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Robert Albers and Catherine Albers v. Nationstar Mortgage LLC

January 3, 2011

ROBERT ALBERS AND CATHERINE ALBERS
PLAINTIFFS,
v.
NATIONSTAR MORTGAGE LLC, DEFENDANT.



The opinion of the court was delivered by: Edward F. Shea United States District Judge

ORDER DENYING AND DENYING AS MOOT IN PART DEFENDANT'S MOTION TO DISMISS

Before the Court, without oral argument, is Defendant Nationstar Mortgage, Inc.'s ("Nationastar") Motion to Dismiss (Ct. Rec. 22), which seeks dismissal of the Complaint under Federal Rule of Civil Procedure 12(b)(6) and (c). Plaintiffs Robert and Catherine Albers oppose the motion as it relates to the claims asserted by Plaintiffs. For the reasons stated below, the Court denies and denies as moot Nationstar's motion and dismisses this action.

A. Background*fn1

Plaintiffs borrowed money and used their home as collateral. The lender agreed to impound amounts for property taxes and hazard insurance.

During 2008, GMAC Mortgage, LLC ("GMAC") serviced Plaintiffs' loan, including managing the "impound account" from which GMAC paid Plaintiffs' property taxes and hazard insurance. GMAC, however, overpaid the county property taxes owed by Plaintiffs. Following this overpayment, GMAC attempted to collect additional funds from Plaintiffs. Plaintiffs repeatedly informed GMAC that it overpaid the property taxes. GMAC, however, refused to correct its accounting and instead began diverting Plaintiffs' timely principal and interest payments to the impound account. GMAC then alleged that Plaintiffs' principal and interest payments were in default.

Nationstar then began servicing the loan and likewise alleged that Plaintiffs' loan was in default. Nationstar repeatedly threatened foreclosure.

On July 14, 2009, Plaintiffs filed the Complaint, alleging 1) Nationstar violated the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., 2) GMAC violated the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2605, and 3) both Nationstar and GMAC violated the Washington Consumer Protection Act (CPA), RCW 19.86 et seq. GMAC answered on August 25, 2009 (ECF No. 5), and Nationstar answered on April 26, 2010 (ECF No. 11).

On July 15, 2010, Plaintiffs and GMAC agreed to dismiss the claims against GMAC. (ECF Nos. 15 & 16.) On August 24, 2010, a Scheduling Order was entered setting trial on Plaintiffs' remaining claims against Nationstar on July 11, 2011. (ECF No. 21.) Nationstar filed the instant motion to dismiss on November 12, 2010. (ECF No. 22.)

B. Standard

A Rule 12(b)(6) motion to dismiss may be filed post answer. Fed. R. Civ. P. 12(h)(2). And because Nationstar's motion does not go to the merits of the action but rather focuses on the Complaint's allegations, this Rule 12(b)(6) motion is properly considered under Rule 12(c) (judgment on the pleadings) and not Rule 56 (summary judgment).

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the pleadings. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the right to relief above the speculative level. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). Conversely, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show that the pleader is entitled to relief. Twombly, 550 U.S. at 555. In ruling on a motion under Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff and accept all material factual allegations in the complaint, as well as any reasonable inferences drawn therefrom. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).

C. Authority and Analysis

Nationstar seeks dismissal of the wrongful-foreclosure, CPA, intentional infliction of emotional distress, FDCPA, and RESPA claims. Because the Complaint does not allege wrongful foreclosure, intentional infliction of emotional distress, or RESPA claims against Nationstar, the motion to dismiss is denied as moot in part. For the following reasons, ...


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