United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT JUDGE
before the Court is the Motion to Dismiss, (ECF No. 6), filed
by Defendant Ditech Financial LLC (“Defendant”).
Pro se Plaintiffs Carlito Bernabe and Clara Bernabe
(collectively “Plaintiffs”) filed a Response,
(ECF No. 9), and Defendant filed a Reply, (ECF No. 10). For
the reasons discussed below, the Court GRANTS Defendant's
Motion to Dismiss.
case arises from alleged violations of the Federal Debt
Collections Practices Act (the “FDCPA”).
See 15 U.S.C. § 1692. Plaintiffs allege that
Defendant violated the FDCPA in its “continued attempts
to collect an alleged debt [D]efendant claims is owed”
but that “Plaintiffs are without knowledge of the
alleged debt.” (Compl. ¶ 5, ECF No. 1).
sent Plaintiff a notice (the “Notice” or
“Notices”) in February 2016, stating in bold
font: “THIS IS NOT A BILL. THIS STATEMENT IS FOR
INFORMATIONAL PURPOSES ONLY.” (the
“warning”). (Ex. A to Compl. at 16). In response
to this Notice, Plaintiffs sent Defendant a Notice of
Validation of Debt asking Defendant to validate or verify
their debt pursuant to the FDCPA. (Id. ¶ 7).
Defendant responded with the Deed of Trust (the
“Deed”) from the lender Homecomings Financial
Network, Inc. (“Homecomings”). (Id.
¶ 8). Plaintiffs point out that “[a]bsolutely
nowhere [on the Deed] is the name [of Defendant], nor is
there any documents [sic] with the name [of Defendant]. There
is absolutely zero documentation that proves a debt with
[Defendant], nor any contract with [Defendant] what so ever
[sic].” (Id.). Plaintiffs contend that
Defendant has committed “deceptive and illegal acts in
their attempt to collect the alleged debt.”
(Id. ¶ 12).
on these allegations, Plaintiff's Complaint asserts that
Defendant violated 15 U.S.C. §§ 1692g, 1692e(11),
1692d, 1692f, and 1692e(2). (See generally id.).
filed the instant Motion because “Plaintiffs'
pleadings fail to satisfy the requirement of Fed.R.Civ.P.
12(b)(6).” (Mot. to Dismiss (“MTD”)
1:27-28, ECF No. 6). Specifically, Defendant asserts that
“none of the correspondence [with Plaintiff] was made
in connection with the collection of a debt.”
(Id. 5:5-6). Defendant seeks the Complaint to be
dismissed with prejudice because “the Court already has
before it all of the documents upon which Plaintiffs rely to
allege violations of the FDCPA.” (Id. 8:3-5).
is appropriate under Rule 12(b)(6) where a pleader fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). A pleading must give fair notice of a legally
cognizable claim and the grounds on which it rests, and
although a court must take all factual allegations as true,
legal conclusions couched as a factual allegations are
insufficient. Twombly, 550 U.S. at 555. Accordingly,
Rule 12(b)(6) requires “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. “To
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.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. This standard “asks for more than a sheer
possibility that a defendant has acted unlawfully.”
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 on a motion to dismiss.”
Hal Roach Studios, Inc. v. Richard Feiner & Co.,
896 F.2d 1542, 1555 n.19 (9th Cir. 1990). 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). Otherwise, if the district court considers
materials outside of the pleadings, the motion to dismiss is
converted into a motion for summary judgment. See
Fed. R. Civ. P. 12(d); Arpin v. Santa Clara Valley
Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).
Court grants a motion to dismiss for failure to state a
claim, leave to amend should be granted unless it is clear
that the deficiencies of the complaint cannot be cured by
amendment. DeSoto v. Yellow Freight Sys., Inc., 957
F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the
court should “freely” give leave to amend
“when justice so requires, ” and in the absence
of a reason such as “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.” Foman
v. Davis, 371 U.S. 178, 182 (1962).
allege that Defendant committed three violations of 15 U.S.C.
§ 1692, the Fair Debt Collection Practices Act
(“FDCPA”): (1) Defendant failed to properly
validate the debt pursuant to § 1692g; (2) Defendant
failed to include the proper language on its correspondence
to Plaintiffs pursuant to § 1692e(11); and (3)
Defendant's correspondence was harassing, oppressive,
abusive, unfair, and misleading pursuant to §§
1692d, 1692f, and 1692e(2). (Compl. ¶ 18).
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,
[a defendant] would only be liable if it attempted to collect
money from [the plaintiff].” Ho v. ReconTrust Co.,
NA, 840 F.3d 618, 621 (9th Cir. 2016) (emphasis added).
That is not the case here. All of Plaintiffs' allegations
are premised on Defendant's Notices sent to Plaintiffs
that made “numerous claims by [D]efendant regarding an
alleged loan.” (Compl. ¶ 6). However, the ...