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Deleon v. U.S. Bank National Association

United States District Court, D. Nevada

March 13, 2014

IRMA DELEON, Plaintiff(s
v.
U.S. BANK NATIONAL ASSOCIATION, Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is defendant U.S. Bank National Association's ("U.S. Bank") motion to dismiss. (Doc. # 5). Plaintiff Irma Deleon has filed a response (doc. # 13) and U.S. Bank has filed a reply (doc. # 14).

I. Background

On or about April 11, 2005, plaintiff purchased real property located at 3311 Kaniksu Court, Las Vegas, Nevada 89122 ("the property"). (Doc. # 5 at 2). Ryland Mortgage Company loaned plaintiff $184, 700.00 to purchase the property, securing the loan with a deed of trust against the property. (Doc. # 5 at 2; doc. # 5, ex. A). The deed of trust named Mortgage Electronic Registration Systems, Inc. ("MERS") as the beneficiary and David Brown as trustee. (Doc. # 5, ex. A). On March 20, 2013, MERS assigned the deed of trust to U.S. Bank. (Doc. # 5, ex. B). Plaintiff alleges she did not have knowledge of this assignment. (Doc. # 13 at 2). Plaintiff claims that the assignment was executed on behalf of MERS by Mercedes Judilla who purports to be the "assistant secretary" but in reality is a "notorious robo-signer." (Doc. # 13 at 2). Accordingly, plaintiff argues the assignment is not valid. (Doc. # 13 at 3).

Plaintiff recorded a lis pendens against the property on June 27, 2013. (Doc. # 5, ex. C). Plaintiff also recorded a rogue document entitled "affidavit of fact." (Doc. # 5, ex. D). There are virtually no facts alleged in the complaint and the causes of action are not listed or even identified. The court relies heavily on judicially recognized, authenticated, exhibits.[1]

Plaintiff's complaint is a variant of a form document that is nearly identical to complaints recently filed by other plaintiffs. The court has dismissed these other complaints for their failure to state a claim. See, e.g., Beebe v. Fed. Nat'l Mort. Assoc., No. 2:13-cv-311-JCM-GWF; Burd v. J.P. Morgan Chase, No. 2:13-cv-337-JCM-PAL; Salinas v. Fed. Nat'l Mort. Assoc., No. 2:13-cv-407-JCM-GWF; Santivanes v. Bank of New York Mellon, No. 2:13-cv-00299-JCM-GWF.

II. Legal Standard

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 put forward a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's complaint alleges facts that allow 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 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. 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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