Emceetee LLC et al v. Nationstar Mortgage LLC et al

Filing 21

ORDER granting 6 Defendant's Motion to Dismiss; denying 18 Plaintiff's Motion for Leave to file a supplementary response and GRANTS Nationstar's Motion to Strike the unauthorized supplemental response, by Judge Marsha J. Pechman.(MD, cc to pro se)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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EMCEETEE LLC and SPENCER
ALPERT,

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Plaintiffs,
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v.

CASE NO. C14-898 MJP
ORDER ON DEFENDANT’S
MOTION TO DISMISS,
PLAINTIFF’S MOTION FOR
LEAVE TO FILE SURREPLY

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NATIONSTAR MORTGAGE LLC,
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Defendant.
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THIS MATTER comes before the Court on Defendant Nationstar Mortgage LLC’s
Motion to Dismiss. (Dkt. No. 6.) Having reviewed the Motion, Plaintiff Spencer Alpert’s original
Response (Dkt. No. 8), Plaintiff Emceetee’s original Response (Dkt. No. 9), Nationstar’s initial
Reply (Dkt. No. 11), Emceetee’s Response (Dkt. No. 14), and Nationstar’s Reply to Emceetee

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(Dkt. No. 16), the Court hereby GRANTS the Motion to Dismiss. The Court further DENIES
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Plaintiff Spencer Alpert’s Motion for Leave to File a supplemental response to the motion to
dismiss on his own behalf (Dkt. No. 18) and GRANTS Nationstar’s Motion to Strike (see Dkt.

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No. 16) that Response (Dkt. No. 15).
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ORDER ON DEFENDANT’S MOTION TO
DISMISS, PLAINTIFF’S MOTION FOR LEAVE
TO FILE SURREPLY- 1

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Background

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Plaintiff Spencer Alpert purchased the subject property (located in Dallas, Texas) in

3 2006, taking out two mortgage loans from Countrywide. (Compl., Dkt. No. 1-2 at 2.) According
4 to Alpert, at some point one of the loans was paid off. (Id. at 3.) After the loan or loans were
5 transferred to Bank of America, Alpert implies that he ceased making payments. (See id.)
6 (Communications from Nationstar that are referenced in and attached to the Complaint indicate
7 the loan payment had not been made in full since 2009. (Id. at 22.)) Alpert explains that he
8 learned the remaining loan was actually owned by ―Deustch[e] Bank‖ and engaged in
9 ―voluminous communications‖ with Bank of America about the loan. (Id.) He alleges he reached
10 ―at different times, agreements‖ with Bank of America, but does not specify what those
11 agreements consisted of. (Id.) In December 2012 Alpert transferred the property to Emceetee
12 LLC, an entity he describes as a subsidiary of a ―family LLC.‖ (Id.)
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In June 2013 Alpert and Emceetee LLC received a notice that the loan would be serviced

14 by Nationstar, a ―debt collector,‖ starting in July. (Id.; id. at 17.) The notice referred to the loan
15 in a manner that indicates the loan had been securitized. (See id. at 17 (―We look forwarded to
16 servicing your loan on behalf of DEUTSCHE BANK AS TRUSTEE FOR GSAA 2006-16.‖).)
17 Beginning in July 2013, Alpert attempted to contact Nationstar, Deutsche Bank, and Bank of
18 America ―in order to clarify the status of ongoing discussions and negotiations (as well as the
19 latest agreement) with [Bank of America].‖ (Id. at 3.)
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Nationstar sent Alpert a notice updating his ―single point of contact‖ at Nationstar on

21 November 8, 2013 (Dkt. No. 1-2 at 20) and a follow-up letter threatening foreclosure on
22 November 22, 2013. (Dkt. No. 1-2 at 22–25.) Alpert then called the number provided by the
23 letter and followed up via email on December 11, 2013. (See Dkt. No. 1-2 at 27–28.) In the
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ORDER ON DEFENDANT’S MOTION TO
DISMISS, PLAINTIFF’S MOTION FOR LEAVE
TO FILE SURREPLY- 2

1 email, he requested ―additional account information‖ that the November 22 letter informed him
2 he was entitled to, namely, payment history, a copy of the promissory note, the name of the
3 current owner of the note and deed of trust, and copies of any assignments of the note or deed of
4 trust. (See id. at 23; 28.) In addition, he requested ―the location of the individual note and
5 identity of the keeper of the vault in which it is located, as well as a copy of any document that
6 exists giving you authority to represent or act on behalf of the Noteholder.‖ (Id. at 28.)
7 Nationstar sent a letter acknowledging Alpert’s request on December 13, 2013, stated that
8 Goldman Sachs was the current owner of the loan, and further stated, ―In accordance with the
9 Real Estate Settlement Procedures Act (RESPA), a response will be provided within 30 business
10 days, except where otherwise required by state law.‖ (Id. at 33.) Nationstar then responded more
11 fully to Alpert on December 16, 2013, noting that Alpert ―appear[ed] to seek certain information
12 pursuant to the Fair Debt Collection Practices Act,‖ and providing payment history from July 5,
13 2013 through the date of the letter, a copy of the note and deed of trust (security instrument), and
14 the name of the current owner of the note (Goldman Sachs), among other documents, but
15 refusing to provide information about any assignment of the note or mortgage because the
16 requests were ―not related to the servicing of your loan and [did] not identify any specific error
17 regarding the servicing of the loan.‖ (Id. at 39–70; Dkt. No. 1-3 at 1–30.)
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Nationstar sent Alpert a default notice on February 28, 2014. (Dkt. No. 1-3 at 47–48.)

19 Plaintiffs filed suit, alleging Nationstar’s response to Alpert’s December 11 email was
20 insufficient under RESPA and the Fair Debt Collection Practices Act (FDCPA). (Dkt. No. 1-2.)
21 Defendant Nationstar now moves to dismiss the petition for failure to state a claim. (Dkt. No. 6.)
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ORDER ON DEFENDANT’S MOTION TO
DISMISS, PLAINTIFF’S MOTION FOR LEAVE
TO FILE SURREPLY- 3

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Discussion

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I.

Legal Standard

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To survive a motion to dismiss, a complaint must state a claim for relief that is plausible

4 on its face. Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is
5 facially plausible ―when the plaintiff pleads factual content that allows the court to draw the
6 reasonable inference that the defendant is liable for the misconduct alleged.‖ Id. Plausibility does
7 not mean probability, ―but it asks for more than a sheer possibility that a defendant has acted
8 unlawfully.‖ Id. Merely reciting the elements of a cause of action will not suffice. Bell Atl.
9 Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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Courts follow a two-step approach when deciding whether a complaint survives a

11 12(b)(6) motion. Iqbal, 556 U.S. at 678–79. First, ―a court must accept as true all of the
12 allegations contained in a complaint‖ unless the allegations are legal conclusions. Id. Second, the
13 Court must decide whether the claim for relief is plausible—a context-specific task. Id. The
14 Court may consider ―documents attached to the complaint, documents incorporated by reference
15 in the complaint, or matters of judicial notice‖ when making its determination. United States v.
16 Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
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II.

FDCPA

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Nationstar argues the FDCPA does not apply to Alpert’s request because he used the

19 property as an investment property, rather than ―primarily for personal, family, or household
20 purpose,‖ as the FDCPA requires. See 15 U.S.C.A. § 1692a(5). (Dkt. No. 6 at 5.) Apart from the
21 fact that Alpert lives in Seattle, the facts that would enable the Court to make this determination
22 are outside the scope of the Complaint.
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Assuming for the purposes of this motion that Alpert’s debt is subject to the FDCPA, the

24 statute requires only ―validation‖ of the debt, to include:
ORDER ON DEFENDANT’S MOTION TO
DISMISS, PLAINTIFF’S MOTION FOR LEAVE
TO FILE SURREPLY- 4

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(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice,
disputes the validity of the debt, or any portion thereof, the debt will be assumed to be
valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirtyday period that the debt, or any portion thereof, is disputed, the debt collector will obtain
verification of the debt or a copy of a judgment against the consumer and a copy of such
verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the
debt collector will provide the consumer with the name and address of the original
creditor, if different from the current creditor.

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15 U.S.C.A. § 1692g(a).
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When Alpert made his December request, he had already received a textbook validation
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of debt notice from Nationstar on July 12. (See Dkt. No. 1-2 at 18.) Nationstar also provided the
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more than the minimum requirements under the 9th Circuit’s interpretation of the FDCPA when
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it responded to his email on December 16. (See Dkt. No. 1-2, Ex. G at 49, Dkt. No. 1-3 at 37–
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43.) See Clark v. Capital Credit & Collection Services, Inc., 460 F.3d 1162, 1173–74 (9th Cir.
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2006) (―At the minimum, verification of a debt involves nothing more than the debt collector
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confirming in writing that the amount being demanded is what the creditor is claiming is owed.‖)
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(quotation marks and citation omitted). Plaintiffs’ complaint fails to state a claim under the
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FDCPA.
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III.
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RESPA

Nationstar further argues RESPA does not apply to Alpert’s mortgage because he is not

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using it as a residential property. (Dkt. No. 6 at 6.) Again, this may be a valid defense to
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Plaintiffs’ claims, but it concerns facts outside the scope of the complaint.

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Assuming for the purpose of this motion that RESPA does apply, the question remains
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whether Alpert’s December 11 email was a ―qualified written request‖ under RESPA. See 12
U.S.C. § 2605(e)(1). In order to constitute a qualified written request, the borrower’s written

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ORDER ON DEFENDANT’S MOTION TO
DISMISS, PLAINTIFF’S MOTION FOR LEAVE
TO FILE SURREPLY- 5

1 correspondence with the servicer must be ―for information relating to the servicing of such loan‖
2 and must ―include[ ] a statement of the reasons for the belief of the borrower, to the extent
3 applicable, that the account is in error or provides sufficient detail to the servicer regarding other
4 information sought by the borrower.‖ 12 U.S.C. § 2605(e)(1)(A), (B)(2).
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Alpert’s request for back-up documentation regarding the complete chain of custody for

6 the note or mortgage does not relate to the ―servicing of the loan.‖ (See Dkt. No. 1-2 at 6–10.)
7 Furthermore, as this Court has repeatedly held, RESPA was not designed to enable borrowers to
8 flood their servicers with requests for securitization documentation unmoored from the
9 borrower’s clear obligations with respect to the loan. See Eifling v. National City Mortg., No.
10 10-cv-5713 RBL, 2011 WL 893233, at *3 (W.D. Wash. March 15, 2011).
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Emceetee claims that by acknowledging Alpert’s attempt to make a request pursuant to

12 RESPA, Nationstar waived any argument that he was not making a qualified written request.
13 (Dkt. No. 14 at 3.) Emceetee cites no legal precedent for this argument, which would enable
14 borrowers to stretch the statute’s boundaries to encompass any irrelevant information the
15 borrower seeks as well as encourage servicers not to respond in good faith to vague or overly
16 broad requests. Nationstar did not waive the argument that Alpert’s was not a qualified written
17 request under the statute.
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Plaintiffs fail to state a claim under RESPA.

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IV.

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The Court gave Emceetee leave to file an additional response because it claimed not to

Leave to File Surreply

21 have been properly served. (See Dkt. No. 9, 12.) However, both Alpert and Emceetee filed
22 supplemental responses. (See Dkt. No. 14, 15.) Nationstar moves to strike Alpert’s response
23 pursuant to Local Civil Rule 7(g). (Dkt. No. 16.) Alpert the filed a post-hoc motion for leave to
24 file the response (Dkt. No. 18), which Nationstar opposed. (Dkt. No. 19.) Alpert’s supplementary
ORDER ON DEFENDANT’S MOTION TO
DISMISS, PLAINTIFF’S MOTION FOR LEAVE
TO FILE SURREPLY- 6

1 response (Dkt. No. 15) was not authorized by the Court or the Local Rules and the Court
2 therefore STRIKES it.
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Conclusion
Because the Complaint fails to state a claim under RESPA or the FDCPA, Nationstar’s

5 Motion to Dismiss is GRANTED. The Court further DENIES Plaintiff Alpert’s Motion for
6 Leave to file a supplementary response and GRANTS Nationstar’s Motion to Strike the
7 unauthorized supplementary Response.
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The clerk is ordered to provide copies of this order to Plaintiff Alpert and all counsel.
Dated this 16th day of September, 2014.

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A

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Marsha J. Pechman
Chief United States District Judge

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ORDER ON DEFENDANT’S MOTION TO
DISMISS, PLAINTIFF’S MOTION FOR LEAVE
TO FILE SURREPLY- 7