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Andrijana Mackovska v. Recontrust Company

May 16, 2013

ANDRIJANA MACKOVSKA,
PLAINTIFF,
v.
RECONTRUST COMPANY, N.A., ET AL., DEFENDANTS.



ORDER

Presently before the court is defendants', Bank Home Loan Servicing, LP, Federal National Mortgage Association, and Recontrust Company, N.A., motion to dismiss. (Doc. # 19). Plaintiff filed a response in opposition (doc. # 23), and defendants filed a reply (doc. # 24).

I. Background

Plaintiff purchased the real property located at 1300 Montclair Street in Las Vegas, Nevada, on or around April 19, 2006. Plaintiff entered into a loan agreement with Soma Financing in the amount of $261,000 for the purpose of purchasing the home. (Doc. # 1, Ex. A, Compl. at ¶ 9). The loan was secured by a first position deed of trust encumbering the property.*fn1

On June 2, 2009, plaintiff entered into a loan modification agreement after defaulting on her mortgage payments. (Id. at ¶ 12). The modification was approved on July 11, 2009, and, subsequently, plaintiff made timely payments for ten months. (Id.).

On September 3, 2010, however, plaintiff received a notice of default and eventually listed the property for short sale on May 10, 2011. (Id. at ¶ 13). Plaintiff alleges she entered into an agreement with BAC Home Loans Servicing that would allow her to proceed with the short sale. (Id. at ¶ 16).

On September 3, 2010, Mortgage Electronic Registration Systems ("MERS") as beneficiary and nominee under the terms of the deed of trust assigned the beneficial interest in the deed of trust to BAC Home Loans Servicing. On June 14, 2011, BAC Home Loans Servicing assigned the beneficial interest in the deed of trust to Federal National Mortgage Association ("Fannie Mae").

Also on September 3, 2010, BAC Home Loans Servicing substituted Recontrust as trustee under the deed of trust. Recontrust executed and recorded a notice of default and election to sell under the deed of trust on the subject property on that same date.

Plaintiff elected not to participate in Nevada's foreclosure mediation program, and a certificate to proceed with foreclosure was issued on February 19, 2011, and later recorded on March 22, 2011. Recontrust recorded a notice of trustee's sale on March 22, 2011.

A foreclosure sale was held on June 9, 2011. The property reverted back to Fannie Mae, the beneficiary under the deed of trust. The trustee's deed was rescinded on July 18, 2011, because the foreclosure sale was conducted "in error due to a failure to communicate timely notice of conditions which would have warranted a cancellation of the foreclosure sale which did occur on 06/09/2011."

Following the rescission of the trustee's sale, plaintiff stopped making payments on the property and instead proceeded with an attempted short sale. Due to plaintiff's default, a second trustee's sale was noticed for August 23, 2011. Plaintiff did not cure her default and the property reverted back to Fannie Mae at the trustee's sale on August 23, 2011.

Plaintiff proceeded with her short sale, which she alleges BAC Home Loans Servicing agreed to, and finalized a sale with a buyer and close of escrow for September 16, 2011. (Compl. at ¶¶ 17- 20). BAC Home Loans Servicing's trustee's sale occurred more than two weeks before escrow closed on plaintiff's short sale agreement.

Based on these facts, plaintiff filed this action in state court. Defendants removed to this court. This court has already dismissed two defendants from the case. Plaintiff alleges the following five causes of action with differentiating between any of the defendants: (1) breach of contract; (2) breach of covenant of good faith and fair dealing; (3) injunctive relief; (4) wrongful foreclosure; and,

(5) fraud and ...


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