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Tennier v. Wells Fargo Bank

United States District Court, D. Nevada

May 6, 2014

JAMES TENNIER; LOIS TENNIER, Plaintiffs,
v.
WELLS FARGO BANK, N.A.; et al., Defendants.

ORDER

LARRY R. HICKS, District Judge.

Before the court is defendant Wells Fargo Bank, N.A.'s ("Wells Fargo") motion to dismiss. Doc. #3.[1] Plaintiffs James and Lois Tennier ("the Tenniers") filed an opposition (Doc. #6) to which Wells Fargo replied (Doc. #8).

Also before the court is the Tenniers' motion for a preliminary injunction. Doc. #11. Defendant Wells Fargo filed an opposition (Doc. #13) to which the Tenniers replied (Doc. #15).

I. Facts and Background

In December 2007, the Tenniers refinanced their existing home loan and entered into an Option Adjustable Rate Mortgage ("ARM") agreement with World Savings Bank, FSB ("WSB") as part of WSB's Pick-a-Payment' loan program. Eventually, the Tenniers defaulted on the refinanced loan and Wells Fargo, WSB's successor-in-interest, recorded a notice of default on the property.

Subsequently, on December 6, 2013, the Tenniers filed a complaint against defendants in state court. Doc. #1, Exhibit 1. The Tenniers then filed an amended complaint on December 26, 2013 (Doc. #1, Exhibit 2), and a second amended complaint on January 9, 2014 (Doc. #1, Exhibit 6). The second amended complaint alleges six causes of action against defendants: (1) fraudulent omissions; (2) breach of contract; (3) breach of the implied covenants of good faith and fair dealing; (4) unjust enrichment; (5) deceptive trade practice against elderly person; and (6) deceptive trade practice against a person with a disability. Id.

On January 15, 2014, Wells Fargo removed the complaint to federal court on the basis of diversity jurisdiction. Doc. #1. Thereafter, Wells Fargo filed the present motion to dismiss. Doc. #3.

II. Motion to Dismiss

A. Legal Standard

Wells Fargo seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. To survive a motion to dismiss for failure to state a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading standard. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). That is, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The Rule 8(a)(2) pleading standard does not require detailed factual allegations; however, a pleading that offers "labels and conclusions' or a formulaic recitation of the elements of a cause of action'" will not suffice. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Furthermore, Rule 8(a)(2) requires a complaint to "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference, based on the court's judicial experience and common sense, that the defendant is liable for the misconduct alleged. See id. at 1949-50. "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 1949 (internal quotation marks and citation omitted).

In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as true. Id. However, "bare assertions... amount[ing] to nothing more than a formulaic recitation of the elements of a... claim... are not entitled to an assumption of truth." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1951) (brackets in original) (internal quotation marks omitted). The court discounts these allegations because "they do nothing more than state a legal conclusion-even if that conclusion is cast in the form of a factual allegation." Id. (citing Iqbal, 129 S.Ct. at 1951.) "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Id.

B. Pick-a-Payment' Settlement Res Judicata

The doctrine of res judicata precludes a party from re-litigating issues in one court that have already been fully litigated on the merits in another court. See Five Star Capital Corp. v. Ruby, 194 P.3d 709, 713 (Nev. 2008). Further, "under elementary principles of prior adjudication a judgment in a properly entertained class action is binding on class ...


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