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Rachel Burd v. Jp Morgan Chase and Bank of New York Mellon

April 25, 2013

RACHEL BURD,
PLAINTIFF(S),
v.
JP MORGAN CHASE AND BANK OF NEW YORK MELLON , DEFENDANT(S).



ORDER

Presently before the court is defendants JP Morgan Chase and Bank of New York Mellon's motion to dismiss. (Doc. # 4). Pro se plaintiff Rachel Burd responded (doc. # 8), and defendants filed a reply (doc. # 9).

I. Background Facts

On or about June 30, 2006, plaintiff purchased property located at 3017 Prairie Princess Avenue in North Las Vegas ("the property"). (Doc. 4-1, Ex. A). Plaintiff executed a promissory note in the amount of $232,950 in favor of Countrywide Bank, N.A., which was secured by a deed of trust against the property naming Mortgage Electronic Registration System, Inc. ("MERS") as the beneficiary. (Id.). CTC Real Estate Services was named as the trustee for the deed of trust. (Id.).

On October 6, 2009, MERS executed a corporation assignment of deed of trust, assigning the deed to the Bank of New York Mellon ("BNY") as the successor in interest of JP Morgan Chase. (Id. at Ex. B). Subsequently BNY executed a substitution of trustee, naming ReconTrust Company as trustee. (Id. at Ex. C).

Also, on October 6, 2009, ReconTrust Company recorded a notice of default. (Id. at Ex. D). ReconTrust Company recorded a rescission of the notice of default on April 8, 2010. (Id. at Ex. E). A notice of trustee's sale was recorded by ReconTrust Company on August 3, 2010. (Id. at Ex. F). A foreclosure mediation certificate was recorded by ReconTrust Company on October 25, 2010, and notices of trustee's sale were recorded on October 25, 2010, and March 15, 2011. (Id. at Exs. G-I). The property was sold at a trustee's sale on June 2, 2011, and a trustee's deed upon sale was recorded on June 21, 2011. (Id. at Ex. J)

Plaintiff filed her complaint on February 4, 2013, in state court. (Doc. # 1, Ex. A). Although not abundantly clear, the court, in fairness, construes plaintiff's pro se complaint to allege the following claims: (1) securitization, (2) validity of assignment, (3) misrepresentation and fraud, and

(4) quiet title. (Id.). Defendants removed the case on February 27, 2013 (doc. # 1), and subsequently filed the instant motion to dismiss (doc. # 4).

II. Legal Standard

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 it has not shown, that the pleader is entitled to relief." Id. (internal quotations and alterations omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. July 25, 2011). The Starr court stated, "First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to ...


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