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Iv v. National Default Servicing Corporation

United States District Court, D. Nevada

June 10, 2015

PAUL WAGNER IV, et al., Plaintiff(s),
v.
NATIONAL DEFAULT SERVICING CORPORATION, et al., Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is defendant U.S. Bank National Association's ("U.S. Bank") motion to dismiss. (Doc. # 5). Defendant National Default Servicing Corporation ("NDSC") filed a joinder to the motion. (Doc. # 13). Plaintiffs Paul Wagner ("Wagner") and Monica Wagner (collectively, "plaintiffs") filed a response, (doc. # 8), and U.S. Bank filed a reply, (doc. # 9). U.S. Bank also filed a request for judicial notice. (Doc. # 6).

I. Background

On April 19, 2004, Wagner purchased real property located at 8585 Spin Ranch Road (now 8585 Wagner Ranch Road) in Las Vegas, Nevada. He secured the purchase by obtaining a loan from Wells Fargo Home Mortgage Inc. ("WFHM") for $787, 500. The loan process included a fixed/adjustable rate note and a deed of trust securing Wagner's obligations under the note. (Docs. ## 6-1, 6-2).

Wagner defaulted on his loan payments sometime in late 2013. ( See doc. # 6-5 at 2). On December 27, 2013, Wells Fargo Bank, N.A., successor by merger to WFHM, executed a corporate assignment of deed of trust, transferring the deed to U.S. Bank. (Doc. # 6-3). On March 25, 2014, U.S. Bank recorded a substitution of trustee, naming co-defendant NDSC as trustee under the deed of trust. (Doc. # 6-4).

On April 17, 2014, NDSC mailed a letter to Wagner, informing him that NDSC was initiating non-judicial foreclosure proceedings on property located at 8585 Wagner Ranch Road. (Doc. #6-5). Wagner sent a response, dated May 5, 2014, claiming no knowledge of the loan at issue and requesting documentation to support NDSC's right to non-judicially foreclose. (Doc. # 1 at 21-23). Defendant NDSC replied to Wagner's request with a packet of information, dated May 19, 2014, regarding the security and NDSC's related interest. (Doc. # 1 at 26-27).

On March 20, 2015, plaintiffs filed a single-count complaint in this court, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. ยง 1692. (Doc. # 1). On April 10, 2014, defendant U.S. Bank filed the instant motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), (doc. # 5) and a request for judicial notice of documents relating to plaintiffs' cause of action, (doc. # 6). On May 29, defendant NDSC filed a joinder to U.S. Bank's motion to dismiss. (Doc. # 13).

II. Legal Standard

i. Request for judicial notice

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990) (citations omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986).

ii. 12(b)(6) motion to dismiss

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 Atl. 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 "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the ...


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