Ladouceur v. Wells Fargo

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 16, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DAVID LADOUCEUR; LISA
LADOUCEUR,
Plaintiffs - Appellants,
v. No. 16-1232
(D.C. No. 1:15-CV-02080-WYD-MJW)
WELLS FARGO; WELLS FARGO (D. Colo.)
BANK; WELLS FARGO & CO; WELLS
FARGO N.A.; WELLS FARGO
PROPERTY MORTGAGE; WELLS
FARGO ASSET SECURITIES
CORPORATION,
Defendants - Appellees.
–––––––––––––––––––––––––––––––––––
DAVID LADOUCEUR; LISA
LADOUCEUR,
Plaintiffs - Appellants,
v. No. 16-1267
(D.C. No. 1:15-CV-02416-WYD-NYW)
WELLS FARGO BANK N.A.; WELLS (D. Colo.)
FARGO HOME MORTGAGE, INC.; U.S.
BANK NATIONAL ASSOCIATION, as
Trustee for Wells Fargo Asset Securities
Corporation, Mortgage Pass-Through
Certificates Series 2004-EE,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
David and Lisa Ladouceur appeal the district court’s dismissal of their two
complaints alleging Wells Fargo Bank, N.A.1 was not entitled to foreclose on their
two residential properties, one in Westminster, Colorado (No. 16-1232), the other in
Boulder, Colorado (No. 16-1267).2 We affirm the district court’s Fed. R. Civ. P.
12(b)(6) dismissal because our independent review confirms the Ladouceurs have
failed to state a plausible cause of action. See George v. Urban Settlement Servs.,
833 F.3d 1242, 1247 (10th Cir. 2016) (holding we review a Rule 12(b)(6) dismissal
de novo, assuming the truth of the well-pleaded factual allegations and asking
whether the plaintiff stated a facially plausible claim for relief).
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
1
The Ladouceurs listed other Wells Fargo entities as defendants, some
improperly named. Unless otherwise specified, “Wells Fargo” refers to Wells Fargo
Bank, N.A.
2
The Ladouceurs assert the same legal claims with respect to both complaints;
thus, we have consolidated the appeals.
2
BACKGROUND
The Ladouceurs borrowed $1,000,000 from Wells Fargo Home Mortgage,
secured by a deed of trust on the Westminster property. They later borrowed another
$450,000 from Wells Fargo Home Mortgage, secured by a deed of trust on the
Boulder property. Wells Fargo, successor by merger to Wells Fargo Home
Mortgage, assigned the deeds of trust to securitized trusts created to pool numerous
residential mortgages.3 Wells Fargo continued to service both mortgages.
The Ladouceurs defaulted on both loans, and Wells Fargo, through the trustees
of the loans it services, initiated foreclosure proceedings on both properties in
Colorado state court. The state court authorized the Westminster foreclosure, ruling
Wells Fargo had standing to foreclose and the Ladouceurs didn’t dispute that they
were in default, but the Boulder state court foreclosure proceedings remain pending.
The Ladouceurs filed the present federal court complaints against Wells Fargo
claiming it lacked standing to foreclose on the two properties because it didn’t own
the security interests in their properties, and that its collection and foreclosure actions
violated the Fair Debt Collection Practice Act (FDCPA). Wells Fargo moved to
dismiss the complaints for failure to state a claim. It attached all of the relevant and
public loan documentation as permitted by Fed. R. Evid. 201(b). See Jacobsen v.
Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002) (holding a court may consider
documents external to the complaint in a Rule 12(b)(6) motion if they “are central to
3
Securitization is the “process of pooling loans and selling them to investors
on the open market.” Commonwealth Prop. Advocates, LLC v. Mortg. Elec.
Registration Sys., Inc., 680 F.3d 1194, 1197 n.2 (10th Cir. 2011).
3
the plaintiff’s claim and the parties do not dispute the documents’ authenticity”).
The district court dismissed the Ladouceurs’ complaints, ruling Wells Fargo had
standing to foreclose on both loans and wasn’t a debt collector subject to the FDCPA
because it was collecting the debt it originated and still serviced.4
DISCUSSION
On appeal, the Ladouceurs first assert that they “are of the belief that Wells
Fargo is a debt collector” subject to the FDCPA. Aplt. Br. at 12. They argue that
Wells Fargo admitted it was a debt collector by so identifying itself on forms; thus,
the district court erred in ruling the FDCPA only applies to parties collecting the debt
of another. We find no legal basis for the Ladouceurs’ belief. The FDCPA defines a
“debt collector” in relevant part as one “who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed or due another.”
15 U.S.C. § 1692a(6) (emphasis added). “The legislative history of section 1692a(6)
indicates conclusively that a debt collector [under the FDCPA] does not include the
consumer’s creditors [or] a mortgage servicing company. . . .” Perry v. Stewart Title
Co., 756 F.2d 1197, 1208 (5th Cir. 1985). See also Larkin v. Bank of Am., N.A.
(In re Larkin), 553 B.R. 428, 440 & nn.54 & 55 (Bankr. D. Kan. 2016) (collecting
cases wherein courts have held that “mortgage lenders and servicers are not ‘debt
collectors’ under the FDCPA in connection with collecting their own consumer
debts . . . even when the mortgage lender ‘self-identifies’ as a debt collector”).
4
The Ladouceurs don’t challenge any of the other rulings by the district court.
4
The Ladouceurs rely exclusively on Schlosser v. Fairbanks Capital Corp.,
323 F.3d 534, 536 (7th Cir. 2003), which held that an FDCPA debt collector applies
to a party that acquires the debt of another after it was already in default. But
Schlosser isn’t relevant here, as Wells Fargo didn’t acquire the Ladouceurs’ debts in
default, but originated and serviced the loans. Moreover, Schlosser also held,
consistent with the district court, that the FDCPA doesn’t apply to creditors. Id.
Thus, the district court correctly concluded that Wells Fargo was not a debt collector
as to the Ladouceurs’ loans, and we need not address their remaining FDCPA
arguments.
Next, the Ladouceurs allege the contracts relating to the securitization of their
loans were fraudulent and the deeds of trust were not properly assigned.
Consequently, they contend Wells Fargo lacks standing to foreclose on their
properties. But as the district court correctly held, the Ladouceurs are not parties to
the securitization assignments and have not stated any plausible claim to relief
arising out of the assignment of the loan documents. “[S]ecuritization of a note does
not alter the borrower’s obligation to repay the loan[; it] is a separate contract,
distinct from the borrower’s debt obligations under the note.” Thompson v. Bank of
Am., N.A., 773 F.3d 741, 749 (6th Cir. 2014).
5
Because the Ladouceurs have failed to state a plausible cause of action, we
affirm the dismissal of their complaints.
Entered for the Court
Nancy L. Moritz
Circuit Judge
6