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Isabel Santivanes v. Bank of New York Mellon & Countrywide Securities

April 16, 2013

ISABEL SANTIVANES,
PLAINTIFF(S),
v.
BANK OF NEW YORK MELLON & COUNTRYWIDE SECURITIES, DEFENDANT(S).



ORDER

Presently before the court is defendant the Bank of New York Mellon's motion to dismiss. (Doc. # 4).*fn1 Pro se plaintiff Isabel Santivanes responded (doc. # 7), defendant replied (doc. # 11).

I. Facts

The facts are not readily ascertainable from pro se plaintiff's complaint.*fn2 However, the court properly relies on judicially noticed documents to ascertain the facts of this matter.*fn3

On or about July 18, 2006, plaintiff purchased property located at 4018 Judson Avenue, Las Vegas, Nevada 89115 (the "property"). Plaintiff borrowed $391,500 from Harbourton Mortgage Investment Corporation in the form of promissory note to purchase the property. (Doc. # 4, Ex. A). The note was secured by a deed of trust against the property naming Mortgage Electronic Registration System, Inc. ("MERS") as beneficiary. (Id.). First American Title Company of Nevada was named as trustee. (Id.).

On May 9, 2011, MERS recorded a corporation assignment of deed of trust to BAC Home Loans Servicing, LP, fka Countrywide Home Loan Servicing, LP ("BANA"). (Id., Ex. B). That same day, BANA recorded a substitution of trustee, naming ReconTrust Company, N.A. ("ReconTrust") as trustee. (Id., Ex. C). Also on that day, ReconTrust recorded a notice of default against the property. (Id., Ex. D).

On February 5, 2013, ReconTrust recorded the foreclosure mediation certificate (id., Ex. E), and a notice of trustee's sale (id., Ex. F).

On February 7, 2013, plaintiff filed the instant complaint against defendants. Liberally construing plaintiff's complaint, it appears she is pleading causes of action for (1) intentional misrepresentation, (2) negligent misrepresentation, and (3) quiet title.

II. Legal Standards

A. Rule 8

A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted).

"Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 1949.

Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's complaint alleges facts that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949.

Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged -- but not shown -- that the pleader is entitled to relief." Id. (internal quotations omitted). When the allegations in a complaint have not crossed the line from conceivable ...


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