April 12, 2013
In Saldate v. Wilshire Credit Corp. 711 F.Supp.2d 1126 (CA E.D. 2010), the court granted motion to dismiss and held that non-judicial foreclosure was not “debt collection” subject to California’s Rosenthal Fair Debt Collection Practices Act (RFDCPA); loan servicer did not owe a duty to mortgagor, as would support mortgagor’s negligence claim; Real Estate Settlement Procedures Act (RESPA) did not provide a private right of action for disclosure violations; mortgagor failed to state a RESPA claim for damages resulting from loan servicer’s failure to respond to his qualified written request (QWR); mortgagor failed to state claims for fraud or negligent misrepresentation; and mortgagor failed to state a claim for wrongful foreclosure. Mortgagor completed a loan for the property with the loan terms memorialized in a promissory note which was secured by a deed of trust on the property. The deed of trust was recorded and identifies WMC Mortgage Corp. (“WMC”) as lender, Westwood Associates as trustee, and MERS as beneficiary. By a Corporate Assignment of Mortgage/Deed of Trust MERS assigned the deed of trust to Wells Fargo. By a Substitution of Trustee Quality Loan Service Corporation substituted as trustee for Westwood Associates. Quality later filed a Notice of Default and Election to Sell under Deed of Trust. The court rejected the mortgagor’s wrongful disclosure claim because the absence of an allegation of ability to tender amounts owed dooms a purported wrongful foreclosure claim. Therefore, the mortgagor’s inability to make monthly payments reflects inability to tender amounts owed to bar a claim to challenge foreclosure.