United States District Court, D. Nevada
ORDER GRANTING BARCLAYS' MOTION TO DISMISS AND
DENYING ALFRED CLARK'S MOTIONS TO STRIKE AND RECONSIDER
AS MOOT [ECF NOS. 8, 17, 26]
P. GORDON UNITED STATES DISTRICT JUDGE
plaintiff Alfred Clark sues the defendants for violations of
the Fair Debt Collection Practices Act (FDCPA), fraud, and to
quiet title to his property. Clark previously sued these same
defendants for FDCPA violations and wrongful foreclosure, but
Judge Jennifer Dorsey dismissed his claims. Clark v. New
Century Mortg. Co., 2018 WL 1367357 (D. Nev. Mar. 16,
2018). Defendant Barclays Capital Real Estate Inc. moves to
dismiss Clark's claims, arguing that Judge Dorsey's
order precludes the claims, Clark lacks standing, and
Clark's FDCPA claims are untimely. ECF No. 8. Defendants
U.S. Bank National Association, Western Progressive - Nevada,
Inc., and Ocwen Loan Servicing, LLC join the motion and
Barclays' reply in support of the motion. ECF Nos. 9, 16.
Clark moves to strike the joinder to the reply as untimely
and for reconsideration of Magistrate Judge Leen's order
staying discovery pending my decision on Barclays'
motion. ECF Nos. 17, 26. Because Clark's claims arise out
of the same facts alleged in his prior suit, he is precluded
from relitigating them. So, I grant the motion to dismiss
with prejudice and deny Clark's motions as moot.
2006, Clark received a $204, 000 loan from Clarion Mortgage
Capital to purchase a property in Las Vegas. Clark,
2018 WL 1367357 at *1. The note was secured by a deed of
trust naming Clarion as the beneficiary and First American
Title Company as the trustee. Id. Clarion assigned
the deed of trust to New Century, which transferred the deed
through Barclays under a limited power of attorney to U.S.
Bank. Id. at n.4; ECF No. 1 at 16. Clark was
notified in 2016 that he had been in default on his payments
since 2014. Clark, 2018 WL 1367357 at *1.
Clark then filed suit, but voluntarily dismissed his case in
April 2017. Id. at *2 n.24. Later that year, Clark
sued the defendants again for FDCPA violations and common-law
wrongful foreclosure, arguing that an assignment in the chain
of title was void. Id. at 1. Judge Dorsey dismissed
the wrongful foreclosure claim without prejudice because no
foreclosure on Clark's property had taken place.
Id. at 2. Judge Dorsey dismissed the FDCPA claim
with prejudice because the one-year statute of limitations
for his FDCPA claim had expired. Id. Clark then
filed this suit in November 2018, asserting FDCPA, fraud, and
quiet title causes of action.
considering a motion to dismiss, “all well-pleaded
allegations of material fact are taken as true and construed
in a light most favorable to the non-moving party.”
Wyler Summit P'ship v. Turner Broad. Sys., Inc.,
135 F.3d 658, 661 (9th Cir. 1998). However, I do not assume
the truth of legal conclusions merely because they are cast
in the form of factual allegations. See Clegg v. Cult
Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
A plaintiff must make sufficient factual allegations to
establish a plausible entitlement to relief. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007). Such
allegations must amount to “more than labels and
conclusions, [or] a formulaic recitation of the elements of a
cause of action.” Id. at 555.
argues that Clark's claims are precluded by Judge
Dorsey's order dismissing his complaint. Clark responds
that Judge Dorsey dismissed his claims because they were
unripe, so her order does not have preclusive effect. Clark
also argues that a new notice of default recorded after Judge
Dorsey's order also violates the FDCPA, so the claim
arising from that violation cannot be barred by Judge
doctrine of claim preclusion bars “successive
litigation of the very same claim, whether or not
relitigation of the claim raises the same issues as the
earlier suit.” Taylor v. Sturgell, 553 U.S.
880, 892 (2008) (citation and quotation omitted). The
preclusive effect of a judgment in a federal-question case is
determined by federal common law. Id. at 891.
Clark's case before Judge Dorsey involved questions of
federal law and was before the court on federal question
jurisdiction, so federal common law applies here.
Clark, 2018 WL 1367357 at *1. (claim under FDCPA).
Under federal common law, claim preclusion applies when there
is: “(1) an identity of claims; (2) a final judgment on
the merits; and (3) identity or privity between
parties.” Stewart v. U.S. Bancorp, 297 F.3d
953, 956 (9th Cir. 2002).
Identity of Claims
identity of claims depends on: (1) “whether rights or
interests established in the prior judgment would be
destroyed or impaired by prosecution of the second
action”; (2) “whether substantially the same
evidence is presented in the two actions”; (3)
“whether the two suits involve infringement of the same
right”; and (4) “whether the two suits arise out
of the same transactional nucleus of facts.”
Costantini v. Trans World Airlines, 681 F.2d 1199,
1201-02 (9th Cir. 1982). “The last of these criteria is
the most important.” Id.
fact that res judicata depends on an ‘identity of
claims' does not mean that an imaginative attorney may
avoid preclusion by attaching a different legal label to an
issue that has, or could have, been litigated.”
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l
Planning Agency, 322 F.3d 1064, 1077-78 (9th
Cir. 2003). “Newly articulated claims based on the same
nucleus of facts may still be subject to [claim preclusion]
if the claims could have been brought in the earlier
action.” Id. at 1078.
alleges in both complaints that, in support of their
foreclosure, the defendants improperly rely on
“Corporation Assignment, document number
20090313-0004015” (the assignment of the deed of trust
from New Century, through Barclays, to U.S. Bank). ECF No. 1
at 4, ECF No. 8-2 at 7. Clark's main contention in both
suits is that this assignment was invalid. See ECF
No. 1 at 4, 6, 9-11; ECF No. 8-2 at 8-10, 12-13. Clark's
FDCPA, fraud, and quiet title claims all arise from this
single “transactional nucleus of facts, ” so the
claims in Clark's complaint are identical to the claims
in his suit before Judge Dorsey.
also alleges that a 2018 notice of default and election to
sell violated the FDCPA because it constituted harassment and
a false representation. ECF No. 1 at 4-5; ECF No. 14 at 13
(“filing a foreclosure action on 8/27/2018 . . . shows
‘harassment and abuse' according to FDCPA Public
Law 806 Sections 1, and 4, as well as ‘false and
misleading representation' according to FDCPA Public Law
807 Sections 5, 9, 10, and 13”). Clark argues that
these allegations cannot be precluded because the violations
occurred after Judge Dorsey's order. Barclays responds
that this claim is also precluded because it is “is
only a violation if the January 9, 2009 assignment is void,
which is res judicata.” ECF No. 15 at 4.
assuming these claims are not precluded, Clark fails to state
a plausible claim for relief because the 2018 notice of
default and election to sell was not an attempt to collect a
debt under the FDCPA. See Vien-Phuong Thi Ho v.
Recontrust Co., NA, 858 F.3d 568, 571-72 (9th Cir. 2017)
(“The object of a non-judicial foreclosure is to retake
and resell the security, not to collect money from the
borrower. . . . Thus, actions taken to facilitate a
non-judicial foreclosure, such as sending the notice of
default and notice of sale, are not attempts to collect
‘debt' as that term ...