Trinidad et al v. Caliber Home Loans Inc. et al

Filing 23

ORDER granting Defendants' ECF No. 10 Motion to Dismiss; directing Clerk to enter judgment and close case. Signed by Judge Miranda M. Du on 1/13/2017. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
4
5
UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

***

8
9

GLORIFINA TRINIDAD, NANA I AM,
Plaintiff,

10
11
12

Case No. 2:16-cv-00818-MMD-VCF
ORDER

v.
CALIBER HOME LOANS, INC.; BANK
OF NEW YORK MELLON N.A.; SUMMIT
REAL ESTATE SERVICES, LLC,

13

Defendant.

14
15

I.

INTRODUCTION

16

Before the Court is a motion to dismiss (“Motion”) filed by Defendants Caliber

17

Home Loans, Inc. (“Caliber”), The Bank of New York Mellon, as Trustee for CIT Mortgage

18

Loan Trust 2007-1 (“the Bank”) and Summit Real Estate Services, LLC (“Summit”)

19

(collectively, “Defendants”). (ECF No. 10.) Glorifina Trinidad (“Trinidad” or “Plaintiff”) and

20

“Nana I Am”1 have responded2 and Defendants have replied. (ECF Nos. 20, 21.)

21

II.

RELEVANT BACKGROUND

22

The relevant facts are taken from the Complaint and the Motion.

23

The Complaint alleges that Defendants are debt collectors attempting to collect a

24

debt that the Bank “received [as] an assignment or transfer of a mortgage, while the debt

25
26
27
28

1“Nana

I Am” is identified as a plaintiff in the case captain and signed the
Complaint. However, other than the first two paragraphs, the Complaint for the most part
refers to “Plaintiff” in the singular. (ECF No. 1.)
2The Court gave Plaintiffs several extensions of time to respond to the Motion.
(ECF Nos. 14, 18.)

1

was in default.” (ECF No. 1 at 6.) The Complaint alleges that “Plaintiff is unable to

2

determine the validity of defendant’s alleged debt and the amounts they claim is due and

3

owing.” (Id. at 9.) Exhibit A to the Complaint includes a copy of a Notice of Trustee’s Sale

4

under a deed of trust dated February 27, 2007 (“DOT”), identifying the trustee as Trinidad

5

and the property subject to the sale as 6507 Bethalo Street in Las Vegas, Nevada (“the

6

Property”). (Id. at 20-21.) The beneficial interest under the DOT was assigned to the Bank

7

in December 2010. (ECF No. 10-10.) On September 8, 2014, Summit was substituted as

8

a trustee under the DOT. (ECF No. 10-11.) On September 10, 2014, Summit recorded a

9

notice of breach and election to sale against the Property. (ECF No. 10-12.) The Property

10

was foreclosed upon on March 4, 2015. (ECF No. 10-15.)

11

The Complaint asserts a single claim for violation of the Fair Debt Collections

12

Practices Act (“FDCP”), 15 USC § 1692. (ECF No. 1.) The Complaint further alleges that

13

“Plaintiff seeks judicial determination as to whether the recorded Assignment of Deed of

14

Trust (Mortgage) and the alleged Note executed by MERS conferred any rights, title and

15

interest in the Plaintiff’s subject property.” (Id. at 12.) However, the Complaint can only be

16

reasonably construed to assert a single claim under the FDCP.3

17

III.

LEGAL STANDARD

18

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

19

relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must provide

20

“a short and plain statement of the claim showing that the pleader is entitled to relief.”

21

Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While

22

Rule 8 does not require detailed factual allegations, it demands more than “labels and

23

conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v.

24

Iqbal, 556 US 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “Factual allegations

25
26
27
28

3The

Motion addresses other claims, including an injunctive relief claim,
challenging the assignment of the note and DOT, to the extent they are asserted in the
Complaint. (ECF No. 10 at 9-11.) The Complaint cannot be construed to allege a claim
for injunctive relief to undo the foreclosure sale or to challenge the assignment. Indeed,
“Plaintiff denies any loan was received.” (ECF No. 1 at 9.)
2

1

must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S.

2

at 555. Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual

3

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556

4

U.S. at 678 (quoting Twombly, 550 U.S. at 570).

5

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

6

apply when considering motions to dismiss. First, a district court must accept as true all

7

well-pleaded factual allegations in the complaint; however, legal conclusions are not

8

entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause

9

of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a

10

district court must consider whether the factual allegations in the complaint allege a

11

plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s

12

complaint alleges facts that allow a court to draw a reasonable inference that the

13

defendant is liable for the alleged misconduct. Id. at 678. Where the complaint fails to

14

“permit the court to infer more than the mere possibility of misconduct, the complaint has

15

alleged — but it has not ‘shown’ — ‘that the pleader is entitled to relief.’” Id. at 679 (quoting

16

Fed. R. Civ. P. 8(a)(2)) (alteration omitted). When the claims in a complaint have not

17

crossed the line from conceivable to plausible, the complaint must be dismissed.

18

Twombly, 550 U.S. at 570. A complaint must contain either direct or inferential allegations

19

concerning “all the material elements necessary to sustain recovery under some viable

20

legal theory.” Id. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106

21

(7th Cir. 1984)).

22

Mindful of the fact that “[t]he Supreme Court has instructed the federal courts to

23

liberally construe the ‘inartful pleading’ of pro se litigants,” the Court will view Plaintiff’s

24

pleadings with the appropriate degree of leniency. Eldridge v. Block, 832 F.2d 1132, 1137

25

(9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982)).

26

Generally, a court may not consider any material beyond the pleadings in ruling on

27

a Rule 12(b)(6) motion to dismiss. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir.

28

2003). There are three exceptions to this rule: (1) a court may consider documents
3

1

“‘properly submitted as part of the complaint’ on a motion to dismiss;” (2) if “documents

2

are not physically attached to the complaint,” incorporation by reference is proper “‘if the

3

documents’ authenticity . . . is not contested’ and ‘the plaintiff's complaint necessarily

4

relies’ on them,” Lee v. Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (quoting

5

Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998); and (3) “a court may take

6

judicial notice of ‘matters of public record.’” Id. (quoting Mack v. S. Bay Beer Distribs., 798

7

F.2d 1279, 1282 (9th Cir. 1986). The Court thus grants Defendants’ request to take

8

judicial notice of publicly recorded records attached to their Motion. (ECF Nos. 10-1

9

through 10-5.)

10

IV.

DISCUSSION

11

Defendants argue that the FDCPA claim fails as a matter of law because

12

Defendants are not debt collectors covered under the FDCPA. The Act generally defines

13

a debt collector as “any person who uses any instrumentality of interstate commerce or

14

the mails in any business the principal purpose of which is the collection of any debts, or

15

who regularly collects or attempts to collect, directly or indirectly, debts owed or due or

16

asserted to be owed or due another.” 15 U.S.C. § 1692a(6). However, foreclosing on a

17

property pursuant to a deed of trust is not a debt collection within the meaning of the Act.

18

See Warwick v. Bank of New York Mellon, Case No. CV 15-3343 SS, 2016 WL 2997166

19

at *16 (C.D. Cal. May 23, 2016) (citing Saldate v. Wilshire Credit Corp., 711 F. Supp. 2d

20

1126, 1132 (E.D. Cal. 2010)).

21

Plaintiff makes general allegations that each Defendant is a debt collector. (ECF

22

No. 1 at 2.) However, the gist of the specific allegations offered to support Plaintiff’s claim

23

is that Caliber sent Plaintiff notices demanding payment on a debt that the Bank “received

24

[as] an assignment or transfer of a mortgage.” (ECF No. 1 at 6.) While the Bank and

25

Summit are both identified as alleged debt collectors, the only other allegation involving

26

Summit is that it was “named as the seller of Plaintiff’s property” in Exhibit A (i.e., the

27

Notice of Trustee’s Sale).

28

///
4

1

Because the Bank and Caliber are not debt collectors subject to the Act, Plaintiff

2

cannot assert a claim for violation of the Act against these Defendants. As noted, Plaintiff

3

makes no specific allegations that Summit even attempted to collect on the debt.

4

Summit’s only involvement in the apparent foreclosure sale was its designation as “the

5

seller of Plaintiff’s property.” (ECF No. 1 at 7.)

6

V.

CONCLUSION

7

The Court notes that the parties made several arguments and cited to several

8

cases not discussed above. The Court has reviewed these arguments and cases and

9

determines that they do not warrant discussion or reconsideration as they do not affect

10

the outcome of the Motion.

11

It is therefore ordered that Defendants’ motion to dismiss (ECF No. 10) is granted.

12

The Clerk is directed to enter judgment in accordance with this Order and close

13
14

this case.
DATED THIS 13th day of January 2017.

15
16
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
5