EDWARD DAVIDSON, Plaintiff and Appellant, v. SETERUS, INC., et al., Defendants and Respondents.
D071502
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 3/13/18
CERTIFIED FOR PUBLICATION; (Super. Ct. No. 37-2016-00006640-CU-BT-CTL)
Capstone Law, Glenn A. Danas, Melissa Grant, Liana C. Carter and Arnab Banerjee for Plaintiff and Appellant.
Larson O‘Brien, Stephen G. Larson, Robert C. O‘Brien and Paul A. Rigali and Steven A. Haskins for Defendants and Respondents.
Wright, Finlay & Zak and Jonathan D. Fink for American Legal & Financial Network, California Mortgage Association and California Mortgage Bankers Association as Amicus Curiae on behalf of Defendants and Respondents.
At issue in this appeal is whether mortgage servicers can be “debt collectors” under California‘s Rosenthal Fair Debt Collection Practices Act (the Rosenthal Act;
In this case, the plaintiff, Edward Davidson, brought a putative class action against Seterus and its parent company, International Business Machines, Inc. (IBM), alleging that the dеfendants violated the Act and the Unfair Competition Law (UCL). The defendants demurred to Davidson‘s complaint, arguing that neither of them is a ” ‘debt collector’ ” who engages in ” ‘debt collection’ ” under the Act.2 The trial court sustained the defendants’ demurrer, concluding that the defendants “are not ‘debt collectors’ because servicing a mortgage is not a form of collecting ‘consumer debts.’ ”3
On appeal, Davidson contends that the trial court erred in determining that mortgage servicers are not “debt collectors” under the Rosenthal Act. We ultimately agree with Davidson‘s contention, in no small part due to our adherence to “the general
We therefore reverse the judgment of the trial court and remand for further proceedings.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
In February 2012, Davidson‘s lender, Suntrust, transferred the servicing of his home mortgage to Seterus.4 In correspondence with Davidson, Seterus included the
According to Davidson, immediately after Seterus began servicing Davidson‘s mortgage in 2012, Seterus started making harassing and annoying telephone calls to Davidson demanding payment of his mortgage. Davidson alleges that Seterus made these telephone calls demanding payment before Seterus had given him his new loan number and before his mortgage payments were due.
Davidson‘s mortgage payments are due on the first day of each month. His practice was, and had always been, to pay his monthly mortgage payment online on the first or second of еach month. As Davidson alleges, “California
Although Davidson had a history of timely paying his mortgage each month, individuals identifying themselves as Seterus employees called Davidson‘s cell phone two to five times per day, every day, between the 3rd and the 16th of each month, “demanding that he pay that month‘s mortgage payment.” If Davidson did not answer his phone, the caller would hang up and repeatedly call again until Davidson did answer the phone. According to Davidson, Seterus employees would also frequently hang up even if Davidson did answer his phone.
Between February 2012 and September 2015, Davidson rеceived hundreds of phone calls from employees of Seterus demanding mortgage payments that Davidson had already paid or that were not yet due. Davidson alleges that Seterus employees would call at intentionally inconvenient times, including early in the morning and while Davidson was at work.5 As soon as the monthly due date for Davidson‘s mortgage payment had passed, Seterus employees would begin making harassing and sometimes threatening phone calls. In fact, Seterus employees would make these phone calls even after Davidson had paid the full amount due, and before the statutory and contractual grace period had lapsed. Davidson attempted to explain this to the callers, but the calls continued.
According to Davidson, the phone calls from Seterus employees included threats to report negative credit information to the credit bureaus, as well as threats to foreclose on Davidson‘s home.6 These threats were made despite the fact that the calls were being made to Davidson and others during the grace period, such that it would have been unlawful for Seterus to commence foreclosure proceedings or to report negative credit information to the credit bureaus.
Davidson notified Seterus numerous times, both in writing and by telephone, that he had already timely paid the full monthly payment amount and requested that the harassing phone calls stop. Seterus employees continued to call, despite Davidson‘s requests. In or around September 2015, Davidson asked an attorney to contact Seterus and demand that the harassing and threatening phone calls cease.
Seterus employees stopped calling Davidson after Seterus received a threat of legal action from Davidson‘s attorney.
Davidson alleges that Seterus‘s collection practices caused him and other borrowers harm, including emotional distress and economic damages. Davidson spent many hours each month sending Seterus requests that its employees cease calling him, speaking to Seterus employees on the phone, and generally dealing with the harassment. Davidson alleges that because he is self-employed and had to deal with the harassing phone calls during regular business hours, he lost potential income.
B. Procedural background
1. The complaint
Davidson filed a putative class action on behalf of California residеnts who have been subjected to the defendants’ allegedly unlawful debt collection practices, in September 2016. Davidson‘s complaint set forth causes of action for violations of the Rosenthal Act and the UCL (
Davidson alleges that the defendants are ” ‘debt collectors’ ” who are subject to the requirements of the Rosenthal Act, and that they were acting as ” ‘debt collectors’ ” when they undertook the allegedly unlawful conduct described in his complaint. Davidson alleges that the defendants’ conduct violates the Rosenthal Act‘s prohibitions against ” ‘[c]ausing a telephone to ring repeatedly or continuously to annoy the person called’ ” and ” ‘communicating by telephone . . . with the debtor with such frequency as to be unreasonable and to constitute an harassment to the debtor under the circumstances.’ ”
Davidson‘s UCL cause of action is based on the alleged violations of the Rosenthal Act which, he asserts, constitute per se violations of the UCL.
2. The defendants’ demurrer
The defendants filed a demurrer to Davidson‘s complaint on May 11, 2016. The defendants argued that Davidson is unable to state facts sufficient to constitute a cause of action under the Rosenthal Act because neither Seterus nor IBM is a ” ‘debt collector’ ” who ” ‘engages in debt collection’ ” under the Rosenthal Act. IBM also argued that the cause of action against IBM is too uncertain because the complaint does not allege sufficient facts to establish that IBM is a debt collector and that it is liable for Seterus‘s conduct.
After full briefing, the trial court issued a tentative ruling on the defendants’ demurrer on Septembеr 6, 2016, in which it indicated its intention to sustain the demurrer without leave to amend. The court held a hearing on the matter on September 9, and subsequently adopted its tentative ruling. In sustaining the demurrer without leave to amend, the trial court acknowledged the existence of a split of authority in the federal courts as to whether the Rosenthal Act‘s definition of “debt collector” includes a
The trial court entered judgment in favor of the defendants on October 5, 2016. Davidson filed a timely notice of appeal.
III. DISCUSSION
A. Legal standards on appeal from the sustaining of a demurrer without leave to amend
We apply the following well-established law in reviewing a trial court‘s order sustaining a demurrer without leave to amend: “We independently review the ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action. [Citation.] We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken. [Citation.] We construe the pleading in a reasonable manner and read the allegations in context.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111 (Fremont Indemnity).)
B. The trial court erred in concluding that a mortgage servicer can never be a “debt collector” under the Rosenthal Act
1. Statutory interpretation standards
This case hinges on the proper interpretation of the Rosenthal Act. “The basic rules of statutory construction are well established. ‘When construing a statute, a court seeks to determine and give effect to the intent of the enacting legislative body.’ [Citation.] ’ “We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. [Citation.] The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory cоntext.” [Citation.] If the plain, commonsense meaning of a statute‘s words is unambiguous, the plain meaning controls.’ ” (People v. King (2006) 38 Cal.4th 617, 622.)
“If, however, ‘the statutory language may reasonably be given more than one interpretation, ” ’ “courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory
2. Statutory and legal framework
The Rosenthal Act was enacted “to prohibit debt collectors from engaging in unfair or deceptive acts or practices in the collection of consumer debts.” (
The Rosenthal Act defines a “debt collector” as “any person who, in the ordinary course of business, regularly, оn behalf of himself or herself or others, engaged in debt collection.” (
Thus, a debt collector is a person who regularly engages in the act or practice of collecting money, property or their equivalent that is due or owing by a natural person as a result of a transaction between that person and another person, in which the natural person acquired property, services, or money on credit, primarily for personal, family, or household purposes.
3. Analysis
The Rosenthal Act is silent with respect to whether it applies to persons or entities attempting to collect mortgage debt; the definitions of “debt collector,” “consumer debt,” and “consumer credit transaction” make no reference to mortgage lenders and/or servicers or to mortgage debt. Given that mortgage debt is neither expressly included nor excluded from the definition of “consumer debt,” and that a mortgage transaction is neither expressly included nor excluded from the definition of “consumer credit transaction,” we look to the words of the statute to determine whether they can be understood to either include or exclude from the statute‘s purview mortgage debt or mortgage lenders and/or
The phrase, “consumer credit transaction” includes any “transaction between a natural person and another person in which property, services or money is acquired on credit by that natural person from such other person primarily for personal, family, or household purposes.” (
The obtaining of a mortgage involves a transaction in which a natural person acquires property by way of borrowing the funds used to obtain the property from another person or entity without full immediate payment and with the promise to pay back those funds. It is readily apparent that persons who obtain mortgages very often do so in order to purchase a primary or even secondary residence, which may be considered to be a “personal, family, or household purpose[ ].” (
We reject the defendants’ attempt to distinguish the debt at issue in Alborzian, which was no longer seсured by the property because of the foreclosure process, from Davidson‘s debt or a debt secured by a first mortgage. We see nothing in the Rosenthal Act that would allow debts that were acquired for personal, family, or household purposes to be treated differently under the Rosenthal Act on the ground that one debt remains secured by real property while the other does not.
In arguing that the Rosenthal Act does not apply here, the defendants suggest that mortgage debt is not debt ” ‘obtained primarily for personal, family, or household purposes.’ ”10 However, defendants fail to explain why this would be so. We acknowledge that the phrase “consumer,” when used as an adjective to modify other nouns, has often been understood in common parlance to relate to transactions that involve retail purchases, as opposed to transactions involving real estate. However, when one examines the definitions provided in the Rosenthal Act, it becomes clear that thе focus of the Rosenthal Act is not whether a given transaction involves personal property as opposed to real property, but rather, whether the transaction was engaged in by a natural person for personal purposes, as opposed to by a corporation or natural person for business purposes. It is clear that a large number, if not the vast majority, of individuals who obtain a mortgage do so for the purpose of purchasing a personal or family residence. This would fall within the literal terms of Rosenthal Act‘s definition of debt
Although the defendants concede that “secured debt could still be a ‘consumer debt,’ ” they nevertheless argue that this “does not mean a mortgage debt is a consumer debt.” The defendants explain that, in their view, “[t]he deciding factor is not whether the debt is ‘secured,’ but whether the debt was obtained in exchange for goods or services
We also reject the conclusory argument in defendants’ briefing that a real estate transaction simply cannot be considered to be a “consumer” transaction. The defendants contend, in essence, that a “real estate transaction” is an “economic transaction for a fixed and permanent asset,” and usually involves “relative complexity” and a “mountain of paperwork, only some of it related to the actual funding of the transaction.” According to the defendants, these facts somehow mean that such a transaction cannot be considered to be a “consumer transaction.” As we have explained, however, the Legislature provided a specific definition of a “consumer credit transaction,” and that definition is sufficiently broad to include transactions that involve real property; there is no indication in the text of the provision that it is intended to exclude transactions that involve real property or the use of real property as security for the debt, nor is there any indication that the statute excludes transactions that are complex or involve “a mountain of paperwork.”
Further, to the extent that the defendants are advocating an interpretation of the Rosenthal Act‘s definition of “consumer debt” that would exclude debt secured by a deed
“In performing acts required by this article, the trustee shall incur no liability for any good faith error resulting from reliance on information provided in good faith by the beneficiary regarding the nature and the amount of the default under the secured obligation, deed of trust, or mortgage. In performing the acts required by this article, a trustee shall not be subject to Title 1.6c (commencing with Section 1788) of Part 4.”
The Legislature carefully crafted this exemption to apply only to a trustee undеr a deed of trust, and only to that trustee‘s performance of the acts required under Article 1 of Chapter 2 of Title 14 of the Civil Code. In enacting this exemption from the Rosenthal Act, the Legislature has expressly limited it to the acts of a trustee exercising the trustee‘s powers under a deed of trust. If the Legislature did not intend for the Rosenthal Act to apply to collection efforts for debts that are secured by a deed of trust to real property or for which foreclosure proceedings could be commenced or were being prosecuted, there would have been no reason to enact the exemption found in
The defendants assert that “the majority of federal courts analyzing the Rosenthal Act have excluded mortgage servicing from the definition of debt collectors,” to support their position. (Some capitalization omitted.) However, many of the authorities that the defendants cite as support for this assertion in fact address a slightly different issue.
The defendants rely on these and the other cases that involve slightly different issues to support their assertion that the “majority” of federal courts have “excluded mortgage servicing from the definition of debt collectors.” We are unconvinced of this proposition. A number of other federal authorities have concluded that mortgage servicers and/or mortgage lenders can and do fall within the definition of “debt collector” under the Rosenthal Act. (See, e.g., Sau King Chan, supra, 2017 WL 1807947, at *3 [” ‘courts have reasoned that a mortgage servicer may be a debt collector under the Rosenthal Act’ “]; Sudhir v. PHH Mortgage Corporation (N.D.Cal., Jan. 19, 2017, No. C 16-06088 WHA) 2017 WL 219681, at *2-3 (Sudhir) [Rosenthal Act‘s definition of “debt collector” is not “as restrictive as its counterpart in the FDCPA,” and concluding that a mortgage servicing company may be a debt collector under the Rosenthal Act]; Castillo v. Nationstar Mortgage LLC (N.D.Cal., Nov. 22, 2016, No. 15-cv-01743-BLF) 2016 WL 6873526, at *5 [plaintiffs had established that Nationstar was a ” ‘debt collector’ under the [Rosenthal Act]” by showing that Nationstar “regularly billed them and collected payments on their mortgage loan debt“]; Cavender v. Wells Fargo Bank (N.D.Cal., Sept. 6, 2016, No. 16-cv-00703-KAW) 2016 WL 4608234, at *8 [in the course of dismissing plaintiff‘s Rosenthal Act claim on different grounds, acknowledging that ” ‘a mortgage servicer may be a “debt collector” under the Rosenthal Act even if it is the original lender, whereas, such an entity would be excluded from the definition of debt collector under the federal act’ “]; Wilkins v. Bank of America, N.A. (E.D.Cal., Aug. 19, 2016, No. 2:15-cv-02341-KJM-EFB) 2016 WL 5940082, at *7 [“A mortgage servicer and an original lender may be ‘debt collectors’ under the Rosenthal Act“]; Reyes v. Wells Fargo Bank, N.A. (N.D.Cal. Jan. 3, 2011, No. C-10-01667 JCS) 2011 WL 30759, at *19 [“[а]s a number of courts have recognized, the definition of ‘debt collector’ is broader under the Rosenthal Act than it is under the FDCPA,” and “a mortgage servicer may be a ‘debt collector’ under the Rosenthal Act even if it is the original lender, whereas, such an entity would be excluded from the definition of debt collector under the federal act“]; Walters v. Fidelity Mortg. of CA, 730 F.Supp.2d at 1203 [mortgage servicer that regularly billed plaintiff and collected payments on her mortgage debt was a
In our view, those federal courts that have concluded that
It is significant that although our Legislature adopted a number of the FDCPA‘s provisions, including, under
The defendants concede that the FDCPA and the Rosenthal Act are not entirely coextensive. However, they nevertheless argue that even though the Rosenthal Act “uses a different definition of debt collector than the [FDCPA],” this does not mean that the Rosenthal Act “regulates mortgage servicers” but the “FDCPA does not.” They insist, instead, that the “[t]he FDCPA and the Rosenthal Act, though using slightly different language, both exclude mortgage servicers.” However, it is clear that the Legislature intended for the Rosenthal Act to provide a broader definition of “debt collector” than that provided in the FDCPA, and, as we have explained, the Rosenthal Act‘s reference to an entity that attempts to collect money that is due as a result of a consumer credit transaction, by its express terms, would not exclude a mortgage servicer. There is no
We therefore conclude that the Rosenthal Act‘s definition of “debt collector” applies to a mortgage servicer who engages in debt collection practices in attempting to obtain repayment of mortgage debt, and that the trial court improperly sustained the defendants’ demurrer on the ground that the Act does not apply to mortgage servicers. Given our reversal of the court‘s ruling with respect to the Rosenthal Act claim, we must also reverse the court‘s ruling with respect to Davidson‘s UCL claim, since that claim is premised on his Rosenthal Act claim.16
C. The trial court erred in concluding that Davidson failed to plead facts sufficient to state a cause of action against IBM on an alter ego theory
Davidson also contends that the trial court erred in its alternative basis for granting IBM‘s demurrer. The trial court concluded that, as to IBM, the complaint failed to plead sufficient facts to demonstrate that IBM could be held liable for the actions of its subsidiary, Seterus. Essentially, the trial court determined that the complaint was insufficient to state a cause of action against IBM because the complaint did not sufficiently allege IBM‘s control of its subsidiary, Seterus.
“It is fundamental that a corporation is a legal entity that is distinct from its shareholders.” (Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1108.) Included in this general principle is the concept that “a parent corporation (so-called because of control
In determining whether to treat a subsidiary as the alter ego of its parent corporation, a court is to assess whether (1) there is ” ‘such unity of interest and
“16. Plaintiff is informed and believes, and thereon alleges, that each and all of the acts and omissions alleged herein were performed by, or are attributable to, Defendants SETERUS, INC. and INTERNATIONAL BUSINESS MACHINES CORPORATION and/or DOES 1 through 10 (collectively ‘DEFENDANTS’ or ‘SETERUS, INC.‘), each acting as the agent for the other, with legal authority to act on the other‘s behalf. The acts of any and all Defendants were in accordance with, and represent, the official policy of Defendants.
“17. At all relevant times, DEFENDANTS, and each of them, ratified each and every act or omission complained of herein. At all relevant times, DEFENDANTS, and each of them, aided and abetted the acts and omissions of each and all the other Defendants in proximately causing the damages herein alleged.
“18. Plaintiff is informed and believes, and thereon alleges, that еach of said Defendants is in some manner intentionally, negligently, or otherwise responsible for the acts, omissions, occurrences, and transactions alleged herein.”
CONCLUSION
The judgment of the trial court is reversed. Appellant Davidson is entitled to costs on appeal.
AARON, J.
WE CONCUR:
NARES, Acting P. J.
HALLER, J.