Dowers v. Nationstar Mortgage, No. 15-15178 (9th Cir. 2017)
Annotate this CasePlaintiffs filed suit against Nationstar and others, asserting claims relating to defendants' servicing of plaintiffs' home loan. Plaintiffs alleged violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692-1692p; intentional infliction of emotional distress (IIED); and a violation of the Nevada Deceptive Trade Practices Act (DTPA), Nev. Rev. Stat. 598.0915–598.0925, 598.0934. The district court dismissed the complaint. The court concluded that the district court properly dismissed plaintiffs' claims of violations of sections 1692c(a)(2), 1692d, and 1692e pursuant to Ho v. ReconTrust Co. The court reasoned that Nationstar was not engaged in "debt collection" and thus defendants were not "debt collectors" when interacting with plaintiffs. The court concluded, however, that the district court erred in dismissing plaintiffs' claim under section 1692f(6) on the ground that Nationstar was not collecting a debt. The court explained that, unlike sections 1692c(a)(2), 1692d, and 1692e, the definition of debt collector under section 1692f(6) includes a person enforcing a security interest. In this case, plaintiffs alleged that Nationstar threatened to take non-judicial action to dispossess plaintiffs of their home without a legal ability to do so. The court noted that such conduct is exactly what section 1692f(6) protects borrowers against. Finally, the court concluded that the district court correctly dismissed plaintiffs' claims of IIED and of violation of the DTPA. Accordingly, the court affirmed in part, reversed in part, and remanded.
Court Description: Home Loans. The panel affirmed in part and reversed in part the district court’s Fed. R. Civ. P. 12(b)(6) dismissal of plaintiffs’ action asserting claims relating to the defendants’ servicing of plaintiffs’ home loan. Affirming in part, the panel held that plaintiffs’ Fair Debt Collection Practices Act claims under 15 U.S.C. §§ 1692c(a)(2), 1692d, and 1692e failed because the defendants did not engage in “debt collection” and were not acting as “debt collectors.” Reversing in part, the panel disagreed with the district court’s dismissal with respect to the claim under 15 U.S.C. § 1692f(6), and held that that provision governed defendants’ alleged conduct because it expressly applied to the enforcement of security interests such as a deed of trust. The panel concluded that the district court should not have dismissed Count Four on the ground that Nationstar Mortgage, LLC was engaging in conduct related to non-judicial foreclosure. The panel held that the district court correctly dismissed plaintiffs’ claim of intentional infliction of emotional distress. The panel concluded that plaintiffs’ allegations did not meet the first element of extreme and outrageous conduct for such a claim under Nevada law. DOWERS V. NATIONSTAR MORTGAGE 3 The panel held that the district court properly dismissed plaintiffs’ claim of a violation of the Nevada Deceptive Trade Practices Act. The panel agreed with the district court’s prediction that the Supreme Court of Nevada would hold that real estate loans did not fall within the Act.
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