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Lisa Slepicoff Reyes v. Bac Home Loans Servicing

June 21, 2012


The opinion of the court was delivered by: Kent J. Dawson United States District Judge


Presently before the Court is the Motion to Dismiss (#5) filed by Defendants BAC Home Loans Servicing, LP ("BAC"), ReconTrust Co., N.A. ("ReconTrust"), Mortgage Electronic Registration Systems, Inc. ("MERS"), and Federal National Mortgage Association ("FNMA")(collectively "Defendants"). Plaintiff filed a response in opposition (#11) to which Defendants replied (#14). Also before the Court is Plaintiff's Emergency Motion for Declaratory Relief (#22). Defendants filed a response in opposition (#25) to which Plaintiff replied (#26).

I. Background

Plaintiff Lisa Slepicoff Reyes purchased property at 10365 Talking Tree Ave., Las Vegas, Nevada (the "Property") on March 28, 2005 with a loan for $279,992 from HomeAmerican Mortgage Corp. Plaintiff secured this loan with a Deed of Trust encumbering the Property. Additionally, Plaintiff obtained a home equity line of credit on the Property in the amount of $17,000 and secured this loan with a second Deed of Trust. Both Deeds of Trust were recorded on March 31, 2005. MERS was listed as the beneficiary and nominee of the lender HomeAmerican Mortgage Corp.

Plaintiff defaulted and on July 1, 2010 BAC executed and recorded a Substitution of Trustee formally substituting ReconTrust as the trustee under the Deeds of Trust. On July 2, 2010 ReconTrust executed and recorded a Notice of Default on the Property.

Plaintiff elected not to participate in Nevada's Mandatory Foreclosure Mediation Program resulting in the State of Nevada issuing a certificate allowing the foreclosure to proceed. On March 7, 2011 ReconTrust recorded a Notice of Trustee's Sale, with a sale date of March 23, 2011. The sale was postponed and no sale has yet taken place.

On July 22, 2011 Plaintiff filed her complaint in State Court, and Defendants removed it here (#1-1). The Complaint contains claims for violation of the Unfair Lending Practices Act (NRS §598(D)), deceptive trade practices, wrongful foreclosure, conspiracy to commit fraud and conversion, conspiracy to conversion related to MERS, inspection and accounting, unjust enrichment, quiet title, breach of the covenant of good faith and fair dealing, injunctive and declaratory relief, and rescission. Defendants now move to dismiss the Complaint for failure to state a claim upon which relief may be granted.

II. Discussion

A. Legal Standard for Motion to Dismiss "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff has pleaded facts that allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 129 S. Ct. at 1949. The Iqbal evaluation illustrates a two-prong analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Ashcroft, 129 S. Ct. at 1949-51.

Second, the Court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Ashcroft, 129 S. Ct. at 1951. If the allegations state plausible claims for relief, such claims survive the motion to dismiss. Ashcroft, 129 S. Ct. at 1950.

Plaintiff is representing herself pro se. Courts must liberally construe the pleadings of pro se parties. See United States v. Eatinger, 902 F.2d 1383, 1385 (9th Cir. 1990). However, "pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record." Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).

B. Unfair Lending Practices NRS §598D.100

In Nevada, a lender cannot knowingly originate a home loan for a borrower without determining whether the borrower has the ability to repay the loan. NRS §598D.100(1)(b). Claims under NRS §598(D) are limited by a two-year statute of limitations. NRS §11.190(4)(b); Taylor v. World Sav. Bank, F.S.B., 2012 WL 14028 (D.Nev.2012).

Plaintiff alleges that Defendants violated of the Unfair Lending Practices Act because they did not adequately evaluate Plaintiff's ability to repay the loan she secured on March 28, 2005. The statute of limitations begins to run from the date of the loan. Taylor, 2012 WL 14028. These allegations stem from the origination date of the loan. Therefore, this claim is time barred because the Complaint was filed on July 22, 2011, more than six years after the alleged violations. Accordingly, the claim for unfair lending practices is dismissed.

C. Deceptive Trade Practices

Plaintiff alleges that Defendants engaged in deceptive trade practices by knowingly making false representations by failing to provide Plaintiff with a Notice of Servicing as required in 12 U.S.C. 2605(a) in violation of NRS §§598.0915 and 598.0923. Defendants have moved to dismiss Plaintiff's claim asserting that §§598.0923 and 598.0915 relates to a person engaging in the sale of goods or services not real estate transactions.

It has been established that NRS §598 does not apply to real estate loan transactions. See Reyna v. Wells Fargo Bank, N.A., 2011 WL 2690087, *9 (D.Nev. 2011); see also Alexander v. Aurora Loan Services, 2010 WL 2773796, *2 (D.Nev. 2010). The Nevada Legislature has adopted legislation that deals strictly with lending practices, further supporting the conclusion that real estate transactions are not covered under NRS §§598.0915 or 598.0923. See generally NRS §598D. Plaintiff's claim is based in a real estate transaction therefore, these statutes do not provide an avenue for relief.

Assuming that NRS §§598.0915 and 598.0923 would apply to Plaintiff's claims of deceptive trade practices they would still fail because they are limited to a four-year statute of a limitation that accrues when the aggrieved party discovers or should have discovered the deceptive trade practice. NRS § 11.190(2)(d). Plaintiff's claim arises from the origination of the loan on March 28, 2005. The Complaint was filed on July 22, 2011, more than six years after the alleged violations. Additionally, Plaintiff has failed to file points and authorities in opposition to Defendants' Motion to Dismiss this claim. See LR 7-2(d)("The failure of an opposing party to file points and ...

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