United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
the Court is a motion to dismiss (“Motion”) filed
by Defendants Caliber Home Loans, Inc.
(“Caliber”), The Bank of New York Mellon, as
Trustee for CIT Mortgage Loan Trust 2007-1 (“the
Bank”) and Summit Real Estate Services, LLC
“Defendants”). (ECF No. 10.) Glorifina Trinidad
(“Trinidad” or “Plaintiff”) and
“Nana I Am” have responded and Defendants have replied.
(ECF Nos. 20, 21.)
relevant facts are taken from the Complaint and the Motion.
Complaint alleges that Defendants are debt collectors
attempting to collect a debt that the Bank “received
[as] an assignment or transfer of a mortgage, while the debt
was in default.” (ECF No. 1 at 6.) The Complaint
alleges that “Plaintiff is unable to determine the
validity of defendant's alleged debt and the amounts they
claim is due and owing.” (Id. at 9.) Exhibit A
to the Complaint includes a copy of a Notice of Trustee's
Sale under a deed of trust dated February 27, 2007
(“DOT”), identifying the trustee as Trinidad and
the property subject to the sale as 6507 Bethalo Street in
Las Vegas, Nevada (“the Property”). (Id.
at 20-21.) The beneficial interest under the DOT was assigned
to the Bank in December 2010. (ECF No. 10-10.) On September
8, 2014, Summit was substituted as a trustee under the DOT.
(ECF No. 10-11.) On September 10, 2014, Summit recorded a
notice of breach and election to sale against the Property.
(ECF No. 10-12.) The Property was foreclosed upon on March 4,
2015. (ECF No. 10-15.)
Complaint asserts a single claim for violation of the Fair
Debt Collections Practices Act (“FDCP”), 15 USC
§ 1692. (ECF No. 1.) The Complaint further alleges that
“Plaintiff seeks judicial determination as to whether
the recorded Assignment of Deed of Trust (Mortgage) and the
alleged Note executed by MERS conferred any rights, title and
interest in the Plaintiff's subject property.”
(Id. at 12.) However, the Complaint can only be
reasonably construed to assert a single claim under the
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 pleaded 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) (quoting
Twombly, 550 U.S. at 555). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. Thus, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, a district court must accept as
true all well-pleaded factual allegations in the complaint;
however, legal conclusions are not entitled to the assumption
of truth. Id. at 678-79. Mere recitals of the
elements of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678. Second, a
district court must consider whether the factual allegations
in the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow a court to
draw a reasonable inference that the defendant is liable for
the alleged misconduct. Id. at 678. Where the
complaint fails to “permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
- but it has not ‘shown' - ‘that the pleader
is entitled to relief.'” Id. at 679
(quoting Fed.R.Civ.P. 8(a)(2)) (alteration omitted). When the
claims in a complaint have not crossed the line from
conceivable to plausible, the complaint must be dismissed.
Twombly, 550 U.S. at 570. A complaint must contain
either direct or inferential allegations concerning
“all the material elements necessary to sustain
recovery under some viable legal theory.”
Id. at 562 (quoting Car Carriers, Inc. v. Ford
Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
of the fact that “[t]he Supreme Court has instructed
the federal courts to liberally construe the ‘inartful
pleading' of pro se litigants, ” the Court
will view Plaintiff's pleadings with the appropriate
degree of leniency. Eldridge v. Block, 832 F.2d
1132, 1137 (9th Cir. 1987) (quoting Boag v.
MacDougall, 454 U.S. 364, 365 (1982)).
a court may not consider any material beyond the pleadings in
ruling on a Rule 12(b)(6) motion to dismiss. United
States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).
There are three exceptions to this rule: (1) a court may
consider documents “‘properly submitted as part
of the complaint' on a motion to dismiss;” (2) if
“documents are not physically attached to the
complaint, ” incorporation by reference is proper
“‘if the documents' authenticity . . . is not
contested' and ‘the plaintiff's complaint
necessarily relies' on them, ” Lee v. Los
Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (quoting
Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir.
1998); and (3) “a court may take judicial notice of
‘matters of public record.'” Id.
(quoting Mack v. S. Bay Beer Distribs., 798 F.2d
1279, 1282 (9th Cir. 1986). The Court thus grants
Defendants' request to take judicial notice of publicly
recorded records attached to their Motion. (ECF Nos. 10-1
argue that the FDCPA claim fails as a matter of law because
Defendants are not debt collectors covered under the FDCPA.
The Act generally defines a debt collector as “any
person who uses any instrumentality of interstate commerce or
the mails in any business the principal purpose of which is
the collection of any debts, or who regularly collects or
attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another.” 15 U.S.C.
§ 1692a(6). However, foreclosing on a property pursuant
to a deed of trust is not a debt collection within the
meaning of the Act. See Warwick v. Bank of New ...