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Rosetto v. Wells Fargo Home Mortgage

United States District Court, D. Nevada

May 8, 2014

Gricelda Rosetto, Plaintiff,
Wells Fargo Home Mortgage, et al., Defendants.


GLORIA M. NAVARRO, Chief District Judge.

This action is filed by Plaintiff Gricelda Rosetto, and arises out of the foreclosure proceedings initiated against the property located at 3013 Ocean Port Dr., Las Vegas, NV, 89117, APN #: XXX-XX-XXX-XXX ("the property"). (Compl., Ex. A to Notice of Removal, ECF No. 1.) Pending before the Court is the Motion to Dismiss (ECF No. 4) filed by Defendants Wells Fargo Bank, N.A. and Mortgage Electronic Registration Systems, Inc. ("MERS").


On March 7, 2013, Plaintiff filed suit in state court seeking injunctive relief and to quiet title to the property, and that case was removed to this Court as Rosetto v. HSBC Bank USA, No. 2:13-cv-00813-GMN-GWF (D. Nev. 2013). ( See Order, July 23, 2013, Ex. 15 to RJN, ECF No. 5-15.) The Court dismissed Plaintiff's claims with prejudice on July 23, 2013. ( Id. )

Here, acknowledging this litigation history, Plaintiff has again filed suit in state court seeking injunctive relief as well as return of the property to herself, and the Defendants have removed the case to this Court. ( See Compl.; Mot. Return of Property, ECF No. 19.)

As a basis for bringing the instant claims, Plaintiff alleges that, "after the Quiet Title action was dismissed, the Plaintiff discovered new evidence that several existing claims against [Defendant NDSC] existed alleging, among other things, fraudulent forging of Trust Deed documents in numerous foreclosure cases." (Compl., 4:¶17.) Plaintiff alleges that the signature on "the Trust Deed documents" relating to her property does not match the signature on other documents for properties unrelated to this action, and "thus the notary, [Defendant NDSC], and [Defendant Todd]... have committed fraudulent conveyance designed to circumvent the requirements of NRS 107.028(3)(a)." ( Id. at 5:¶20.)

Plaintiff also brings two causes of action premised upon her cause of action for fraudulent conveyance, alleging violations of the Foreclosure Mediation Program Rules of the Supreme Court of Nevada. ( Id. )


Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as a factual allegation are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). "However, material which is properly submitted as part of the complaint may be considered." Id. Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take judicial notice of "matters of public record." Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if a court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. Fed.R.Civ.P. 12(d).

If the court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) Pursuant to Rule 15(a), the court should "freely" give leave to amend "when justice so requires, " and in the absence of a reason such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962).


As discussed below, the Court finds that the Motion to Dismiss (ECF No. 4) should be granted, and that Plaintiff's requests for various forms of relief must be denied. Plaintiff's claims are likely barred by res judicata or judicial estoppel, as discussed by Defendants in their motion. Even if not, the Court finds that ...

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