Cave v. National Default Servicing Corporation
2:15-cv-00122
D. Nev.Jun 22, 2015Background
- Plaintiff Chris H. Cave obtained a $272,000 loan in 2007 secured by a deed of trust on property in Clark County, Nevada; Washington Mutual’s loan assets (including the note and deed) were later acquired by JPMorgan Chase (Chase) after FDIC receivership.
- Plaintiff recorded various notarized statements in 2012 claiming payments to Chase and asserting he had discharged the debt; wife also recorded a notarized statement.
- National Default Servicing Corporation (National Default) was substituted as trustee and, after plaintiff defaulted, recorded a notice of default and a notice of trustee’s sale (sale scheduled Feb 6, 2015).
- Plaintiff filed suit (Jan 21, 2015) alleging violations of the FCRA, FDCPA, invasion of privacy, negligent/wanton/intentional hiring and supervision, and recorded a lis pendens.
- Defendants moved to dismiss for failure to state a claim and to expunge the lis pendens; National Default joined Chase’s motions. Plaintiff sought leave to amend to add Michael A. Bosco as a defendant.
- The court dismissed all claims for failure to state a claim, granted the motion to expunge the lis pendens, and denied plaintiff’s motions to amend and to expand page limits as futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FCRA (§ 1681s–2(b)) liability of Chase as furnisher | Cave alleges defendants reported inaccurate negative information and that he disputed the report to CRAs | Chase argues Cave did not allege any CRA notified Chase of a dispute (no triggering notice), and negative reporting was likely accurate given default | Dismissed — plaintiff failed to allege CRA notice to Chase or plausible inaccuracy |
| Invasion of privacy (public disclosure/intrusion) | Cave claims Chase obtained and disseminated his private credit info and he has a right to investigate | Chase contends no public disclosure to the level required and no allegations of intentional, highly offensive intrusion | Dismissed — no plausible factual allegations of an intentional, highly offensive intrusion or public disclosure |
| Negligent/wanton/intentional hiring & supervision | Cave alleges defendants hired/supervised incompetent agents causing harm | Defendants argue plaintiff pleads no specific employees, no alleged incompetence, no breached hiring/supervision duties | Dismissed — plaintiff failed to plead duty, breach, or facts linking hiring/supervision failures to harm |
| FDCPA liability for foreclosure-related acts | Cave asserts debt-collection violations by defendants | Defendants argue nonjudicial foreclosure activities are not FDCPA “debt collection” | Dismissed — foreclosure-related activities are outside FDCPA debt-collection scope |
| Lis pendens (NRS § 14.015(3)) | Cave recorded lis pendens to protect property pending claims | Defendants moved to expunge because plaintiff’s claims fail as a matter of law | Granted — plaintiff did not show he was likely to prevail; all claims dismissed |
| Motion to amend to add Michael Bosco | Cave seeks to add Bosco and alleged conspiratorial/constitutional claims | Defendants did not respond; court evaluates proposed amendment for futility | Denied — amendment would be futile; no facts connecting Bosco or stating cognizable constitutional claims |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (two-step Iqbal/Twombly pleading analysis)
- Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) (Ninth Circuit guidance on plausibility and factual specificity)
- Okeke v. Biomat USA, Inc., 927 F. Supp. 2d 1021 (D. Nev. 2013) (elements of negligent training/supervision in Nevada)
- Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217 (1996) (negligent hiring duty to conduct reasonable background checks)
- Diessner v. Mortgage Electronic Registration Sys., Inc., 618 F. Supp. 2d 1184 (D. Nev. 2009) (nonjudicial foreclosure activities are not FDCPA debt collection)