Cave v. National Default Servicing Corporation et al

Filing 32

ORDER that 5 Motion to Dismiss is GRANTED. IT IS FURTHER ORDERED that defendants motion to expunge lis pendens 6 be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that plaintiffs motions to amend complaint 26 and expand page lim it 27 be, and the same hereby are, DENIED. IT IS FURTHER ORDERED that plaintiffs motions to quash defenses notice 29 , for more definite clarification 30 , and to compel initial pretrial disclosures 31 be, and the same hereby are, DENIED as moot. Signed by Judge James C. Mahan on 6/22/15. (Copies have been distributed pursuant to the NEF - TR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

CHRIS H. CAVE,

8

Plaintiff(s),

9
10
11

Case No. 2:15-CV-122 JCM (VCF)
ORDER

v.
NATIONAL DEFAULT SERVICING
CORPORATION, et al.,
Defendant(s).

12
13

Presently before the court are defendant JPMorgan Chase Bank, N.A.’s (“Chase”)1 motion

14
15
16
17
18

to dismiss for failure to state a claim (doc. # 5) and motion to expunge lis pendens (doc. # 6).2
Defendant National Default Servicing Corporation (“National Default”) joined both of Chase’s
motions. (Doc. # 9). Pro se plaintiff Chris H. Cave filed a response (doc. # 10), and Chase filed
a reply (doc. # 13).
Also before the court are plaintiff’s petition for leave to amend complaint (doc. # 26) and

19
20
21
22
23
24

motion to expand page limit (doc. # 27). None of the defendants filed responses and the deadline
to do so has passed.
...
...
...

25
26
1

27
2

28
James C. Mahan
U.S. District Judge

Chase appears for itself and as a receiver for Washington Mutual Bank.

Chase filed a combined motion to dismiss for failure to state a claim and to expunge lis
pendens. In accordance with Special Order 109, the clerk’s office split the motion and docketed
each motion as a separate entry. (Docs. ## 5, 6). The two motions are identical in substance.

1

I.

Background

2

This is a mortgage-foreclosure related action relating to the real property at 919 Linn Lane,

3

Las Vegas, Nevada 89110-2600.3 (Doc. # 5-1 at 69). In May 2007, plaintiff and his non-party

4

spouse obtained a $272,000.00 loan from Washington Mutual Bank. (Doc. # 5-6 at 2-10).

5

California Reconveyance Company was the original trustee under the deed of trust. (Doc. # 5-7

6

at 2). The loan was secured by a deed of trust lien on the Clark County, Nevada, residential

7

property of plaintiff.

8

In September 2008, the Office of Thrift Supervision closed Washington Mutual Bank and

9

appointed the Federal Deposit Insurance Company (“FDIC”) as receiver. (Doc. # 5-2 at 2). FDIC

10

seized Washington Mutual Bank’s assets and sold the seized assets to Chase. (See docs. ## 5-2 at

11

2; 5-3).

12

As a part of the acquisition, Chase acquired the rights of Washington Mutual Bank as lender

13

and beneficiary arising under all of the loan assets of Washington Mutual Bank, including the note

14

and deed of trust. (Doc. # 5-3 at 9).

15

On April 30, 2012, plaintiff signed notarized statements, acknowledging that he entered

16

into the agreements concerning the loan and that he made one or more payments to Chase in

17

connection with the loan.4 (Docs. # 5-8; 5-9). Plaintiff also asserted that he had somehow

18

“discharged any and all alleged debt” arising from the loan. (Id.). Plaintiff recorded the statements

19

on May 1, 2012.5 (Docs. ## 5-8 at 2; 5-9 at 3). On July 17, 2012, plaintiff’s wife signed a notarized

20
21
3

22
23
24
25

The court must lean heavily on the documents provided by defendant to understand the
factual background. Plaintiff’s complaint, though incredibly long, provides very few specific
facts. The court judicially recognizes all of the following documents: the deed of trust, the
assignments of the deed of trust, the substitution of trustee, the lis pendens, and other documents
filed with the Clark County, Nevada recorder’s office. See Intri-Plex Technology, Inc. v. Crest
Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (“A court may take judicial notice of matters of
public record without converting a motion to dismiss into a motion for summary judgment as long
as the facts are not subject to reasonable dispute.”)

26
4

27

Defendants assert that plaintiff has not made any payments on the loan since on or around
April 14, 2012. (Doc. # 5-1 at 29).

28

5

A duplicate of one of the statements was also recorded on July 16, 2012. (Doc. # 5-9 at

2).
James C. Mahan
U.S. District Judge

-2-

1

statement acknowledging that she entered into the agreements concerning the loan. (Doc. # 5-10

2

at 2-3). Plaintiff recorded the statement on July 18, 2012. (Id.).

3

On August 21, 2012, plaintiff filed a notarized notice of dispute with National Default.

4

(Doc. # 5-1 at 31-33). Plaintiff asserted that he was “exercising all [his] rights under the ‘Fair

5

Debt Collections Practices Act’ . . . which stipulates that a debt collector must, if requested, provide

6

verification of the alleged debt . . . .” (Doc. # 5-1 at 31). National Default sent a response

7

acknowledging receipt of plaintiff’s request to verify the debt in connection with the pending

8

trustee sale. (Doc. # 5-1 at 37). National Default sent plaintiff a copy of the note, deed of trust,

9

assignment, payment history, and payoff figures and reinstatement figures (for verification of debt

10

purposes). (Id.).

11

National Default informed plaintiff that the servicer had directed them to proceed with the

12

foreclosure action and to record a notice of default. (Id.). National Default informed plaintiff that

13

they would provide him a copy of the notice of default and that he could also follow the status of

14

the file on their website. (Id.).

15

On September 10, 2012, a corporate assignment of deed of trust was recorded to “further

16

memorialize the transfer that occurred [between FDIC and Chase] by operation of law on

17

September 25, 2008 . . . .” (Doc. # 5-11 at 2).

18

On March 25, 2013, Chase substituted National Default as trustee under the deed of trust.

19

(Doc. # 5-12 at 2). On October 7, 2014, as a result of plaintiff’s failure to make payments under

20

the note, National Default as trustee recorded a notice of default and election to sell under the deed

21

of trust. (Doc. # 5-13).

22

On January 6, 2015, Nevada’s foreclosure mediation program recorded a certificate against

23

the property. (Doc. # 5-1 at 69). Plaintiff still did not cure his payment default. Accordingly, on

24

January 20, 2015, National Default recorded a notice of trustee’s sale. (Doc. # 5-15 at 2). National

25

Default scheduled the sale for February 6, 2015, at 10:00 AM.

26

Plaintiff initiated the instant case on January 21, 2015. (Doc. # 1). Plaintiff’s complaint

27

alleges “violations of the Fair Credit Reporting Act, Title 15 U.S.C. §1681, Fair Debt Collection

28
James C. Mahan
U.S. District Judge

-3-

1

Practices Act, Title 15 U.S.C. § 1692 . . . and other breaches of law . . . .” (Doc. # 1 at 2). On

2

January 26, 2015, plaintiff recorded a notice of lis pendens against the property. (Id., exh. P).

3

II.

Legal Standard

4

A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief

5

can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and

6

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2);

7

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed

8

factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the

9

elements of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted).

10

“Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at

11

555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to

12

“state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (citation omitted).

13

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply

14

when considering motions to dismiss. First, the court must accept as true all well-pled factual

15

allegations in the complaint. Id. at 1950. However, legal conclusions are not entitled to the

16

assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported by

17

only conclusory statements, do not suffice. Id. at 1949. Second, the court must consider whether

18

the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is

19

facially plausible when the plaintiff's complaint alleges facts that allows the court to draw a

20

reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949.

21

Where the complaint does not “permit the court to infer more than the mere possibility of

22

misconduct, the complaint has alleged, but it has not shown, that the pleader is entitled to relief.”

23

Id. (internal quotations and alterations omitted). When the allegations in a complaint have not

24

crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550

25

U.S. at 570.

26

The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202,

27

1216 (9th Cir. 2011). The Starr court stated, “First, to be entitled to the presumption of truth,

28

allegations in a complaint or counterclaim may not simply recite the elements of a cause of action,

James C. Mahan
U.S. District Judge

-4-

1

but must contain sufficient allegations of underlying facts to give fair notice and to enable the

2

opposing party to defend itself effectively. Second, the factual allegations that are taken as true

3

must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing

4

party to be subjected to the expense of discovery and continued litigation.” Id.

5

III.

6
7
8
9

Discussion
A. Violations of the Fair Credit Reporting Act against Chase
To state a Fair Credit Reporting Act (“FCRA”) claim under § 1681s–2(b) against a

furnisher of information, a consumer must allege that “1) the furnisher provided inaccurate
information to the credit reporting agency (“CRA”); 2) the CRA notified the furnisher of a dispute;

10
and 3) the furnisher failed to conduct a reasonable investigation into the accuracy of the disputed
11

information, in light of the information provided to it by the CRA.” Middleton v. Plus Four, Inc.,

12
No. 2:13-cv-01421-GMN-GWF, 2014 WL 910351, at *3 (D. Nev. Mar. 7, 2014).
13
14

Plaintiff asserts that on October 25, 2014, he notified the “three major credit reporting
agencies” of a dispute regarding his credit report. (Doc. # 1 at ¶ 15). However, plaintiff fails to

15
allege that Chase was ever presented a dispute by any credit reporting agency, which would have
16

triggered Chase’s duty under the FCRA. Further, plaintiff fails to allege that he is current on his

17
mortgage. Thus, the reported negative information to the credit reporting agencies was likely
18

appropriate. The court will dismiss plaintiff’s FCRA claim.

19
20
21
22
23
24
25
26
27

B. Violations of invasion of privacy against Chase
“A cause of action for invasion of privacy requires: (1) an intentional intrusion by
defendant; (2) on the solitude or seclusion of the plaintiff; (3) that would be highly offensive to a
reasonable person.” Downs v. River City Grp., LLC, No. 3:11-cv-0885-LRH-WGC, 2012 WL
1684598, at *4 (D. Nev. May 11, 2012). The tort has a public disclosure requirement, which
contemplates disclosure to more than individuals or small groups. Kuhn v. Account Control Tech.,
Inc., 865 F. Supp. 1443, 1448 (D. Nev. 1994).

28
James C. Mahan
U.S. District Judge

-5-

1

Plaintiff alleges that Chase is a “mere 3rd party ‘debt collector’ and a complete total

2

stranger, (notwithstanding their: notorious criminal reputation,) to this Plaintiff, Who has

3

absolutely no recollection of ever having any actual contractual relationship whatsoever with

4

[Chase] and Plaintiff has never applied for any credit or services with this Defendant either.” (Doc.

5

# 1 at ¶ 31). Plaintiff asserts that he has the right to investigate where and how Chase obtained his

6

personal and private credit information.

7

Plaintiff does not specifically allege that Chase publically disclosed any private

8

information. Rather, plaintiff asserts that he has a right to investigate how Chase obtained his

9

personal and private credit information. Construing plaintiff’s claim liberally the court believes

10

plaintiff is alleging that Chase disseminated his private information by reporting negative

11

information to the credit reporting agencies.

12

Plaintiff fails to state a viable claim for relief. Plaintiff has not alleged any facts which

13

suggest an intrusion occurred that is “highly offensive to a reasonable person,” let alone any facts

14

that suggest an “intentional intrusion” occurred at all. Thus, there are no facts to suggest a

15

plausible claim for relief.

16
17
18
19
20

C. Negligent, wanton, and/or intentional hiring and supervision against Chase and National
Default
Plaintiff asserts a claim for “negligent, wanton, and/or intentional hiring supervision of
incompetent employees or agents . . . .” (Doc. # 1 at ¶¶ 34-36). To state a claim for negligent
training and supervision in Nevada, a “plaintiff must show (1) a general duty on the employer to

21
use reasonable care in the training and/or supervision of employees to ensure that they are fit for
22

their positions; (2) breach; (3) injury; and (4) causation.” Montes v. Bank of Am. NA., 2:13-cv-

23
660-RCJ-VCF, 2013 WL 5882778, at *7 (D. Nev. Oct. 30, 2013) (citing Okeke v. Biomat USA,
24
Inc., 927 F. Supp. 2d 1021, 1028 (D. Nev. 2013)).
25

“Claims for negligent training and supervision are based upon the premise that an employer

26
should be liable when it places an employee, who it knows or should have known behaves
27
28
James C. Mahan
U.S. District Judge

wrongfully, in a position in which the employee can harm someone else.” Okeke, 927 F. Supp. 2d
at 1028. However, an “employee’s wrongful behavior does not in and of itself give rise to a claim
-6-

1

for negligent training and supervision.” Id. Claims for negligent hiring, on the other hand, depend

2

on an employer breaching its “general duty . . . to conduct a reasonable background check on a

3

potential employee to ensure that the employee is fit for the position.” Rockwell v. Sun Harbor

4

Budget Suites, 112 Nev. 1217, 1227 (1996) (quoting Burnett v. C.B.A. Security Serv., 107 Nev.

5

787, 789 (1991)).

6

In his complaint, plaintiff fails to plead any facts to establish that Chase or National Default

7

“owed [him] a duty of care, as he does not name specific employees, does not identify the alleged

8

incompetence, or otherwise describe the conduct giving rise to this cause of action.” See Gomez

9

v. Countrywide Bank, FSB, O’Connor v. Capital One, N.A., No. CV 14-00177-KAW, 2014 WL

10

2215965, at *9 (N.D. Cal. May 29, 2014) (facing a substantially similar complaint). In addition,

11

plaintiff has not alleged any facts to suggest that this is a viable claim for relief, such as that Chase

12

or National Default failed to conduct reasonable background checks. The court will dismiss

13

plaintiff’s negligent hiring and supervision claim.

14

D. Violations of the Fair Debt Collection Practices Act against Chase and National Default

15

The Fair Debt Collection Practices Act (“FDCPA”) provides that activities undertaken in

16

connection with a non-judicial foreclosure do not constitute debt collection under the FDCPA. See

17

Diessner v. Mortg. Elec. Reg. Sys., Inc., 618 F. Supp. 2d 1184, 1188–89. Plaintiff’s claim against

18

defendants must be dismissed because the defendants have undertaken activities connected with

19

the non-judicial foreclosure sale of the property at issue, and they are not considered “debt

20

collectors” under the FDCPA. See Gillespie v. Countrywide Bank FSB, No. 3:09-cv-556-JCM-

21

VPC, 2011 WL 3652603, at *2 (D. Nev. Aug. 19, 2011). The court will dismiss plaintiff’s FDCPA

22

claim.

23
E. Expunge lis pendens
24
25

Pursuant to NRS § 14.015(3), the party who records a notice of pendency “must establish
to the satisfaction of the court . . . [t]hat the party . . . is likely to prevail in the action.”

26
27
28
James C. Mahan
U.S. District Judge

-7-

1

Here, plaintiff has not demonstrated that he is likely to prevail. The court has dismissed

2

all claims in the complaint for failure to state a claim upon which relief can be granted.

3

Accordingly, the court grants defendants’ motion to expunge lis pendens.
F. Plaintiff’s motions to amend complaint and to expand page limit

4

Plaintiff seeks to amend his complaint by adding Michael A. Bosco, Esq. as a defendant.

5
6

Plaintiff also asks leave to expand his page limit for his proposed amended complaint.

7

Plaintiff first attempts to incorporate Bosco’s alleged “violations” of the currently asserted

8

causes of action. Plaintiff’s proposed amended complaint asserts that Michael Bosco is “intimately

9

intertwined [and] inseparable and connected in conspiracy” to the other defendants, because of

10

Bosco’s “former quasi-Govt., high level employers[’] connections at: Freddie Mac and Fannie

11

Mae . . . .” (Doc. # 26-3).

12

Plaintiff also asserts that he “adds violations.” However, plaintiff does not appear to add

13

any additional causes of action. Plaintiff attempts to add “a constitutional dimension question”

14

and issues of “constitutional diversity.” (Doc. # 26-3 at 1). The court cannot discern any

15

actionable constitutional violations from the plaintiff’s ramblings.

16

The court finds that plaintiff’s requested amendment would be futile. Plaintiff fails to plead

17

any facts to connect Michael Bosco to any of the asserted causes of action and fails to plead any

18

facts for the court to discern a constitutional violation.

19

IV.

Conclusion

20

Accordingly,

21

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to

22
23
24
25
26

dismiss for failure to state a claim (doc. # 5), be and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that defendants’ motion to expunge lis pendens (doc. # 6)
be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motions to amend complaint (doc. # 26) and
expand page limit (doc. # 27) be, and the same hereby are, DENIED.

27
28
James C. Mahan
U.S. District Judge

-8-

1

IT IS FURTHER ORDERED that plaintiff’s motions to quash defenses notice (doc. # 29),

2

for more definite clarification (doc. # 30), and to compel initial pretrial disclosures (doc. # 31) be,

3

and the same hereby are, DENIED as moot.

4
5
6

DATED June 22, 2015.
__________________________________________
UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-9-