ORDER GRANTING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DECLINING SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIMS
JAMES L. ROBART, District Judge.
Before the court are two motions: (1) Defendant Nationstar Mortgage LLC's ("Nationstar") motion for partial summary judgment (Nationstar Mot. (Dkt. # 16)), and (2) Plaintiffs Robert Johnson and Kristin Johnson's (collectively, "the Johnsons") cross motion for partial summary judgment (Johnsons Mot. (Dkt. # 31)).
The court has reviewed the motions, all submissions filed in support of and opposition to the motions, the relevant portions of the record, and the applicable law. Considering itself fully advised,
In 2002, nonparties Richard E. McKinley and Louann C. McKinley (collectively, "the McKinleys") purchased Lot 5, Sudden Valley, Division No. 38, Whatcom County, Washington ("the McKinley Property"). (Req. for Jud. Not. ("RJN") (Dkt. # 17) Ex. 1.)
In 1998, Mr. Johnson purchased Lots 84 and 85, Sudden Valley, Division No. 4, Whatcom County, Washington ("the Johnson Property"). (RJN Ex. 7.) At that time, the street address for the Johnson Property was 77 NE Sudden Valley Drive, Bellingham, Washington. (RJN Ex. 8 at 2, 7; id. Ex. 11.) Subsequently, the street address for the Johnson Property also changed and became the same as the former address for the McKinley Property—77 Sudden Valley Drive SE, Bellingham, Washington—instead of the previous "NE" prefix. (RJN Ex. 9 at 3, 12.)
In July 2012, Nationstar began servicing the McKinley Loan. (Janati Decl. (Dkt. # 18) ¶ 4;
Nationstar subsequently directed the commencement of nonjudicial foreclosure proceedings against the McKinley Property. (See 4/14/17 Sturdevant Decl. Ex. 8 at 58-65 (containing the Notice of Default); 5/4/17 Bollero Decl. (Dkt. # 19) ¶ 2, Ex. A (attaching a copy of Notice of Default).) Nationstar, acting on behalf of the McKinley Deed of Trust beneficiary, appointed non-party Quality Loan Service Corporation of Washington ("QLS") as successor trustee. (RJN Ex. 5.) QLS issued a Notice of Default to the McKinleys, dated March 24, 2016. (5/4/17 Bollero Decl. ¶ 2, Ex. A; 5/25/15 Sturdevant Decl. (Dkt. # 32) ¶ 4, Ex. C (Dkt. # 32-4).) The Notice of Default was addressed to both McKinleys by their full names. (See id.) The Notice of Default also specifically identified the McKinley Deed of Trust by current beneficiary, servicer, recording date, and recording number, and it referenced the McKinley Property by legal description and parcel tax identification number. (See id.)
QLS posted the Notice of Default at the McKinley Property. (4/14/17 Surdevant Decl. Ex. 8 at 19 (Answer to Interrogatory No. 8).) QLS also mailed the Notice of Default—addressed to both of the McKinleys—to several different addresses, including both "77 Sudden Valley Drive SE" and "77 Marigold Dr." (Id. at 56-57; 5/4/17 Bollero Decl. ¶ 2 Ex. A.) On April 4, 2016, the Johnsons, who reside at what is now known as "77 Sudden Valley Drive SE," received and opened a copy of the Notice of Default addressed to the McKinleys. (5/14/17 Bollero Decl. ¶¶ 3-4, Ex. B; see Compl. ¶ 7 (describing the Notice of Default from Nationstar contained in the letter from QLS).) The Notice of Default, however, referenced the lot, division, and parcel number for the house on 77 Marigold Dr., Bellingham, Washington 98229. (Compl. ¶ 7.)
The Johnsons understood that the Notice of Default from QLS was addressed to the McKinleys and not to them. (6/12/17 Bollero Decl. (Dkt. # 37) ¶ 2, Ex. D (K. Johnson Dep.) at 64:17-65:11, 67:22-68:4.) The Johnsons also understood that the Notice of Default referenced the McKinley Deed of Trust and not theirs. (Id. at 68:5-18.) Finally, the Johnsons understood that the Notice of Default referenced the McKinley Property and not their property. (Id. at 68:19-69:15.)
Nationstar and QLS did not complete the nonjudicial foreclosure process against the McKinley Property because the McKinleys sold their property to third parties on April 29, 2016. (RJN Ex. 10.) Instead, Nationstar recorded a Deed of Reconveyance on June 16, 2016. (RJN Ex. 6.)
Meanwhile, on June 29, 2015, due to the default on the McKinley Loan, Nationstar asked its vendor, Mortgage Contracting Services, LLC ("MCS"), to verify the occupancy of the McKinley Property. (Hager Decl. (Dkt. # 20) ¶ 4; 4/14/17 Sturdevant Decl Ex. 8 at 16 (stating in response to Interrogatory No. 3 that "[t]he purpose of the visit was to verify the occupancy and visually inspect the Liened Property").) MCS assigned the task to its sub-contractor, Sierra Field Services, Inc. ("Sierra"). (Hager Decl. ¶ 4.) On July 6, 2015, a Sierra representative initially visited the Johnson Property rather than the McKinley Property. (See Compl. ¶ 3; see 5/25/17 Sturdevant Decl. ¶ 6, Ex. E ("R. Johnson Dep.") at 27-31; Hager Decl. ¶¶ 4-5.) Mr. Johnson was aware of the change in street names and informed the Sierra representative that she had the incorrect address. (See Compl. ¶ 3; Hager Decl. ¶ 5; 6/12/17 Bollero Decl. ¶ 2, Ex. C (R. Johnson Dep.) at 27:14-24, 30:23-25.) The Sierra representative then visited the McKinley Property. (See Compl. ¶ 3; 4/14/17 Sturdevant Decl. Ex. 8 at 38 (indicating that the property was inspected on July 6, 2015).)
On or about July 6, 2015, MCS informed Nationstar that the McKinley Property was vacant. (Hager Decl. ¶ 4; 4/14/17 Sturdevant Decl. Ex. 8 at 38 (stating: "Occupancy: Vacant"); Janati Decl. ¶ 5.) MCS also uploaded the following comment to MCS's proprietary software, which was accessible to Nationstar:
(4/14/17 Sturdevant Decl. Ex. 8 at 39 (capitalization and punctuation in original); Hager Decl. ¶ 5.)
On July 7, 2015, MCS, on Nationstar's behalf, placed an "Initial Secure" work order with Preservation Services, LLC, ("Preservation") on a rush basis, in order to secure the vacant McKinley Property. (Hager Decl. ¶ 6; Janati Decl. ¶ 5.) Preservation, which is a sub-contractor of MCS, visited the Johnson Property on July 10, 2015—four days after Sierra's visit. (Hager Decl. ¶¶ 6-7; Compl. ¶ 4.) The Johnsons explained to the Preservation representative that he was not at the McKinley Property, and the Preservation representative left without performing any services on the Johnson Property. (Compl. ¶ 4.) On July 10, 2015, MCS informed Nationstar by email about the address discrepancy between the Johnson Property and the McKinley Property. (Hager Decl. ¶ 7.) The Johnsons received no further visits from Nationstar, QLS, MCS, or any of MCS's subcontractors. (See Compl. ¶ 7.) Neither MCS nor any other entity ever altered the Johnson Property in any way. (6/12/17 Bollero Decl. ¶ 2, Ex. C at 73:19-74:6, Ex. D at 95:7-14.)
After the Johnsons received the letter on April 4, 2016, containing the Notice of Default addressed to 77 Sudden Valley Dr. SE, they hired an attorney. (See Compl. ¶¶ 7-8.) The attorney wrote to Nationstar, explained the address problem, and gave Nationstar information concerning the Notice of Default from QLS. The Johnsons did not receive a response from Nationstar. (See id.) However, the Johnsons have never owed a debt to Nationstar (6/12/17 Bollero Decl. ¶ 2, Ex. D at 71:14-15; see also id. ¶ 6, Ex. I (Answers to RFAs) at 7 (admitting that from January 1, 2015, to the present, the Johnsons have not owed any debt to Nationstar)), nor has Nationstar ever serviced any mortgage that the Johnsons had on any home (id. ¶ 2, Ex. C (R. Johnson Dep.) at 9:21-23). Further, Nationstar has never demanded money from the Johnsons. (Id. ¶ 2, Ex D at 92:18-19.)
On July 1, 2017, the Johnsons filed suit, alleging causes of action for violations of the FDCPA, 15 U.S.C. §§ 1692 et seq.; violations of the CPA, RCW ch. 19.16; negligence; and negligent training and supervision. (See Compl. ¶¶ 21-42.) Nationstar moves for partial summary judgment on the Johnsons' FDCPA and CPA claims. (See generally Nationstar Mot.) The Johnsons oppose Nationstar's motion and move for partial summary judgment on their FDCPA claim. (See generally Johnson Mot.)
A. Legal Standards
Summary judgment is appropriate if the evidence shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. Cty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "`genuine' only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party." Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248-49).
The moving party bears the initial burden of showing there is no genuine issue of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can show the absence of a dispute of material fact in two ways: (1) by producing evidence negating an essential element of the nonmoving party's case, or (2) by showing that the nonmoving party lacks evidence of an essential element of its claim or defense. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party will bear the burden of persuasion at trial, it must establish a prima facie showing in support of its position on that issue. UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994). That is, the moving party must present evidence that, if uncontroverted at trial, would entitle it to prevail on that issue. Id. at 1473. If the moving party meets its burden of production, the burden then shifts to the nonmoving party to identify specific facts from which a fact finder could reasonably find in the nonmoving party's favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 252.
The court is "required to view the facts and draw reasonable inferences in the light most favorable to the [non-moving] party." Scott v. Harris, 550 U.S. 372, 378 (2007). The court may not weigh evidence or make credibility determinations in analyzing a motion for summary judgment because these are "jury functions, not those of a judge." Anderson, 477 U.S. at 249-50. Nevertheless, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott, 550 U.S. at 380 (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
"[W]hen parties submit cross-motions for summary judgment, each motion must be considered on its own merits." Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2011) (internal quotation marks and alterations omitted). Thus, "the court must review the evidence submitted in support of each cross-motion." Id. The court now addresses the parties' motions for summary judgment.
B. FDCPA Claim
Both Nationstar and the Johnsons move for summary judgment on the Johnsons' FDCPA claim. (Nationstar Mot. at 9-19; Johnsons Mot. at 10-15.) For a plaintiff to recover under the FDCPA, there are three threshold requirements: (1) the plaintiff must be a "consumer," 15 U.S.C. § 1692a(3); (2) the defendant must be a "debt collector," 15 U.S.C. § 1692a(6); and (3) the defendant must have committed some act or omission in violation of the FDCPA while attempting to collect a "debt," 15 U.S.C. § 1692a(5), from the plaintiff. See Robinson v. Managed Accounts Receivables Corp., 654 F.Supp.2d 1051, 1057 (C.D. Cal. 2009). Nationstar argues that the Johnsons fail each of these elements. (Nationstar Mot. at 9-19.) As discussed below, the court concludes that Nationstar is not a "debt collector" as is required for the Johnsons to prevail on their FDCPA claim, and therefore declines to address Nationstar's remaining two arguments with respect to the Johnsons' FDCPA claim.
The FDCPA requires that the defendant be a "debt collector," which the statute defines as:
15 U.S.C. § 1692a(6). The statute expressly excludes from this definition "any person collecting or attempting to collect any debt owed or due or asserted to owed or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person." 15 U.S.C. § 1692a(6)(F)(iii). Thus, "the FDCPA does not apply to lenders acquiring debt before default." Corales v. Flagstar Bank, FSB, 822 F.Supp.2d 1102, 1112 (W.D. Wash. 2011) (citing De Dios v. Int'l Realty & Invs., 641 F.3d 1071, 1074 (9th Cir. 2011)).
The Johnsons offer no evidence disputing that (1) Nationstar commenced servicing the McKinley Loan in July 2012, and (2) the McKinleys did not default on their loan until more than two years later, in September 2014. (6/12/17 Bollero Decl. ¶ 4, Ex. G; Fanati Decl. ¶ 4.) Consequently, based on the undisputed factual record, Nationstar does not qualify as a "debt collector" under the FDCPA. See Rector v. Wells Fargo Dealer Servs., 672 F. App'x 779, 780 (9th Cir. 2017) (citing 15 U.S.C. § 1692a(6)(F)(iii)) ("The district court properly granted summary judgment on [the plaintiff's] FDCPA claim because [the plaintiff] failed to raise a genuine dispute of material fact as to whether defendants were debt collectors within the meaning of the FDCPA."); Rich v. Bank of Am., N.A., 666 F. App'x 635, 639 (9th Cir. 2016) ("Because the admissible evidence shows that [the defendant] has serviced the loan since before [the debtors'] default, the FDCPA does not apply to [the defendant] pursuant to 15 U.S.C. § 1692a(6)(F)(iii)."); Jara v. Aurora Loan Servs., LLC, 633 F. App'x 651 (9th Cir. 2016) ("The district court properly dismissed [the plaintiff's] Fair Debt Collection Practices Act claims because [the defendant] was not a debt collector under 15 U.S.C. § 1692a(6)(F)(iii) where it assumed servicing responsibilities to [the debtor's] loan prior to any default."); Robinson v. Wells Fargo Bank Nat'l Ass'n, No. C17-0061JLR, 2017 WL 2311662, at *5 (W.D. Wash. May 25, 2017) ("[A] loan servicer, such as Nationstar, which acquires servicing rights before the loan at issue is in default, is not a debt collector under the FDCPA.").
The primary authority upon which the Johnsons rely to oppose Nationstar's motion and advance their FDCPA claim is Bridge v. Ocwen Federal Bank, FSB, 681 F.3d 355 (6th Cir. 2012). (See Johnsons Mot. at 12-14.) In Bridge, despite proof of Ms. Bridge's payment, the defendants made "endless" collection calls to both Ms. Bridge and Mr. Bridge, threatened foreclosure, assessed monthly late fees, and reported derogatory information to credit reporting agencies. 681 F.3d at 357. The Sixth Circuit reversed the district court's dismissal of the plaintiffs' FDCPA claim on grounds that defendants were not debt collectors under the FDCPA and held that the defendant could be held liable under the Act for their attempts to collect a debt that the plaintiffs had already paid. Id. at 362-63. The Sixth Circuit found the defendants' arguments that it was not an FDCPA "debt collector" "disingenuous" because after "after having engaged in years of collection activity claiming a mortgage is in default, Defendants now seek to defeat protections of the FDCPA by relying on Plaintiffs' position throughout those years that the mortgage is not in default." Id. at 361. In so ruling, the Sixth Circuit stated:
Id. at 362-63. The Sixth Circuit further held that Mr. Bridge, who was not a party to the loan, was also protected from the defendants' conduct by the FDCPA. Id. at 363.
The Johnsons argue that "Nationstar contended that the Johnsons were in default on the debt," and thus Nationstar "was a debt collector" pursuant to Bridge. (Johnsons Mot. at 13 (citing Bridge, 681 F.3d at 360, 361).) Bridge, however, is factually distinguishable. Here, unlike Bridge, there is no evidence that Nationstar ever asserted that the Johnsons were in default on a debt. Instead, the evidence before the court affirmatively shows the contrary. Although QLS sent Notices of Default to the Johnsons' address and the Johnsons opened one of those envelopes, the Johnsons understood that the Notice of Default was addressed to the McKinleys and not to them (6/12/17 Bollero Decl. ¶ 2, Ex. D at 64:17-65:11, 67:22-68:4), referenced the McKinley Deed of Trust and not theirs (id. at 68:5-18), and applied the McKinley Property and not their property (id. at 68:19-69:15). Further, unlike Bridge, the Johnsons admit that Nationstar never demanded any money from them.
Nevertheless, as the Johnsons point out (see Johnsons Mot. at 11), the court must consider not just whether Nationstar's foregoing communications or actions deceived or misled the Johnsons, but rather whether Nationstar's communications or actions would be likely to deceive or mislead "a hypothetical least sophisticated debtor."
C. Supplemental Jurisdiction
The Johnson allege only federal question jurisdiction under 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d) of the FDCPA. (Compl. ¶ 9.) The court has now granted summary judgment to Nationstar on the Johnsons' FDCPA claim, see supra § III.B, which is the only federal question in the Johnsons' complaint (see generally Compl.).
"[W]here a district court has dismissed all claims over which it has original jurisdiction, it may sua sponte decline to exercise supplemental jurisdiction over remaining state law claims." Andrews v. Wash. State Dep't of Soc. & Health Servs., No. C15-5871BHS, 2017 WL 320621, at *1 (W.D. Wash. Jan. 23, 2017) (alterations in original) (quoting Sikhs for Justice "SFJ", Inc. v. Facebook, Inc., 144 F.Supp.3d 1088, 1096 (N.D. Cal. 2015)); see also Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 n.3 (9th Cir.), supplemented, 121 F.3d 714 (9th Cir. 1997), as amended (Oct. 1, 1997). District courts may decline to exercise supplemental jurisdiction if: (1) the claim raises a novel or complex issue of state law; (2) the state law claim substantially predominates over the federal claim; (3) the district court has dismissed all claims over which it has original jurisdiction; or (4) if there is some other exceptional and compelling reason to decline jurisdiction. See 28 U.S.C. § 1367(c). In deciding whether to exercise supplemental jurisdiction, the court should consider the interests of judicial economy, convenience, fairness and comity. City of Chi. v. Int'l College of Surgeons, 522 U.S. 156, 173 (1997); Smith v. Lenches, 263 F.3d 972, 977 (9th Cir. 2001).
Here, two of the enumerated provisions set forth in 28 U.S.C. § 1367(c) apply. First, by granting summary judgment to Nationstar on the Johnsons' FDCPA claim, the court dismissed the only claim over which it has original jurisdiction. See 28 U.S.C. § 1367(c)(3). Second, because only state law claims remain, the state law claims necessarily substantially predominate over the federal claims. See id. § 1367(c)(2).
Further, the interests of judicial economy, convenience, fairness, and comity do not favor the exercise of supplemental jurisdiction. "[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-law claims." Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988), superseded on other grounds by statute as recognized in Fent v. Okla. Water Res. Bd., 235 F.3d 553, 557 (10th Cir. 2000)). Here, trial is two months away. (See Sched. Ord. (Dkt. # 11) at 1 (setting a September 11, 2017, trial date).) Although the court has resolved certain discovery issues for the parties (see 6/2/17 Order (Dkt. # 35)), the court has not dealt in any substantive manner with the Johnsons' state law claims (see generally Dkt.). Moreover, although the Johnsons' state law claims may rest on similar—if not identical—facts, the federal and state law claims are not similar in law and may not be similar in outcome. Thus, issues of comity also favor having these state law claims heard in state court. In sum, the court perceives no reason to depart from the "usual case" in which the court dismisses the state law claims without prejudice following the court's pretrial disposition of all federal claims.
For the reasons stated above, the court DENIES the Johnsons' motion for summary judgment (Dkt. # 31) and GRANTS in part and DECLINES TO RULE in part on Nationstar's motion (Dkt. # 16). Specifically, the court GRANTS Nationstar's motion and enters summary judgment for Nationstar on the Johnsons' FDCPA claim, but DECLINES TO RULE on Nationstar's request for summary judgment on the Johnsons' CPA claim. Instead, having granted summary judgment in Nationstar's favor on the only federal claim in the Johnsons' complaint, the court declines to exercise supplemental jurisdiction over the Johnsons' remaining state law claims and dismisses those claims without prejudice.
First, the Johnsons never properly sought to compel the relevant discovery. Although the Johnsons filed a motion to compel discovery from Nationstar (Mot. to Compel (Dkt. # 13).) The motion, however, failed to comply with certain requirements in the court's scheduling order, and as a result, the court struck it without prejudice to refiling. (4/17/17 Order (Dkt. # 15).) Although the court gave the Johnsons an opportunity to refile their motion to compel in a manner that complied with the court's scheduling order (see id. at 2 & n.1), the Johnsons failed to do so (see generally Dkt.). Having failed to refile their motion to compel despite having the opportunity to do so, the Johnsons cannot now raise Nationstar's failure to produce the documents at issue.
Second, judicial estoppel is inapplicable. Judicial estoppel bars a party from making a factual assertion in litigation "which directly contradicts an earlier assertion in the same proceeding or a prior one," Religious Tech. Ctr. v. Scott, 869 F.2d 1306, 1311 (9th Cir. 1989), and is "tantamount to a knowing misrepresentation to or even fraud on the court," Johnson v. State, Or. Dep't of Human Res., Rehab. Div., 141 F.3d 1361, 1369 (9th Cir. 1998) (quoitng Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362-63 (3d Cir. 1996)). The Johnsons fail to identify a prior inconsistent position by Nationstar that rises to the level necessary to invoke judicial estoppel. (See Johnsons Mot. at 9-10.)
The best evidence rule is also in applicable. See Fed. R. Evid. 1002. A declarant may properly testify to information contained in business records so long as it is within his or her personal knowledge. Schaffer v. Litton Loan Servicing, LP, No. CV 05-07673-MMM CTX, 2008 WL 9758641, at *15 (C.D. Cal. July 31, 2008); Zakre v. Norddeutsche Landesbank Girozentrale, 396 F.Supp.2d 483, 504 (S.D.N.Y. 2005). Accordingly, the court denies the Johnsons' motion to strike paragraphs four and five of Fay Janati's declaration.