United States District Court, D. Nevada
January 6, 2017
PHILIPPE LAURENT, Plaintiffs,
BANK OF AMERICA, N.A, et al., Defendants.
before the court is defendant Bank of America, N.A.'s
motion for summary judgment. (ECF No. 21). Pro se
plaintiff Philippe Laurent has not filed a response.
filed a complaint against defendant on June 3, 2014, alleging
five claims for relief regarding defendant's foreclosure
of real property, at 9508 Bluff Ledge Ave., Las Vegas,
Nevada, that allegedly belonged to plaintiff: (1) violation
of the Federal Debt Collection Practices Act
("FDCPA"); (2) violation of Nevada Revised Statute
116.3116(2); (3) negligence; (4) declaratory judgment to
quiet title; and (5) intentional infliction of emotional
distress. (ECF No. 1).
now argues in its uncontested motion for summary judgment
that neither plaintiff nor it still have an interest in the
real property at issue. (ECF No. 21). Specifically, defendant
asserts that "[o]n June 1, 2015, plaintiff recorded a
deed transferring his interest in the property to Proper
Investments" and that defendant similarly "assigned
its interest in the [p]roperty to [Carrington Mortgage
Services, LLC] in September 2014." (Id. at
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that "there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is "to isolate and dispose of
factually unsupported claims . . . ." Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
non-moving party must "set forth specific facts showing
that there is a genuine issue for trial." Id.
determining summary judgment, the court applies a
burden-shifting analysis. "When the party moving for
summary judgment would bear the burden of proof at trial, it
must come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial." C.A.R. Transp. Brokerage Co. v. Darden
Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000).
Moreover, "[i]n such a case, the moving party has the
initial burden of establishing the absence of a genuine issue
of fact on each issue material to its case."
contrast, when the non-moving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the non-moving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the non-moving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that "the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial." T. W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass 'n, 809 F.2d 626, 630 (9th Cir.
defendant is the moving party, and plaintiff has not filed
any opposition to the present motion. See (ECF No.
21). A failure to oppose a motion for summary judgment is not
dispositive. See LR 7-2(d). But "[i]f a party
fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact,
" then a district court may exercise its authority to
"grant summary judgment if the motion and supporting
materials-including the facts considered undisputed-show that
the movant is entitled to it." Fed.R.Civ.P. 56(e);
see also Heinemann v. Satterberg, 731 F.3d 914, 917
(9th Cir. 2013).
Plaintiff's second, third, fourth, and fifth claims of
has filed a copy of the quitclaim deed wherein plaintiff
transferred his interest in the real estate to Prosper
Investments, LLC. (ECF No. 21 at 41-43). Defendant has
asserted no evidence contesting the inference that he
currently has no possible interest in the real property that
serves as a foundation of this case. See Celotex
Corp., 477 U.S. at 323-24; see also Fed. R.
Civ. P. 56(e). Therefore, plaintiffs claims are at risk of
general a case becomes moot when the issues presented are no
longer 'live' or the parties lack a legally
cognizable interest in the outcome." Pub. Utilities
Comm 'n of State of Cal. v. F.E.R.C, 100 F.3d 1451,
1458 (9th Cir. 1996) (quoting Murphy v. Hunt, 455
U.S. 478, 481 (1982) (internal quotations omitted). A court
must not rule on moot legal questions so "to avoid
advisory opinions on abstract propositions of law."
In re Universal Farming Indus., 873 F.2d 1332, 1333
(9th Cir. 1989) (quoting Hall v. Beals, 396 U.S. 45,
48 (1969)). Moreover, "[a] federal court cannot issue a
declaratory judgment if a claim has become moot."
Pub. Utilities Comm 'n of State of Cal, 100 F.3d
second claim of relief addresses whether "[p]laintiff
owns the property free and clear, " discussing a home
owners' association's foreclosure sale of the
relevant real property. (ECF No. 1 at 13). His third claim of
relief similarly alleges that defendant was negligent in its
recordkeeping in relation to defendant's "attempt
to foreclose on Plaintiffs . . . property when Defendants do
not have the legal authority to do so." (Id. at
13). Plaintiffs fourth claim of relief asks the court to
provide declaratory relief establishing him as the legal
owner of the real property at issue. (Id.). Finally,
plaintiffs fifth claim of relief seems to allege intentional
infliction of emotional distress as a result of
defendant's supposedly baseless attempt to obtain the
disputed real property. (Id.).
allegations hinge on this court's determination that
plaintiff was the rightful owner of the property. See
(id.). Yet defendant provides uncontested evidence that
plaintiff has unequivocally relinquished any claimed right in
the property. (ECF No. 21). Furthermore, the traditional
exceptions to mootness do not apply in this case. See,
e.g., Pub. Utilities Comm 'n of State of Cal, 100
F.3d at 1451. Therefore, this court finds that these claims
have become moot and will not adjudicate them.
Plaintiff's first claim of relief
also alleges that defendant has violated 15 U.S.C.
§§ 1692d, 1692e, 1692f, and 1692g(b). (ECF No. 1).
Section 1692d reads: "A debt collector may not engage in
any conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the
collection of a debt." Section 1692f generally prohibits
"[a] debt collector's] . . . use [of] unfair or
unconscionable means to collect or attempt to collect any
debt." Further, § 1692f(1) specifically details
impermissible conduct such as "[t]he collection of any
amount. . . unless such amount is expressly authorized by the
agreement creating the debt or permitted by
law." Next, Plaintiffs allegations under §
1962g(b) involve defendant's "fail[ure] to cease
collection of an alleged debt, and not providing proper
verification of the alleged debt to Plaintiff." (ECF No.
1); see also 15 U.S.C. § 1962g(b).
§ 1692e, plaintiff specifically alleges that defendant,
again as a debt collector, has violated §§
1692e(2)(A), 1692e(5), 1692e(8), and 1692e(10), which
respectively prohibit: (1) "The false representation of.
. . the character, amount, or legal status of any debt";
(2) "The threat to take any action that cannot legally
be taken or that is not intended to be taken"; (3)
"Communicating or threatening to communicate to any
person credit information which is known or which should be
known to be false, including the failure to communicate that
a disputed debt is disputed"; and (4) "The use of
any false representation or deceptive means to collect or
attempt to collect any debt or to obtain information
concerning a consumer."
FDCPA imposes liability only when an entity is attempting to
collect debt. For the purposes of the FDCPA, the word
'debt' is synonymous with 'money.' Thus,
[defendant] would only be liable if it attempted to collect
money from [plaintiff]." Ho v. ReconTrust Co.,
NA, 840 F.3d 618, 621 (9th Cir. 2016) (citations
omitted) (holding that a trustee of a California deed of
trust is not a "debt collector" under the FDCPA).
In the FDCPA context, the protection of an interest in real
property is not the same as collecting a debt. See
Id. at 620-22.
defendant indicates that, prior to its transfer of interest
in the property, it was the holder of a deed of trust for the
underlying real property in this case. (ECF No. 21).
Plaintiffs complaint makes no mention of any money payments
requested by defendants except for a lone allegation that
defendant "attempt[ed] to collect fees, interest, and
expenses from Plaintiff." (ECF No. 1 at 8). This lone,
cursory mention of a request for money is unsupported by any
other alleged fact in the complaint, which involves the
parties' interest in a parcel of real estate. See
defendant is not a "debt collector" as the Ninth
Circuit has interpreted that term in the FDCPA. See
15 U.S.C. § 1692a; Ho, 840 F.3d at 620-21.
Plaintiffs first claim for relief therefore fails.
evidence of plaintiff s transfer of his interest in the
disputed real property, if any such interest existed,
warrants the granting of its motion for summary judgment as
it pertains to plaintiffs second, third, fourth, and fifth
claims of relief for mootness. Further, plaintiffs first
claim will be dismissed because the FDCPA does not apply in
HEREBY ORDERED, ADJUDGED, AND DECREED that defendant's
motion for summary judgment (ECF No. 21), be, and the same
hereby is, GRANTED.
clerk shall enter judgment accordingly and close the case.
 Plaintiffs claims do not involve any
issue of chain of title subsequent to his sale.
 Plaintiff makes two separate
allegations under § 1692f (1) allegations of liability
"for attempting to collect fees, interest, and expenses
. . . that are not authorized by any agreement or permitted
by law, in violation of 1692f(1)"; and (2) a more
general allegation in paragraph 45 of the complaint under
§ 1692f (ECF No. 1 at 8).