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Hernandez v. Bank of America

United States District Court, D. Nevada

April 14, 2014

BANK OF AMERICA, et al., Defendants.


GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is a pro se civil action filed by Perla Hernandez ("Plaintiff") against Bank of America, N.A., incorrectly sued as Bank of America, ("BOA") and ReconTrust Company N.A., incorrectly sued as Recontrust Company, ("ReconTrust") (Complaint, ECF No. 1.) Defendants filed a Motion to Dismiss Plaintiff's Complaint (ECF No. 13) on October 2, 2013, and Plaintiff filed a Response in Opposition (ECF No. 16) on October 11, 2013. On October 16, 2013, Defendants filed a Reply in Support of their Motion to Dismiss. (ECF No. 17.)

For the following reasons, the Court will GRANT Defendants' Motion to Dismiss Plaintiff's Complaint (ECF No. 13.)


On February 28, 2005, Plaintiff financed the purchase of some property, located at 9975 Peace Way, Las Vegas, Nevada 89147, APN# XXX-XX-XXX-XXX (the "Property"), by obtaining a $203, 841.00 loan from Countrywide Home Loans, Inc. ("Countrywide"), which was secured by a Deed of Trust. (Deed of Trust, ECF No. 13-1.)[1] The Deed of Trust named Mortgage Electronic Registration Systems, Inc. ("MERS") as the beneficiary and Nevada Title as the Trustee and granted MERS the right to foreclose on the Property. ( Id. ) On February 24, 2011, MERS executed a Corporation Assignment of Deed of Trust, making The Bank of New York Mellon fka The Bank of New York the beneficiary under the Deed of Trust. (Corporation Assignment of Deed of Trust, ECF No. 13-2.)[2] MERS also executed a Substitution of Trustee on February 24, 2011, naming ReconTrust as trustee. (Substitution of Trustee, ECF No. 13-3.)[3]

Plaintiff does not deny in any of her pleadings that around February of 2008, she ceased making payments on her mortgage. (Complaint, ECF No. 1; Notice of Default and Election to Sell, ECF No. 13-4.)[4] As a result of Plaintiff's failure to pay, on February 24, 2011, ReconTrust recorded a Notice of Default and Election to Sell. (Notice of Default and Election to Sell, ECF No. 13-4.)

ReconTrust recorded a Foreclosure Mediation Certificate on May 25, 2011, which identified the Property as one that does not require mediation for foreclosure to proceed. (Mediation Foreclosure Certificate, ECF No. 13-5.)[5] ReconTrust also recorded a Notice of Trustee Sale on May 25, 2011, setting a foreclosure sale of the Property for June 14, 2011 at 10:00 am. (May 2011 Notice of Trustee's Sale, ECF No. 13-6.)[6]

On June 6, 2011, however, Plaintiff filed an "Affidavit of Fact" in which she avers several unsupported and conclusory statements, [7] including the demonstrably false statement that the mortgage loan is "invalid... since the lender did not, in fact, provide an actual loan to [Plaintiff]." (Affidavit of Fact, ECF No. 13-7;[8] Deed of Trust, ECF No. 13-1.) On June 28, 2011, Plaintiff also recorded a "Deed of Full Reconveyance, " which appears to be a fraudulent document, [9] wherein an individual identified as Alex P. Soria claims to be Trustee under the Deed of Trust and purports to reconvey the Property to Plaintiff "by reason of satisfaction of the obligation secured by said Deed of Trust." (Deed of Full Reconveyance, ECF No. 13-8.)[10]

Subsequently, on November 16, 2011, ReconTrust recorded an Affidavit of Erroneous Recordation, declaring the Deed of Full Reconveyance to have been recorded "in error or fraudulently by unknown unauthorized persons." (Affidavit of Erroneous Recordation, ECF No. 13-9.)[11] Thereafter, ReconTrust recorded Notices of Trustee's Sale on March 6, 2012, September 11, 2012, and February 27, 2013 (March 2012, Sept. 2012, and Feb. 2013 Notices of Trustee's Sale, ECF Nos. 13-10, 13-11, 13-12.)[12] The Property was then sold at foreclosure, and on March 22, 2013, ReconTrust recorded a Trustee's Deed upon Sale. (Trustee's Deed upon Sale, ECF No. 13-13.)[13]

Plaintiff filed her Complaint on August 2, 2013. (Complaint, ECF No. 1.) Liberally construing the inartfully pled Complaint, Plaintiff appears to be asserting a claim for wrongful foreclosure and seeks quiet title based upon Plaintiff's alleged "Good-Faith Offers to Pay" and Plaintiff's unsupported allegations that the foreclosure was conducted with "fraudulent court documents." ( Id. ) Also attached to the Complaint is a "Brief in support of Complaint, " which consists of two pages of convoluted citations to federal statutes without any explanation of how these statutes apply to the current case. ( Id. at pp. 50-52.) Furthermore, Plaintiff's Opposition to Defendants' Motion to Dismiss (ECF No. 16) fails to provide any additional facts or relevant law supporting the claims alleged in the Complaint.


Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See North Star Int'l. v. Arizona Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the Court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555) (emphasis added).

A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino Police Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2) requires that a plaintiff's complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Prolix, confusing complaints" should be dismissed because "they impose unfair burdens on litigants and judges." McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir.1996). Mindful of the fact that the Supreme Court has "instructed the federal courts to liberally construe the inartful ...

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