DocketNumber： No. 10-56884
Judges： Callahan, Korman, Kozinski
Filed Date： 10/19/2016
Status： Precedential
Modified Date： 11/5/2024
Partial Dissent and Partial Concurrence by Judge KORMAN
OPINION
The principal question in this appeal is whether the trustee of a California deed of trust is a “debt collector” under the Fair Debt Collection Practices Act (FDCPA).
FACTS
Vien-Phuong Thi Ho bought a house in Long Beach using funds she borrowed from Countrywide Bank. The loan was secured by a deed of trust. A deed of trust involves three parties. See Yvanova v. New Century Mortg. Corp., 62 Cal.4th 919, 926-27, 199 Cal.Rptr.3d 66, 365 P.3d 845 (Cal. 2016) (explaining California deeds of trust). The first party is the lender, who is the trust beneficiary. The second party is the borrower-trustor, who holds equitable title to the property. The third party is the trustee, an agent for both the lender and the borrower who holds legal title to the property and is authorized to sell the property if the debtor defaults. Id. at 927, 199 Cal.Rptr.3d 66, 365 P.3d 845. In this case, the lender was Countrywide, the borrower was Ho and the trustee was ReconTrust.
After Ho began missing loan payments, ReconTrust initiated a non-judicial foreclosure. See id. at 926-27, 199 Cal.Rptr.3d 66, 365 P.3d 845 (detailing California’s complex statutory procedure governing nonjudicial foreclosures). As the first step in this process, ReconTrust recorded a notice of default and mailed this notice to Ho. See Cal. Civ. Code § 2924(a)(1). The notice advised Ho that she owed more than $20,000 on her loan and that she “may have the legal right to bring [her] account in good standing by paying all of [her] past
Ho filed this lawsuit alleging that Recon-Trust violated the FDCPA by sending her notices that misrepresented the amount of debt she owed. See 15 U.S.C. § 1692e(2)(A). Ho also sought to rescind her mortgage transaction under the Truth in Lending Act (TILA) on the ground that the defendants had perpetrated fraud against her. See 15 U.S.C. § 1635(a). The district court twice dismissed Ho’s rescission claim without prejudice, and Ho did not replead it. The district court then granted ReconTrust’s motion to dismiss Ho’s FDCPA claims.
Ho appeals, arguing that ReconTrust is a “debt collector” because the notice of default and the notice of sale constitute attempts to collect debt. Because both notices threatened foreclosure unless Ho brought her account current, she reasonably viewed those documents as an inducement to pay up. Ho also argues that her TILA rescission claim should be reinstated on appeal because our circuit clarified the requirements for such a claim between the district court’s dismissal and this appeal. See Merritt v. Countrywide Fin. Corp., 759 F.3d 1023, 1032-33 (9th Cir. 2014).
DISCUSSION
I
The FDCPA subjects “debt collectors” to civil damages for engaging in certain abusive practices while attempting to collect debts. See §§ 1692d-f, 1692k. The statute’s general definition of “debt collector” captures any entity that “regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due [to] another.” § 1692a(6). Debt is defined as an “obligation ... of a consumer to pay money.” § 1692a(5).
The FDCPA imposes liability only when an entity is attempting to collect debt. 15 U.S.C. § 1692(e). For the purposes of the FDCPA, the word “debt” is synonymous with “money.” 15 U.S.C. § 1692a(5). Thus, ReconTrust would only be liable if it attempted to collect money from Ho. And this it did not do, directly or otherwise. The object of' a non-judicial foreclosure is to retake and resell the security, not to collect money from the borrower. California law does not allow for a deficiency judgment following non-judicial foreclosure. This means that the foreclosure extinguishes the entire debt even if it
The prospect of having property repossessed may, of course, be an inducement to pay off a debt. But that inducement exists by virtue of the lien, regardless of whether foreclosure proceedings actually commence. The fear of having your car impounded may induce you to pay off a stack of accumulated parking tickets, but that doesn’t make the guy with the tow truck a debt collector.
Our holding today affirms the leading case of Hulse v. Ocwen Federal Bank, 195 F.Supp.2d 1188, 1204 (D. Or. 2002), which held that “foreclosing on a trust deed is an entirely different path” than “collecting funds from a debtor.”
The most plausible reading of the statute is that the foreclosure notices were “the enforcement of [a] security interest ]” as contemplated by section 1692f(6) rather than “debt collection” as contemplated by section 1692a. The FDCPA’s general definition of “debt collector,” contained at section 1692a(6), applies to entities that “regularly collect ] or attempt ] to collect, directly or indirectly, debts owed or due or asserted to be owed or due [to] another.” Entities that qualify as debt collectors under this general definition are
We do not hold that the FDCPA intended to exclude all entities whose principal purpose is to enforce security interests. If entities that enforce security interests engage in activities that constitute debt collection, they are debt collectors. We hold only that the enforcement of security interests is not always debt collection. We agree with the dissent that the terms are not mutually exclusive. But they also aren’t coextensive.
We therefore agree with a central premise of Wilson and Glazer: An entity does not become a general “debt collector” if its “only role in the debt collection process is the enforcement of a security interest.” Wilson, 443 F.3d at 378; see Glazer, 704 F.3d at 464. But from there our paths diverge. We view all of ReconTrust’s activities as falling under the umbrella of “enforcement of a security interest.” Under California’s non-judicial foreclosure statutes, ReconTrust could not conduct the trustee’s sale until it sent the notice of default and the notice of sale. If Recon-Trust can administer a trustee’s sale without collecting a debt, it must be able to maintain that status when it takes the statutorily required steps to conduct the trustee’s sale. The right to “enforce” the security interest necessarily implies the right to send the required notices; to hold otherwise would divorce the notices from their context.
The Glazer court rejected this view, noting that it couldn’t think of anyone other than repossessors “whose only role in the collection process is the enforcement of security interests.” 704 F.3d at 464. Glazer explained that a “lawyer principally engaged in mortgage foreclo
The notices at issue in our case didn’t request payment from Ho.
Even though the notices didn’t explicitly request payment, Ho contends that they still qualify as debt collection because they pressured her to send money to Countrywide. See Burnett, 706 F.3d at 1239. But, as we’ve explained, the enforcement of a security interest often creates an incentive to pay the underlying debt. If this were sufficient to transform the enforcement of security interests into debt collection, then all security enforcers would be debt collectors. This would render meaningless the FDCPA’s carefully drawn distinction between debt collectors and enforcers of security interests, and expand the scope of the FDCPA well past the boundary of clear congressional intent and common sense.
Moreover, even if an entity like Recon-Trust did fall under the FDCPA’s general definition of a “debt collector,” it would still be exempt under one of the FDCPA’s
A final consideration weighs in favor of ReeonTrust: Holding trustees liable under the FDCPA would subject them to obligations that would frustrate their ability to comply with the California statutes governing non-judicial foreclosure. Recon-Trust lists a half dozen conflicts between the FDCPA and California law. For example, the FDCPA prohibits debt collectors from communicating with third parties about the debt absent consent from the debtor. 15 U.S.C. § 1692c(b). But California law requires the trustee to announce all trustee’s sales in a newspaper and mail the notice of default to various third parties. See Cal. Civ. Code §§ 2924b(c)(l)-(2), 2924f(b). The FDCPA also prohibits debt collectors from directly communicating with debtors if the debt collector knows that the debtor is represented by counsel. 15 U.S.C. § 1692c(a)(2). California law requires the trustee to mail the notices of default and sale directly to the borrower, and makes no exception for borrowers who are represented by counsel. Cal. Civ. Code. §§ 2924b(b)(1), 2924f(c)(3). In both of these cases, a trustee could not comply with California law without violating the FDCPA.
Things would become even more complicated if the consumer elected to dispute the debt pursuant to the FDCPA. In such a case, a trustee would be required to “cease collection of the debt” until he obtained verification of that debt. 15 U.S.C. § 1692g(b). California law compels trustees to mail a copy of the notice of default within ten business days after recording it. Cal. Civ. Code § 2924b(b)(l). If the consumer disputes his debt as soon as it is recorded, the trustee would have to seek verification of the debt, and would be unable to mail the notice until the debt was verified. In the likely event that such verification took longer than ten days, the trustee would miss California’s statutory deadline for mailing out the notice. And if verification requests or other hassles resulted in a delay of a year or longer, the trustee would be required to restart the foreclosure process. See § 2924g(e)(2).
ReconTrust’s amici suggest that holding trustees liable as debt collectors would “literally prevent [California’s foreclosure] system from functioning.” Brief for United Trustee’s Ass’n et al. as Amici Curiae Supporting Defendants-Appellees, Ho v. ReconTrust (No. 10-56884), 2015 WL 1020492, at *4. In an amicus brief filed in support of Ho, the Consumer Financial Protection Bureau conceded that “a conflict may exist between state and federal law.” Brief for Consumer Financial Protec
Foreclosure is a traditional area of state concern. See BFP v. Resolution Trust Corp., 511 U.S. 531, 544, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (characterizing the regulation of foreclosures as “an essential state interest”); Rank v. Nimmo, 677 F.2d 692, 697 (9th Cir. 1982) (noting that “mortgage foreclosure has traditionally been a matter for state courts and state law”). We are thus especially reluctant to accept an interpretation of a federal statute that would generate conflict between state and federal law. This reluctance flows naturally from the fact that, when Congress legislates “in a field which the States have traditionally occupied,” federal courts “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). We find no such clear purpose here.
We also find no comfort in the dissent’s suggestion that the conflicts between California law and the FDCPA can be mitigated by consent between the parties to a mortgage deal. Dissent at 588-89. The fact that parties may be able to draft their way around conflicts renders them conflicts no less. Relegating future parties to the uncertain process of adding contractual terms may itself upset a state’s carefully drawn scheme of notice and disclosure; additional efforts or more complex terms are themselves costs of that conflict.
When one interpretation of an ambiguous federal statute would create a conflict with state foreclosure law and another interpretation would not, respect for our federal system counsels in favor of the latter. The statutory phrase “debt collector” is notoriously ambiguous, causing our sister circuits to divide as to whether foreclosure-related activities constitute debt collection.
II
The district court twice dismissed Ho’s TILA rescission claim without prejudice, and Ho didn’t replead it in her third complaint. We have held that claims dismissed without prejudice and not replead-ed are not preserved for appeal; they are instead considered “voluntarily dismissed.” See Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012). Here, however, the district court didn’t give Ho a free choice in whether to keep repleading the TILA rescission claim. Rather, the court said that if Ho wished to replead the claim she “would be required to allege that she is prepared and able to pay back the amount of her purchase price less any down-payment she contributed and any payments made since the time of her purchase.” The judge concluded that if Ho “is not able to make that allegation in good faith, she should not continue to maintain a TILA rescission claim.” It’s unclear whether the judge meant this as benevolent advice or a stern command. But a reasonable litigant, particularly one proceeding pro se, could have construed this as a strict condition, one that might have precipitated the judge’s ire or even invited a sanction if disobeyed. Ho could not or would not commit to pay back the loan, and dropped the claim in her third complaint.
The district court based its condition on Yamamoto v. Bank of N.Y., which gave courts equitable discretion to “impose conditions on rescission that assure that the borrower meets her obligations once the creditor has performed its obligations.” 329 F.3d 1167, 1173 (9th Cir. 2003). But, after the district court dismissed Ho’s claims, we held that a mortgagor need not allege the ability to repay the loan in order to state a rescission claim under TILA that can survive a motion to dismiss. Merritt v. Countrywide Fin. Corp., 759 F.3d 1023, 1032-33 (9th Cir. 2014). Ho argues that her rescission claims were properly preserved for appeal and should be reinstated.
Where, as here, the district court dismisses a claim and instructs the plaintiff not to refile the claim unless he includes certain additional allegations that the plaintiff is unable or unwilling to make, the dismissed claim is preserved for appeal even if not repleaded. A plaintiff is the master of his claim and shouldn’t have to choose between defying the district court and making allegations that he is unable or unwilling to bring into court.
This rule is a natural extension of our holding in Lacey. The Lacey rule—which displaced our circuit’s longstanding and notably harsh rule that all claims not re-pleaded in an amended complaint were considered waived—was motivated by two principal concerns: judicial economy and fairness to the parties. 693 F.3d at 925-28. Those concerns apply here. We see no point in forcing a plaintiff into a drawn-out contest of wills with the district court when, for whatever reason, the plaintiff chooses not to comply with a court-imposed condition for repleading. We remand to the district court for consideration of Ho’s TILA rescission claim in light of Merritt v. Countrywide Fin. Corp., 759 F.3d at 1032-33.
AFFIRMED in part, VACATED and REMANDED in part. No costs.
. The district court also dismissed Ho’s other claims under the FDCPA, the Racketeer Influenced and Corrupt Organizations Act and the Real Estate Settlement Procedures Act. We affirm these dismissals in a memorandum disposition filed concurrently herewith.
. It's not clear from the record whether a trustee's sale ever occurred. The notice of sale advised Ho that her home would be sold on a certain date. However, Ho's loan servicer approved a modification of the loan a few days prior to that date. The parties say nothing further about the trustee's sale. For our purposes, it doesn’t matter whether the sale took place. Sale of the house would not render the case moot because Ho is seeking damages.
. The dissent's effort to discount Hulse, dissent at 578, doesn't change the fact that Hulse is indeed the leading case for what other courts have recognized as the majority position. See, e.g., Aurora Loan Servs., LLC v. Kmiecik, 372 Ill.Dec. 586, 992 N.E.2d 125, 134 (Ill.App.2013) ("The minority view taken is that the act of foreclosing on a mortgage is the collection of a debt according to the FDCPA.”). District courts across our circuit have approved of Hulse time and again. See, e.g., Castro v. Exec. Tr. Servs., LLC, No. CV-08-2156-PHX-LOA, 2009 WL 438683, at *6 (D. Ariz. Feb. 23, 2009); Izenberg v. ETS Sens., LLC, 589 F.Supp.2d 1193, 1199 (C.D. Cal. 2008); Ines v. Countrywide Home Loans, Inc., No. 08cvl267WQH(NLS), 2008 WL 4791863, at *2 (S.D. Cal. Nov. 3, 2008).
. The dissent’s extensive reliance on the FDCPA’s judicial venue clause, dissent at 583-85, fails for the same reason. The clause indeed contemplates that a security enforcer can be a debt collector, but it offers no indication that an entity is a debt collector because it enforces a security interest.
. Again, a trustee of a deed of trust might become a "debt collector” under the general definition if he did something in addition to the actions required to enforce a security interest. See Derisme v. Hunt Leibert Jacobson P.C., 880 F.Supp.2d 311, 326 (D.Conn.2012); see also Kaltenbach v. Richards, 464 F.3d 524, 528-29 (5th Cir. 2006). Ho makes no argument that ReconTrust did more than what was required by California law to enforce the deed of trust. It recorded and mailed notices that were scripted by the California legislature. See Cal. Civ. Code § 2924. And, while these notices advised Ho that she could avoid foreclosure by paying up, that was required by California law in order to conduct the trustee's sale.
. Section 1692a(6) provides that enforcers of security instruments are debt collectors only for the limited purposes of section 1692f. Section 1692f(6) prohibits "Making or threatening to take any nonjudicial action to effect dispossession or disablement of property” (emphasis added). By referring to "threats” and not just actions, the statute contemplates that repossessors will communicate with debtors. The fact that Congress went out of its way to expose enforcers of security interests to liability for “threatening” debtors shows that such enforcers were expected to do more than merely repossess property in the middle of the night.
. The dissent makes much of the fact that the notice of trustee's sale included a disclaimer stating that ReconTrust "is a debt collector attempting to collect a debt.” This disclaimer isn't sufficient to show that ReconTrust is a debt collector. See Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 932 (9th Cir. 2007) (per curiam); see also Gburek v. Litton Loan Servicing LP, 614 F.3d 380, 386 n.3 (7th Cir. 2010) (similar). "Debt collector” isn’t an elective category. It’s determined objectively, based on the activities of the entity in question.
.We find it significant that California expressly exempts trustees of deeds of trust from liability under the Rosenthal Act, the state analogue of the FDCPA. See Cal. Civ. Code. § 2924(b). The California legislature clearly views such trustees as materially different from debt collectors.
. The FDCPA also excludes from its definition of “debt collector” an entity that acts "incidental to a bona fide fiduciary obligation.” 15 U.S.C. § 1692a(6)(F). But because California courts have consistently held that a trustee is not a fiduciary, we are reluctant to rely on this provision here. See, e.g., Hatch v. Collins, 225 Cal.App.3d 1104, 275 Cal.Rptr. 476, 480 (1990) (holding that a trustee of a deed of trust “does not stand in a fiduciary relationship” to either the beneficiary or the creditor); see also Stephens, Partain & Cunningham v. Hollis, 196 Cal.App.3d 948, 242 Cal.Rptr. 251, 255 (1987) ("Just as a panda is not an ordinary bear, a trustee of a deed of trust is not an ordinary trustee.”).
. At our invitation, the agency filed an ami-cus brief arguing that all trustees of deeds of trust are debt collectors under section 1692a(6). The agency has not exercised its authority to promulgate a rule interpreting the term "debt collector.” Thus, we accord deference to the agency’s interpretation of that phrase only to the extent that we find that interpretation persuasive. See United States v. Mead Corp., 533 U.S. 218, 226-29, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (citing Skidmore v. Swift & Co., 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). We are unpersuaded by the agency’s reading of the statute and therefore do not defer to it.
. Compare Glazer, 704 F.3d at 461 (holding that all "mortgage foreclosure is debt collection” for the purposes of the FDCPA); Wilson, 443 F.3d at 378-79 (similar); and Piper v. Portnoff Law Assocs., Ltd., 396 F.3d at 235-36 (3d Cir. 2005) (similar), with Burnett, 706 F.3d at 1239 (suggesting that non-judicial foreclosure is not debt collection for purposes of the FDCPA, but refusing to so hold); Warren v. Countiywide Home Loans, Inc., 342 Fed.Appx. 458, 461 (11th Cir. 2009) (holding that "foreclosing on a home is not debt collection for purposes” of the FDCPA); and Brown v. Morris, 243 Fed.Appx. 31, 35 (5th Cir. 2007) (holding that “foreclosure is not per se FDCPA debt collection”).