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Bartello v. Citimortgage, Inc.

United States District Court, D. Nevada

April 16, 2014

Vincent Bartello, Plaintiff,
v.
CitiMortgage, Inc.; Mortgage Electronic Registration Systems, Inc.; and Northwest Trustee Services, Inc., Defendants.

ORDER

GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is Plaintiff Vincent Bartello's Motion for Preliminary Injunction (ECF No. 1), and Motion to Remand (ECF No. 9). Also before the Court is the Motion to Dismiss (ECF No. 7) filed by Defendant CitiMortgage, Inc. ("CitiMortgage") and "MERSCORP, INC., formerly known and designated in the caption as Mortgage Electronic Registration Systems, Inc., ' (MERS')" and joined by Defendant Northwest Trustee Services, Inc. ("Northwest") (ECF No. 16), as well as Northwest's Motion to Dismiss (ECF No. 17).

I. BACKGROUND

Plaintiff's claims relate to the mortgage loan, deed of trust and foreclosure proceedings for the property located at 9708 Winter Palace Drive, Las Vegas, Nevada 89145 ("the property"). (Compl., 2: ¶ 6, Ex. A to Notice of Removal, ECF No. 1-2.) In 2003, Plaintiff executed a Deed of Trust for the property, in which MERS is named beneficiary solely as nominee for the lender and the lender's successors and assigns. ( Id. at 2-3: ¶¶ 8, 13.) In 2011, CitiMortgage was assigned the beneficial interest in the Deed of Trust. ( Id. at 3: ¶¶ 8-9.)

Plaintiff alleges that he "is presently faced with foreclosure... and has made requests to [CitiMortgage] to request a short sale upon the denial of his modification on September 12, 2013." ( Id. at 3: ¶ 15.)

On October 7, 2013, Plaintiff filed a Complaint in state court against Defendants CitiMortgage, MERS, and Northwest (collectively, "Defendants"), alleging causes of action for: (1) declaratory relief; (2) injunctive relief; (3) breach of contract; (4) breach of the covenant of good faith and fair dealing; (5) inspection and accounting; (6) unfair lending practices, violation of NRS 598D.100; (7) deceptive trade practices; and (8) wrongful foreclosure. ( Id. )

The balance of the mortgage loan is approximately $1, 775, 000.00, and Plaintiff alleges that the current market value is the same. ( Id. at 3: ¶¶ 16, 17.) Plaintiff alleges that CitiMortgage acted in bad faith in its actions relating to Plaintiff's attempts to obtain a loan modification. ( Id. at 4.) Plaintiff alleges that Defendants, including Northwest as Trustee under the Deed of Trust, have violated Nevada foreclosure, lending and debt collection practices statutes in foreclosing on the property. ( Id. at 4-5.)

CitiMortgage removed the action to this Court on October 15, 2013, on its own behalf and on behalf of "MERSCORP, INC., formerly known and designated in the caption as Mortgage Electronic Registration Systems, Inc.'"[1] (Notice of Removal, 1:20-22, ECF No. 1.) CitiMortgage "was served with the Summons and Complaint on or about October 8, 2013, " (Notice of Removal, 2: ¶ 3), and Northwest "was served with a copy of the Complaint on or about October 8, 2013" (Joinder, 1:¶1, ECF No. 12). As of October 21, 2013, MERS had not been served (Statement Upon Removal, 1: ¶ 1, ECF No. 8), and no party has since submitted any proof of service upon MERS.

II. DISCUSSION

As discussed below, the Court finds that it has jurisdiction over this action based upon diversity of citizenship of the parties, and therefore Plaintiff's Motion to Remand (ECF No. 9) must be denied.

Also, the Court finds that Plaintiff has failed to state a legally cognizable claim and the grounds upon which it rests against Defendants, and that therefore the Motion to Dismiss (ECF No. 7) and Motion to Dismiss (ECF No. 17) must be granted.

As a result, the Court cannot find that Plaintiff has met his burden to show that he is entitled to a preliminary injunction, and therefore the Motion for Preliminary Injunction (ECF No. 1) must be denied.

Finally, the Court finds that Plaintiff should be given leave to amend, and therefore his Complaint will be dismissed without prejudice.

A. Jurisdiction and Motion to Remand

In the Complaint, Plaintiff alleges that CitiMortgage "was a corporation authorized to do and is doing business in the State of Nevada, " that MERS "was a corporation authorized to do and is doing business in the State of Nevada, " and that Northwest "was a corporation authorized to do and is doing business in the State of Nevada." (Compl. at 2: ¶¶ 2-4.)

However, in the Notice of Removal, filed October 15, 2013, CitiMortgage alleges that "[n]o Defendant is a citizen of Nevada, " that it is "a New York Corporation with its principle [sic] place of business in New York, " that "MERS is a Delaware Corporation with its principle [sic] place of business in New York, " and that Northwest "is a Washington Corporation with its principle [sic] place of business in Oregon." (Notice of Removal, 2: ¶ 4.) Furthermore, attached as Exhibit F to the Notice of Removal is a copy of an email from counsel for Northwest, addressed to counsel for CitiMortgage, indicating that "Northwest Trustee Services, Inc. consents to removing the above-referenced case to federal court." (ECF No. 1-7.)

On October 31, 2013, after Plaintiff filed its Motion to Remand (ECF No. 9), Northwest also filed its Joinder to Petition for Removal (ECF No. 12), indicating that it ...


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