In Gonzalez v. CNA Foreclosure Service, Inc., 2011 WL 2580681 (S.D.Cal. 2011), Judge Anello held that a foreclosure trustee was not a debt collector under federal and state law, and that inclusion of the FDCPA’s ‘mini-Miranda’ in statutory notices did not otherwise render the trustee subject to the FDCPA.


Based on Ms. Canty’s undisputed testimony, the Court concludes CNA is not a “debt collector” within the meaning of the FDCPA. At no time did CNA seek to collect money from Plaintiffs. Rather, CNA’s notices informed Plaintiffs that if they did not take action with respect to the amounts allegedly owed to the beneficiary, Dakota Loans, Plaintiffs may lose legal rights and the Property may be subject to fore-closure.  As the Ninth Circuit noted in Santoro v. CTC Foreclosure Serv. Corp., 12 Fed. Appx. 476 *11–12 (9th Cir.2001), a foreclosure sale notice issued in compliance with California Civil Code section 2924 et seq. does not seek to collect a debt. FN2 Thus, such notices do not fall within the conduct prohibited by the FDCPA. [Id.] Plaintiffs’ reliance on case law outside the Ninth Circuit purportedly to the contrary is not persuasive, as Plaintiffs acknowledge “the courts are not uniform in their treatment of th[e] distinction … between col-lecting debts and merely enforcing a security interest in property.” [Doc. No. 24, p. 1; Doc. No. 21, n. 2 (citing cases from the Fourth Circuit, Fifth Circuit, and district courts in Louisiana and Oregon).] ¶  *4 Nor does the Court find that CNA’s August 28 letter to Plaintiffs stating, “Please be advised that we are attempting to collect a debt. Any information obtained from the Trustor will be used for that pur-pose” requires a different result. Ms. Canty provided unrebutted testimony that as the trustee, CNA was not required to provide the August 28 letter to Plaintiffs, and did so merely as a courtesy to encourage Plaintiffs to take action to preserve their rights with respect to the Property. Ms. Canty explained, “this notice is not required on this particular loan. However, it’s included to make sure that the Gonzalezes realize that they have the right to talk with the beneficiary about the foreclosure process and the debt amount.”  This single statement does not transform CNA into a debt collector. Nor is it sufficient to create a genuine issue of material fact regarding whether CNA is a debt collector within the meaning of the FDCPA. See Nwoke v. Countrywide Home Loans, Inc., 251 Fed.App. 363, 365 (7th Cir.2007).     The plain language of the statute provides, a debt collector is “any person who uses any instrumentality of interstate commerce or the mails 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.” 15 U.S.C. § 1692a(6). CNA’s undisputed testimony establishes that it is not a debt collector as defined by the FDCPA. The sole purpose of CNA’s business is to act as a trustee for lenders to facilitate the foreclosure process. [Canty Decl. 8:13–24.] All the information CNA includes in the notices regarding any amounts owed are provided by the lenders, CNA does not interact with the bor-rowers regarding the amounts owed, nor has CNA ever collected money on behalf of the lenders. Accordingly, CNA’s isolated statement that it is “at-tempting to collect a debt” does not transform CNA into a debt collector. CNA is therefore not subject to liability under the FDCPA.


The Court held that the Rosenthal Act was no help, either, explaining:


Moreover, “[t]he law is clear that foreclosing on a deed of trust does not invoke the statutory protections of the [ Rosenthal Act].” Sipe v. Countrywide Bank, 690 F.Supp.2d 1141, 1151 (E.D.Cal.2010) (citations omitted); Gardner, 691 F.Supp.2d at 1189–99 (“foreclosure pursuant to a deed of trust does not constitute debt collection under the Rosenthal Act…. California courts have declined to regard a residential mortgage loan as a debt under the Rosenthal Act”); Castenada v. Saxon Mortg. Services, 687 F.Supp.2d 1191, 1197 (E.D.Cal.) (“foreclosure pursuant to a deed of trust does not constitute debt collection under [the Rosenthal Act]”) (collecting cases); Keen v. Am. Home Mortg. Servicing, Inc., 664 F.Supp.2d 1086, 1095 (E.D.Cal.2009) (same); Rosal v. First Federal Bank of California, 671 F.Supp.2d 1111, 1134–35 (N.D.Cal.2009) (same). Because the Court concludes CNA is not a debt collector and did not engage in debt collection activities, see Section I supra, CNA is not subject to liability under the Rosenthal Act and Plaintiffs’ second cause of action fails as a matter of law.