19.
5
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.
The defendant’s motion to dismiss [ECF No. 2] is granted;
2.
Count IV is dismissed with prejudice; and
3.
Count V is dismissed without prejudice.
Dated:
December 23, 2011
s/David S. Doty
David S. Doty, Judge
United States District Court
6
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