In Moriarity v. Nationstar Mortg., LLC, 2014 WL 801021 (E.D.Cal. 2014), in a case filed by an in pro per plaintiff, Judge Ishii “inferred” prior express consent by virtue of the existing debtor creditor relationship, and dismissed the Plaintiff’s TCPA claim.
It is the general rule that, “where a valid assignment of a mortgage has been consummated with proper consideration, the assignee is vested with all the powers and rights of the assignor.” Mort v. United States, 86 F.3d 890, 894 (1996). Plaintiff’s FAC alleges that, at the time of the filing of this action, the validity of the assignment of Plaintiff’s mortgage to Defendant was being challenged in state court. However, Plaintiff’s FAC contains no facts upon which the court could find that the assignment was invalid and, even if such facts had been alleged the contention is undercut by the judicially noticed decision of the Superior Court granting demurrer on Plaintiff’s claim that the assignment was fraudulent. See, generally, ‘Defendants Supplemental Request for Judicial Notice, Doc. # 25 at pages 6 and 19. The facts of this case do not provide any basis for concluding that Plaintiff’s fourth claim for relief for violation of the TCPA can be sustained in light of FCC’s interpretation the term of “prior express consent.” Plaintiff admits there was a debt and it may be inferred that Plaintiff provided contact information to the original loan servicer. Absent proof sufficient to show that subsequent assignments of the mortgage were somehow invalid, Plaintiff cannot state a claim against Defendant for violation of the TCPA.