Dale Dowers v. Nationstar Mortgage, LLC
2017 U.S. App. LEXIS 5605
| 9th Cir. | 2017Background
- In 2003 the Dowers refinanced their Las Vegas home; the deed of trust and note were assigned among Bank of America, Wells Fargo entities, and servicers/trustees (ReconTrust, Trustee Corps, Nationstar).
- Notices of default were recorded (2010, 2013); Plaintiffs filed Chapter 7 and received a discharge in 2010; foreclosure mediation in 2014 failed to produce a certificate of foreclosure because original loan documents were unavailable.
- Nationstar sent default/acceleration/foreclosure-threat letters, made phone calls, left notices at the home, and communicated directly with Plaintiffs after their attorney, Fields, demanded communications cease and requested proof of possession of the original note; Trustee Corps later rescinded a 2010 notice of default.
- Plaintiffs sued asserting FDCPA claims (15 U.S.C. §§ 1692c(a)(2), 1692d, 1692e, 1692f(6)), intentional infliction of emotional distress (IIED), and a Nevada Deceptive Trade Practices Act (DTPA) claim; defendants removed and the district court granted a Rule 12(b)(6) dismissal of the complaint.
- On appeal the Ninth Circuit affirmed dismissal of the FDCPA claims under §§ 1692c(a)(2), 1692d, and 1692e, and affirmed dismissal of IIED and DTPA claims, but reversed dismissal of the § 1692f(6) claim and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nationstar's communications constitute "debt collection" under FDCPA provisions §1692c(a)(2), §1692d, §1692e | Dowers: Nationstar’s letters/calls aimed to force payment and violated FDCPA anti‑harassment, false‑statement, and attorney‑contact rules | Nationstar: Conduct was enforcement of a security interest (non‑judicial foreclosure activity), not collection of a money debt, so FDCPA §§1692c/1692d/1692e do not apply | Court: Affirmed dismissal — those provisions apply only to money‑debt collection; Nationstar’s acts were security‑interest enforcement (not covered) |
| Whether §1692f(6) applies to Nationstar’s alleged foreclosure threats and acts | Dowers: §1692f(6) prohibits threats/nonjudicial dispossession when there is no right/intention to possess or if property is exempt — applies here | Nationstar: Argues not a debt collector and foreclosure‑related conduct is outside the FDCPA claims | Court: Reversed dismissal as to §1692f(6) — statute explicitly covers enforcement of security interests and nonjudicial dispossession threats, so claim may proceed |
| Whether Plaintiffs pleaded IIED under Nevada law | Dowers: Conduct (false foreclosure threats, direct contact after counsel retained, delay rescinding default notice) caused severe emotional distress | Nationstar: Conduct not extreme or outrageous as required by Nevada law | Court: Affirmed dismissal — allegations do not meet Nevada’s extreme/outrageous threshold |
| Whether DTPA applies to mortgage servicing/loan transactions | Dowers: DTPA covers deceptive trade practices related to consumer transactions | Nationstar: Real estate loans are not "goods or services" under the DTPA | Court: Affirmed dismissal — real estate loan transactions likely fall outside Nevada DTPA scope |
Key Cases Cited
- Ho v. ReconTrust Co., 840 F.3d 618 (9th Cir. 2016) (FDCPA regulates security‑interest enforcement only via §1692f(6); nonjudicial foreclosure is not collection of money debt for other FDCPA provisions)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: plausibility required to survive Rule 12(b)(6))
- Akhtar v. Mesa, 698 F.3d 1202 (9th Cir. 2012) (courts may consider exhibits attached to the complaint and matters subject to judicial notice on Rule 12(b)(6) review)
- Olivero v. Lowe, 995 P.2d 1023 (Nev. 2000) (elements required to plead IIED under Nevada law)