Ladouceur v. Wells Fargo
682 F. App'x 649
| 10th Cir. | 2017Background
- David and Lisa Ladouceur obtained two mortgages from Wells Fargo Home Mortgage: $1,000,000 secured by a Westminster, CO property and $450,000 secured by a Boulder, CO property; Wells Fargo later merged and continued servicing both loans.
- Wells Fargo assigned the deeds of trust into securitized trusts; it remained the loan servicer and initiated foreclosure after the Ladouceurs defaulted.
- Colorado state court authorized the Westminster foreclosure (finding Wells Fargo had standing); Boulder foreclosure remains pending.
- The Ladouceurs sued in federal court alleging Wells Fargo lacked standing to foreclose because securitization/assignments were fraudulent, and that Wells Fargo violated the FDCPA by acting as a debt collector.
- Wells Fargo moved to dismiss under Fed. R. Civ. P. 12(b)(6); the district court considered public loan documents and dismissed, holding Wells Fargo had standing and was not an FDCPA debt collector when collecting its own loans.
- On appeal, the Tenth Circuit affirmed, finding the complaints failed to state a plausible claim for relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wells Fargo is a "debt collector" under the FDCPA | Wells Fargo identified itself as a debt collector on forms; thus FDCPA applies | Wells Fargo originated and services the loans and is not a debt collector for its own debts | Wells Fargo is not an FDCPA debt collector when collecting/originating its own loans; dismissal affirmed |
| Whether securitization/assignments deprived Wells Fargo of standing to foreclose | Securitization and assignments were fraudulent; deeds of trust improperly assigned, so Wells Fargo lacks standing | Borrowers are not parties to securitization; securitization does not change borrower obligations and does not defeat servicer's standing | Plaintiffs not parties to assignment contracts and failed to plausibly allege harm; securitization doesn't alter borrower obligation; dismissal affirmed |
| Whether Schlosser controls (acquisition-after-default theory) | Schlosser supports treating servicer as debt collector when debt acquired after default | Wells Fargo originated and serviced the loans, not an acquirer of defaulted debt; Schlosser inapplicable | Schlosser inapposite because Wells Fargo did not acquire the loans after default; court rejects plaintiff reliance |
| Whether loan documents attached may be considered on 12(b)(6) | Plaintiffs implied documents are disputed or inapplicable | Documents are public, central to claims, and authentic; court may consider them on motion | Court may consider central, authentic public loan documents on 12(b)(6); relied on them and dismissed claims |
Key Cases Cited
- George v. Urban Settlement Servs., 833 F.3d 1242 (10th Cir. 2016) (standard of review for Rule 12(b)(6) dismissal)
- Jacobsen v. Deseret Book Co., 287 F.3d 936 (10th Cir. 2002) (courts may consider central, undisputed documents on a Rule 12(b)(6) motion)
- Perry v. Stewart Title Co., 756 F.2d 1197 (5th Cir. 1985) (legislative history indicates creditors and mortgage servicers are not FDCPA debt collectors)
- Schlosser v. Fairbanks Capital Corp., 323 F.3d 534 (7th Cir. 2003) (acquirer-after-default can be a debt collector, but does not apply to original creditors)
- Thompson v. Bank of Am., N.A., 773 F.3d 741 (6th Cir. 2014) (securitization does not alter borrower’s repayment obligation)
- Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194 (10th Cir. 2011) (definition/explanation of securitization)