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Dowers v. Nationstar Mortgage LLC

United States District Court, District of Nevada

December 31, 2014

DALE DOWERS, et al., Plaintiffs,
v.
NATIONSTAR MORTGAGE LLC, et al., Defendants.

ORDER

Presently before the court is a motion to dismiss filed by defendants Nationstar Mortgage, LLC (“Nationstar”) and Wells Fargo Bank, N.A. (“Wells Fargo”) (hereinafter “defendants”). (Doc. # 4). Plaintiffs Dale and Debra Dowers (hereinafter “plaintiffs”) filed a response, (doc. # 7), and defendants filed a reply, (doc. # 11).

I. Background

In April 2000, plaintiffs purchased property located at 9408 Tournament Canyon Drive in Las Vegas, Nevada. They secured their purchase with a deed of trust against the property for $665, 000. On May 29, 2003, plaintiffs refinanced the loan with an $897, 500 deed of trust.

Plaintiffs then defaulted on their loan payments. On January 28, 2010, Bank of America recorded a notice of default. On February 10, 2010, Bank of America assigned the deed of trust to Wells Fargo. Wells Fargo substituted ReconTrust Company, N.A. (“ReconTrust”) as trustee under the deed of trust. ReconTrust rescinded the notice of default on August 9, 2011.

MTC Financial Inc. dba Trustee Corps (“Trustee Corps”) was then substituted as trustee under the deed of trust. On September 30, 2013, Trustee Corps recorded a second notice of default. Nationstar is the current servicer under the deed of trust.

On April 12, 2010, plaintiffs filed for chapter 7 bankruptcy. On August 31, 2010, the bankruptcy court terminated the automatic stay of foreclosure proceedings. On February 4, 2014, the parties participated in foreclosure mediation. Defendants lacked the required affidavit of certification of documents. As a result, the mediator ruled not to issue a certificate of foreclosure.

On March 25, 2014, Nationstar sent a letter to plaintiffs informing them that it may foreclose on the property if plaintiffs failed to pay the full amount of default. Around this same time, David Dobson called plaintiffs on behalf of Nationstar and “was rude, bullying, and abusive . . . .” (Doc. # 1-1).

On April 2, 2014, plaintiffs’ counsel sent Nationstar and Trustee Corps a letter demanding that they cease all communications with plaintiffs. Nationstar continued to contact plaintiffs both by phone and in writing. From May 2014 through June 2014, Nationstar placed written notices on plaintiffs’ door. On June 18, 2014, Nationstar sent a mortgage loan statement to plaintiffs.

On June 25, 2014, plaintiffs’ counsel sent an email to Nationstar and Trustee Corps demanding removal or rescission of the notice of default in light of the mediator’s ruling. On July 16, 2014, Trustee Corps rescinded the second notice of default. On August 26, 2014, Nationstar sent a letter to plaintiffs, again threatening foreclosure.

On September 5, 2014, plaintiffs filed the instant action in state court, alleging intentional infliction of emotional distress, deceptive trade practices, and violations of the Fair Debt Collection Practices Act. (Doc. # 1-1). On October 13, 2014, defendants removed the case to this court on federal question and diversity grounds. (Doc. # 1). Defendants then filed the instant motion.

II. Legal Standard

i. 12(b)(6) dismissal

A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide “[a] short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

“Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to ‚Äústate a claim to relief that is ...


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