United States District Court, E.D. Washington
DANIEL P. MELVILLE and MARY R. MELVILLE, Plaintiff,
THE BANK OF NEW YORK MELLON CORPORATION a/k/a THE BANK OF NEW YORK AS TRUSTEE FOR CITICORP MARTGAGE SECURITIES TRUST SERIES 2007-6; CHASE HOME FINANCE; JP MORGAN CHASE BANK NATIONAL ASSOCIATION; NORTHWEST TRUSTEE SERVICES INC; and QUALITY LOAN SERVICE CORP OF WASHINGTON, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTIONS TO DISMISS
MALOUF PETERSON UNITED STATES DISTRICT JUDGE
THE COURT are two motions to dismiss Plaintiffs'
complaint pursuant to Fed.R.Civ.P. 12(b)(6). ECF Nos. 5, 21.
The first was filed by Northwest Trustee Services, Inc.
(“NWTS”), ECF No. 5, and the second was filed by
The Bank of New York Mellon Corporation (“Bank of New
York”), Chase Home Finance, and JP Morgan Chase Bank
National Association (“JP Morgan Chase Bank”),
ECF No. 21. Quality Loan Service Corporation of Washington
(“QLS”) filed a joinder to the motion to dismiss
filed by Bank of New York, Chase Home Finance, and JP Morgan
Chase Bank. ECF No. 24. Both motions to dismiss address
Plaintiffs' January 23, 2017, complaint alleging that
Defendants violated the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. § 1692 et al., and converted
Plaintiffs' property. ECF No. 1. The Court has reviewed
all the pleadings relevant to the Fed.R.Civ.P. 12(b)(6) issue
currently before the Court and is fully informed.
a married couple, bring this mortgage-related case after
their home was sent into foreclosure proceedings. They make
the following allegations in their complaint. On December 19,
2007, Plaintiffs executed a promissory note, secured by a
Deed of Trust, to Cherry Creek Mortgage Co., Inc. with
Stewart Title serving as trustee. ECF No. 1-1 at 11-21.
Plaintiffs allege that no parties outside the originally
appointed beneficiary, Cherry Creek Mortgage Co., and
trustee, Stewart Title, were identified as having any
interest in the Deed of Trust, and the Deed of Trust was
never transferred or assigned to any party and “there
is no evidence anywhere of any transfers or assignments of
this instrument.” ECF No. 1. Plaintiffs also allege that
Defendants acquired personal and banking information
belonging to Plaintiffs and a forged copy of Plaintiffs'
allege that in the twelve months prior to filing the
complaint, Defendants began sending written communications
stating that they had legal rights to the property under the
Deed of Trust. Plaintiffs asked Defendants to provide some
verification that they had these rights and requested that
Defendants identify the source of their knowledge of
Plaintiffs' financial information. Plaintiffs allege that
Defendants failed to respond to any of these requests besides
providing copies of records from the county recorder's
office. ECF No. 1.
relative positions of the Defendants are as follows.
According to the unrecorded Notice of Trustee's Sale,
Cherry Creek Mortgage Co. transferred its beneficiary
interest in the Deed of Trust to JPMorgan Chase Bank. ECF No.
1-1. According to a securitization audit submitted by
Plaintiffs, the Deed of Trust may have been securitized with
Chase Home Finance acting as the sponsor and seller, Chase
Mortgage Finance acting as Depositor, Chase Mortgage Finance
Trust Series 2007-S6 acting as the issuing entity, the Bank
of New York acting as trustee, and JPMorgan Chase Bank as
servicer. ECF No. 1-1 at 81-102.
to NWTS, it acted as a successor trustee on the Deed of
Trust. ECF No. 5 at 2. Likewise, NWTS alleges that QLS was
appointed successor trustee under the Deed of Trust. ECF No.
5 at 3. QLS sent correspondence to Plaintiffs as the
successor trustee. ECF Nos. 1-1 at 25-27.
specifically bring ten claims for relief: counts (1)-(5)
allege that each Defendant violated provisions of the FDCPA,
including 15 U.S.C. §§ 1692e and 1692g; and counts
(6)-(10) each allege that each Defendant converted
Court has subject matter jurisdiction over the FDCPA claims
under 28 U.S.C. § 1331 and over the conversion claims
under 28 U.S.C. § 1367.
Federal Rules of Civil Procedure allow for the dismissal of a
complaint where a plaintiff fails to state a claim upon which
relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to
dismiss brought pursuant to this rule “tests the legal
sufficiency of a claim.” Navarro v. Block, 250
F.3d 729, 732 (9th Cir. 2001). In reviewing the sufficiency
of a complaint, a court accepts all well-pleaded allegations
as true and construes those allegations in the light most
favorable to the non-moving party. Daniels-Hall, 629
F.3d at 998 (citing Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031-32 (9th Cir.
withstand dismissal, a complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). While specific legal
theories need not be pleaded, the pleadings must put the
opposing party on notice of the claim. Fontana v.
Haskin, 262 F.3d 871, 877 (9th Cir. 2001) (citing
Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Plaintiffs are not required to establish a probability of
success on the merits, but they must demonstrate “more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). “[A]
[p]laintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
the Court Considers
a district court may not consider material beyond the
complaint in ruling on a Rule 12(b)(6) motion to dismiss.
Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir.
2001). However, the Ninth Circuit has carved out limited
exceptions to this rule. First, a court may consider material
properly submitted as part of the complaint. Id.
Second, a court may consider documents that are not
physically attached to the pleading if their contents are
alleged in the complaint and no party questions their
authenticity. Id. Third, under Federal Rule of
Evidence 201, a court may take judicial notice of matters of
public record. Id. at 688-89; see also United
States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003)
(citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th
201 provides that “[t]he court may judicially notice a
fact that is not subject to reasonable dispute because it . .
. can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed.R.Evid.
201(b)(2). “A trial court may presume that public
records are authentic and trustworthy, ” Gilbrook
v. City of Westminster, 177 F.3d 839, 858 (9th Cir.
1999), and thus, falls under Rule 201. See also Allshouse
v. Caliber Home Loans, Inc., No. CV1401287DMGJCX, 2014
WL 12594210, at *3 (C.D. Cal. Oct. 29, 2014) (“Courts
routinely take judicial notice of assignments of deed of
trust and similar recorded documents” in motions to
on the above authority, this Court considers the documents
Plaintiffs attached to their original complaint. Defendants
also ask the Court to consider filings from Plaintiff Mary
Melville's Chapter 13 Bankruptcy, Case No. 14-02203-FPC.
ECF Nos. 5, 21, 24. This Plan is attached to Defendants'
motions, ECF Nos. 5-1, 22, and can be considered by the
Court. Additionally, Defendant NWTS asks the Court to take
judicial notice of Instrument Nos. 6244607, 6255008, and
6535025 recorded with the Spokane County Auditor. ECF No. 5.
However, these ...