FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DALE DOWERS; DEBRA DOWERS,

Plaintiffs-Appellants,

v.

NATIONSTAR MORTGAGE, LLC;

WELLS FARGO BANK, NA; WELLS

FARGO BANK MINNESOTA, NA,

Trustee Banc of America Alternative

Loan trust series 2003–2007,

Defendants-Appellees.

No. 15-15178

D.C. No.

2:14-cv-01679-

JCM-PAL

OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted December 15, 2016

San Francisco, California

Filed March 31, 2017

Before: Diarmuid F. O’Scannlain, Ronald M. Gould,

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Gould
2 DOWERS V. NATIONSTAR MORTGAGE

SUMMARY*

Home Loans

The panel affirmed in part and reversed in part the district

court’s Fed. R. Civ. P. 12(b)(6) dismissal of plaintiffs’ action

asserting claims relating to the defendants’ servicing of

plaintiffs’ home loan.

Affirming in part, the panel held that plaintiffs’ Fair

Debt Collection Practices Act claims under 15 U.S.C.

§§ 1692c(a)(2), 1692d, and 1692e failed because the

defendants did not engage in “debt collection” and were not

acting as “debt collectors.” Reversing in part, the panel

disagreed with the district court’s dismissal with respect to

the claim under 15 U.S.C. § 1692f(6), and held that that

provision governed defendants’ alleged conduct because it

expressly applied to the enforcement of security interests

such as a deed of trust. The panel concluded that the district

court should not have dismissed Count Four on the ground

that Nationstar Mortgage, LLC was engaging in conduct

related to non-judicial foreclosure.

The panel held that the district court correctly dismissed

plaintiffs’ claim of intentional infliction of emotional distress. 

The panel concluded that plaintiffs’ allegations did not meet

the first element of extreme and outrageous conduct for such

a claim under Nevada law.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DOWERS V. NATIONSTAR MORTGAGE 3

The panel held that the district court properly dismissed

plaintiffs’ claim of a violation of the Nevada Deceptive Trade

Practices Act. The panel agreed with the district court’s

prediction that the Supreme Court of Nevada would hold that

real estate loans did not fall within the Act.

COUNSEL

Mark C. Fields (argued), Law Offices of Mark C. Fields, Los

Angeles, California, for Plaintiffs-Appellants.

Ariel Stern (argued) and Natalie L. Winslow, Akerman LLP,

Las Vegas, Nevada, for Defendants-Appellees.

OPINION

GOULD, Circuit Judge:

Plaintiffs Dale and Debra Dowers filed this action against

Defendants Nationstar Mortgage, LLC (“Nationstar”), Wells

Fargo Bank, N.A. (“WFB”), and Wells Fargo Bank

Minnesota, N.A. (“WFB Minnesota”), asserting claims

relating to Defendants’ servicing of Plaintiffs’ home loan. 

Plaintiffs alleged violations of the Fair Debt Collection

Practices Act (“FDCPA”), intentional infliction of emotional

distress (“IIED”), and a violation of the Nevada Deceptive

Trade Practices Act (“DTPA”). The district court dismissed

Plaintiffs’ complaint. With respect to the FDCPA claims, the

district court found that Plaintiffs did not state a claim for

relief because Defendants’ alleged conduct was a non-judicial

foreclosure attempt, not debt collection. We affirm the

district court except for its dismissal of Count Four, which
4 DOWERS V. NATIONSTAR MORTGAGE

asserts a violation of 15 U.S.C. § 1692f(6). That

provision—unlike the other three FDCPA provisions under

which Plaintiffs allege violations—governs a “business the

principal purpose of which is the enforcement of security

interests.” 15 U.S.C. § 1692a(6). Because Plaintiffs allege

conduct related to the enforcement of a security interest, that

claim should not have been dismissed on the ground that

Defendants were not collecting a debt.

I

A

In May 2003, Plaintiffs refinanced a loan on their Las

Vegas home by executing a Note and Deed of Trust with

Bank of America, N.A. (“Bank of America”).1In August

2003, Bank of America assigned the Note to WFB

Minnesota. On January 28, 2010, ReconTrust Company,

N.A. (“ReconTrust”), acting as Bank of America’s agent,

recorded a notice of default on Plaintiffs’ loan. The next day,

Bank of America assigned the Deed of Trust to WFB

Minnesota, and WFB Minnesota substituted ReconTrust as

the trustee under the Deed of Trust. On April 12, 2010,

Plaintiffs filed a voluntary petition for protection under

1 These facts are taken from the allegations in Plaintiffs’ complaint,

the exhibits attached to the complaint, and the publicly-recorded

documents Defendants attached to their motion to dismiss. See Akhtar v.

Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“When reviewing a motion

to dismiss we consider only allegations contained in the pleadings,

exhibits attached to the complaint, and matters properly subject to judicial

notice.” (internal quotation marks omitted)); Lee v. City of Los Angeles,

250 F.3d 668, 689 (9th Cir. 2001) (“[A] court may take judicial notice of

matters of public record.” (internal quotation marks omitted)).
DOWERS V. NATIONSTAR MORTGAGE 5

Chapter 7 of the BankruptcyCode, and on July 21, 2010, they

received a discharge under 11 U.S.C. § 727.

On September 23, 2013, Bank of America, acting “as

attorney in fact” for WFB, substituted MTC Financial, Inc.,

doing business as Trustee Corps (“Trustee Corps”), as the

trustee under the Deed of Trust. A week later, Trustee Corps

recorded a notice of default on Plaintiffs’ loan. On

November 13, 2013, Nationstar sent Plaintiffs a letter stating

that Bank of America had assigned to Nationstar the servicing

rights to Plaintiffs’ loan.

In light of the notice of default, a Nevada foreclosure

mediator held a mediation between Plaintiffs and the lenders. 

During the mediation, the lenders could not produce the

original loan documents. On February 13, 2014, the

mediation office sent the parties a notice stating that, based

on the mediator’s recommendation, it would not issue a

Certificate of Foreclosure.

On March 25, 2014, Nationstar sent Plaintiffs a letter

stating, “You are in default under the terms of the conditions

of the mortgage loan for failure to pay the required

installments when due. Nationstar intends to enforce the

provision of the Note and related security instrument[].” It

also stated, “If you do not pay the full amount of the default,

Nationstar may accelerate the entire sum of both principal

and interest due and payable, and invoke any remedies

provided for in the Note and security instrument, including

but not limited to the foreclosure sale of the property.” At the

end of March 2014, a Nationstar representative called

Plaintiffs and was “rude, bullying, and abusive.” In light of

these communications—and his belief that the outcome of the

foreclosure mediation rendered Defendants incapable of
6 DOWERS V. NATIONSTAR MORTGAGE

foreclosing on Plaintiffs’ home—Mark Fields, Plaintiffs’

attorney, wrote Nationstar a letter on April 2, 2014. Fields

asserted that Nationstar’s threat to foreclose was unlawful and

also requested that all communications from Nationstar be

directed to Fields, rather than to Plaintiffs. Fields also

demanded that Nationstar repudiate its threat to foreclose,

confirm that the Note owner had possession of the original

loan documents, and confirm that Nationstar would not

initiate any foreclosure proceedings until it obtains a

certificate of foreclosure from the foreclosure mediation

program.

Between May and June of 2014, Nationstar called

Plaintiffs three times and placed written notices on Plaintiffs’

door, stating in bold capital letters: “important,” “please call,”

“please be ready to give your account number,” and “we are

expecting your call today.” On June 18, 2014, Nationstar

sent a loan statement directly to Plaintiffs. Fields sent

Nationstar and Trustee Corps an email on June 25, 2014,

reasserting his previous demands and adding a demand that

Trustee Corps rescind the notice of default it had recorded on

January 29, 2010. Nationstar sent a letter to Fields stating

that it intended to respond by July 23. On July 15, Fields

emailed Nationstar and Trustee Corps objecting to the

delayed response and again demanding that the notice of

default be rescinded. Trustee Corps rescinded the notice of

default on July 16.

On July 21, 2014, a Nationstar representative sent Fields

a letter asserting that Nationstar did not receive notice of

Fields’s representation of Plaintiffs until July 3, 2013, and

that the owner of the Note was WFB Minnesota. With

respect to Fields’s demand that Nationstar confirm WFB
DOWERS V. NATIONSTAR MORTGAGE 7

Minnesota’s possession of the loan documents, the letter

stated:

[T]here are some circumstances where the

owner has given temporary possession of the

loan note to the servicer. The owner does this

in order to ensure that the servicer is able to

perform the services and duties incident to the

servicing of the mortgage loan, such as

foreclosure actions, bankruptcy cases, and

other legal proceedings.

Nationstar sent a letter directly to Plaintiffs on August 26,

stating that Plaintiffs’ home may be referred to foreclosure

within fourteen days. On August 27, a Nationstar

representative sent Fields a letter refusing to answer whether

it “or the lender” could provide the documents Fields had

requested because such information “does not pertain directly

to the servicing of the loan, does not identify any current

servicing errors, and/or is considered proprietary and

confidential.” Fields responded with two emails to a

Nationstar representative on August 27, accusing Nationstar

of falsely claiming to possess the Note and demanding that

Nationstar prove that it or WFB Minnesota had possession of

the Note. Two days later, Fields sent further emails to the

same Nationstar representative as well as Nationstar’s CEO

and COO, repeating his prior demands. Nationstar responded

to Fields on September 4, but did not respond to the demands.

As a result of these events, Plaintiffs alleged that they

moved out of Las Vegas, have experienced severe emotional

distress, and that Ms. Dowers “cries herself to sleep from the

abuse, stress, uncertainty, and lies she has suffered.”
8 DOWERS V. NATIONSTAR MORTGAGE

B

Plaintiffs sued Defendants in Nevada state court, asserting

six causes of action. Counts One through Four assert

violations of four different FDCPA provisions: 15 U.S.C.

§§ 1692c(a)(2), 1692d, 1692e, and 1692f(6). Count Five

asserts a claim of IIED, and Count Six asserts a violation of

the DTPA. Defendants removed the case to federal court and

successfully moved to dismiss the entire complaint under

Federal Rule of Civil Procedure 12(b)(6). Plaintiffs timely

appealed.

II

We have jurisdiction to review the district court’s order

dismissing Plaintiffs’ complaint, 28 U.S.C. § 1291, which we

review de novo, O’Brien v. Welty, 818 F.3d 920, 929 (9th Cir.

2016). To determine whether dismissal under Rule 12(b)(6)

was appropriate, we accept as true Plaintiffs’ nonconclusory

factual allegations, construe all reasonable inference in favor

of Plaintiffs, and ask whether the facts are sufficient to state

a claim to relief that is plausible on its face. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

III

Defendants contend that Plaintiffs’ FDCPA counts fail to

state a claim for relief because Defendants did not engage in

“debt collection” and were not acting as “debt collectors.” 

We agree that the claims under 15 U.S.C. §§ 1692c(a)(2),

1692d, and 1692e fail for that reason. With respect to the

Section 1692f(6) claim, however, we disagree. That

provision governs Defendants’ alleged conduct because it
DOWERS V. NATIONSTAR MORTGAGE 9

expressly applies to the enforcement of security interests such

as a deed of trust.

A

The FDCPA defines a “debt collector” in relevant part as:

any person who . . . [engages] in any business

the principal purpose of which is the

collection of any debts, or who regularly

collects or attempts to collect, directly or

indirectly, debts owed or due or asserted to be

owed or due another. . . . For the purpose of

section 1692f(6) of this title, such term also

includes any person who . . . [engages] in any

business the principal purpose of which is the

enforcement of security interests.

15 U.S.C. § 1692a(6). A “debt” is “any obligation or alleged

obligation of a consumer to pay money arising out of a

transaction.” 15 U.S.C. § 1692a(5). Each of the four FDCPA

provisions under which Plaintiffs sue applies to only the

conduct of a “debt collector.” See id. § 1692c(a)(2) (“[A]

debt collector may not communicate with a consumer in

connection with the collection of any debt . . . if the debt

collector knows the consumer is represented by an attorney

with respect to such debt . . . .”); id. § 1692d (“A debt

collector may not engage in any conduct the natural

consequence of which is to harass, oppress, or abuse any

person in connection with the collection of a debt.”); id.

§ 1692e (“A debt collector may not use any false, deceptive,

or misleading representation or means in connection with the

collection of any debt.”); id. § 1692f (“A debt collector may

not use unfair or unconscionable means to collect or attempt
10 DOWERS V. NATIONSTAR MORTGAGE

to collect any debt.”). It follows that if Defendants were not

acting as “debt collectors” when interacting with Plaintiffs,

these claims should be dismissed.

B

Our decision in Ho v. ReconTrust Co., 840 F.3d 618 (9th

Cir. 2016), makes clear that the district court properly

dismissed Plaintiffs’ claims under Sections 1692c(a)(2),

1692d, and 1692e. There, Ho purchased a home using

borrowed funds secured by a deed of trust, of which

ReconTrust was the trustee. Id. at 619–20. After Ho missed

a payment, ReconTrust mailed to Ho notices of default and

sale, both of which advised Ho that ReconTrust would initiate

a non-judicial foreclosure if Ho did not make her loan

current. Id. at 620. Ho brought a claim under Section 1692e

against ReconTrust, alleging that the notices misrepresented

the amount she owed. Id.

We affirmed the dismissal of Ho’s Section 1692e claim

because ReconTrust’s conduct, as alleged, did not amount to

debt collection activity. ReconTrust was enforcing a security

interest, not collecting a debt, which, “[f]or the purposes of

the FDCPA, . . . is synonymous with ‘money.’” Id. at 621

(quoting 15 U.S.C. § 1692a(5)). “The object of a non[-

]judicial foreclosure is to retake and resell the security, not to

collect money . . . . Thus, actions taken to facilitate a nonjudicial foreclosure . . . are not attempts to collect ‘debt’ as

that term is defined by the FDCPA.” Id. We rejected Ho’s

argument that ReconTrust’s notices amounted to debt

collection because they had the effect of prompting Ho to pay

money she owed, explaining that it was the lien that prompted

Ho to pay off her loan, not ReconTrust’s actions. Id. (“The

fear of having your car impounded may induce you to pay off
DOWERS V. NATIONSTAR MORTGAGE 11

a stack of accumulated parking tickets, but that doesn’t make

the guy with the tow truck a debt collector.”); see also id. at

623–24.

We also reasoned that Section 1692a(6)’s clause

establishing a more expansive definition of “debt collector”

for purposes of Section 1692f(6) compels the conclusion that

security interest enforcers are not debt collectors for purposes

of the entire FDCPA. Id. at 622. As noted, that clause states,

“[f]or the purpose of section 1692f(6),” a debt collector “also

includes” a security interest enforcer. 15 U.S.C. § 1692a(6)

(emphasis added). Not only does the “also includes”

language make clear that, for purposes of the FDCPA outside

of Section 1692f(6), a security interest enforcer is not a debt

collector, but also this clause “would be superfluous if all

entities that enforce security interest were already included in

the definition of debt collector for purposes of the entire

FDCPA.” Ho, 840 F.3d at 622.

At bottom, Ho held that while the FDCPA regulates

security interest enforcement activity, it does so only through

Section 1692f(6). As for the remaining FDCPA provisions,

“debt collection” refers only to the collection of a money

debt.

This controlling precedent precludes Plaintiffs’ claims

under 15 U.S.C. §§ 1692c(a)(2), 1692d, and 1692e. Nothing

in Plaintiffs’ complaint suggests that Defendants engaged in

the collection of a money debt. The complaint does not

allege that WFB or WFB Minnesota engaged in any

collection-related activity, and the allegations suggest only

that Nationstar was engaged in enforcement of the Deed of

Trust, a security interest.
12 DOWERS V. NATIONSTAR MORTGAGE

Plaintiffs try to distinguish Ho by arguing that

Nationstar’s alleged conduct was not necessary to enforce the

trust beneficiary’s security interest. But that fact, even if true,

does not lead to the conclusion that Nationstar engaged in

debt collection.

2 Nationstar’s conduct was not an attempt to

collect a money debt, which is a necessary element of a claim

under Sections 1692c(a)(2), 1692d, or 1692e. Ho commands

that Plaintiffs cannot assert a claim under those FDCPA

provisions unless Nationstar was collecting a money debt.3

C

The district court erred, however, when it dismissed

Plaintiffs’ claim under Section 1692f(6) on the ground that

Nationstar was not collecting a debt.

Unlike under Sections 1692c(a)(2), 1692d, and 1692e, the

definition of debt collector under Section 1692f(6) includes

2

In Ho, the inability under California law to obtain a deficiency

judgment following non-judicial foreclosure was integral to our

conclusion that ReconTrust’s actions taken to facilitate a non-judicial

foreclosure were not attempts to collect debt. Ho, 840 F.3d at 621. Here,

Nevada law would have similarly prohibited Nationstar from obtaining a

deficiency judgment against the Dowers had Nationstar non-judicially

foreclosed on the property. See Nev. Rev. Stat. § 40.455(3).

3 Plaintiffs also contend that construing the term “debt collector” in

this manner amounts to granting security interest enforcers “blanket

immunity.” We disagree. As explained below, Section 1692f(6) directly

regulates the conduct ofsecurity interest enforcers. Further, Ho’s holding

that the FDCPA does not regulate the conduct of security interest

enforcers (outside of Section 1692f(6)) in no way immunizes Defendants

from claims arising under other sources of law. It only clarifies that

Plaintiffs cannot invoke the FDCPA (outside of Section 1692f(6)) on the

facts alleged.
DOWERS V. NATIONSTAR MORTGAGE 13

a person enforcing a security interest. 15 U.S.C. § 1692a(6). 

Section 1692f(6) regulates more than just the collection of a

money debt. It prohibits:

[t]aking or threatening to take any nonjudicial

action to effect dispossession or disablement

of property if – (A) there is no present right to

possession of the property claimed as

collateral through an enforceable security

interest; (B) there is no present intention to

take possession of the property; or (C) the

property is exempt by law from such

dispossession or disablement.

15 U.S.C. § 1692f(6).

The district court dismissed all four of Plaintiffs’ FDCPA

claims because Defendants’ conduct “relate[d]to non-judicial

foreclosure attempts.” But Section 1692f(6) regulates nonjudicial foreclosure activity. Again, Ho is instructive: when

contrasting Section 1692f(6) with the other FDCPA

provisions, we noted that ReconTrust was clearly a debt

collector for purposes of Section 1692f(6) because

ReconTrust was enforcing a security interest. See Ho,

840 F.3d at 622. Here, Plaintiffs alleged that Nationstar

threatened to take non-judicial action to dispossess Plaintiffs

of their home without a legal ability to do so. Such conduct

is exactly what Section 1692f(6) protects borrowers against. 

As a result, the district court should not have dismissed Count

Four on the ground that Nationstar was engaging in conduct

related to non-judicial foreclosure.
14 DOWERS V. NATIONSTAR MORTGAGE

IV

The district court correctly dismissed Plaintiffs claims of

IIED and of violation of the DTPA. To state a claim of IIED

under Nevada law, Plaintiffs must allege “(1) extreme and

outrageous conduct with either the intention of, or reckless

disregard for, causing emotional distress, (2) the plaintiff’s

having suffered severe or extreme emotional distress and

(3) actual or proximate causation.” Olivero v. Lowe, 995 P.2d

1023, 1025 (Nev. 2000) (quoting Star v. Rabello, 625 P.2d

90, 91–92 (Nev. 1981)). Plaintiffs’ allegations did not meet

the first element of extreme and outrageous conduct. Such

conduct must be “outside all possible bounds of decency” and

“regarded as utterly intolerable in a civilized community.” 

Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998)

(internal quotations marks omitted). The complaint alleges

that Nationstar threatened to foreclose on a property without

authority to do so because it did not possess the original loan

documents, contacted Plaintiffs directly after Plaintiffs’

attorney told it not to do so, and delayed the rescission of a

previously-recorded notice of default. Assuming these facts

to be true, Defendants’ conduct does not meet the threshold

of extreme and outrageous as it has been described by the

Supreme Court of Nevada. See State v. Eighth Judicial Dist.

Ct. ex rel. Cty. of Clark, 42 P.3d 233, 241 (Nev. 2002);

Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1386 (Nev.

1998); Maduike, 953 P.2d at 26.

With respect to Plaintiffs’ DTPA claim, the complaint

does not identify which provision of the DTPA Plaintiffs

contend Defendants have violated. While the Supreme Court

of Nevada has not settled this issue, we agree with the district

court in predicting that the Supreme Court of Nevada would

hold that real estate loans do not fall within the DTPA. The
DOWERS V. NATIONSTAR MORTGAGE 15

DTPA governs transactions relating to “goods and services,”

see Nev. Rev. Stat. §§ 598.0915–598.0925, 598.0934, and a

real estate loan is neither a good nor a service within the

meaning of this statute.

V

The district court properly dismissed Plaintiffs’ claims of

violations of 15 U.S.C. §§ 1692c(a)(2), 1692d, and 1692e;

IIED; and violation of the DTPA. The district court erred,

however, by dismissing Plaintiffs’ claim under 15 U.S.C.

§ 1692f(6) on the ground that Defendants’ alleged conduct

constituted enforcement of a security interest. Section

1692f(6) regulates such conduct.

AFFIRMED in part, REVERSED in part, and

REMANDED.