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Byrd v. American Home Mortgage Servicing Inc.

United States District Court, D. Nevada

July 18, 2014

MERCEDES BYRD, Plaintiff,
v.
AMERICAN HOME MORTGAGE SERVICING INC., OPTION ONE MORTGAGE LOAN TRUST, WELLS FARGO, N.A. TRS c/o OCWEN LOAN SERVICING, CHRIS ANDERSON, ALLAN BANASZEWSKI, DOES I-X, inclusive, and ROE CORPORATIONS I-X, inclusive. Defendants.

ORDER

GLORIA M. NAVARRO, Chief District Judge.

Currently before the Court is a civil action filed by Mercedes Byrd ("Plaintiff") against Defendants Homeward Residential, Inc. f/k/a American Home Mortgage Servicing, Inc. ("American Home"), Wells Fargo Bank, N.A. ("Wells Fargo"), and Ocwen Loan Servicing ("Ocwen") (collectively "Defendants") (ECF No. 1.) After filing her Complaint, Plaintiff also filed a Motion for Preliminary Injunction (ECF No. 6) and a Motion for Hearing Regarding Preliminary Injunction (ECF No. 8.) Defendants subsequently filed a Motion to Dismiss Plaintiff's Complaint (ECF No. 11.) Plaintiff has filed a Response to Defendants' Motion to Dismiss (ECF No. 14) and Defendants have filed a Reply in Support of their Motion to Dismiss (ECF No. 15.)

For the following reasons, the Court GRANTS Defendants' Motion to Dismiss Plaintiff's Complaint (ECF No. 11.)

I. BACKGROUND

On January 10, 2002, Plaintiff purchased of some property, located at 3670 Happy Lane, Las Vegas, Nevada 89120, APN# XXX-XX-XXX-XXX (the "Property"). (Sale Deed, ECF No. 13-1.)[1] On April 22, 2005, Plaintiff recorded a Deed of Trust and Note for $805, 000.00, naming Option One Mortgage Corporation as the beneficiary and Premier Trust Deed Services, Inc. as the Trustee. (Deed of Trust, ECF No. 13-2.) On June 22, 2007, Option One Mortgage Corporation executed an Assignment of Deed of Trust, making Wells Fargo, as Trustee for Option One Mortgage Loan Trust 2005-4 Asset-Backed Certificates, Series 2005-4, the beneficiary of the Deed of Trust. (Assignment of Deed of Trust, ECF No. 13-4.) That same day, Wells Fargo executed a Substitution of Trustee, naming Quality Loan Service Corporation as the new trustee under the Deed. (First Substitution of Trustee, ECF No. 13-3.)

On June 2, 2008, a Loan Modification Agreement between Wells Fargo and Plaintiff was recorded against the Property, indicating that the amount payable under the Note on March 1, 2008 was $886, 338.18. (Loan Modification Agreement, ECF No. 13-5.) On April 27, 2009, Wells Fargo executed a Substitution of Trustee, naming AHMSI Default Services, Inc. as the new trustee under the Deed. (Second Substitution of Trustee, ECF No. 13-6.)

Plaintiff does not deny in any of her pleadings that around September of 2010, she ceased making payments on her mortgage. (Notice of Default, ECF No. 13-7.) Subsequently, on December 7, 2010, Wells Fargo executed a Substitution of Trustee, naming Power Default Services, Inc. as the new trustee under the Deed. (Third Substitution of Trustee, ECF No. 13-8.) That same day, Power Default Services, Inc. recorded a Notice of Default and Election to Sell against the Property. (Notice of Default, ECF No. 13-7.)

On April 4, 2011, a Notice of Trustee's Sale was recorded against the Property, setting the sale for April 25, 2011. (4/4/11 Notice of Trustee's Sale, ECF No. 13-9.) In response, on April 12, 2011, Plaintiff filed a Complaint in state court, and later filed an Amended Complaint on April 20, 2011. (Mot. to Dismiss 3:7-12, ECF No. 12.) Plaintiff's Amended Complaint was dismissed without prejudice following a hearing on October 3, 2011, and an Order of Dismissal was entered on October 4, 2011. ( Id. )

On December 1, 2011, a second Notice of Trustee's Sale was recorded against the Property, setting the sale for December 21, 2011. (12/1/12 Notice of Trustee's Sale, ECF No. 13-10.) On July 17, 2012, a third Notice of Trustee's Sale was recorded against the Property, setting the sale for August 8, 2012. (7/17/12 Notice of Trustee's Sale, ECF No. 13-11.) On February 4, 2013, a fourth Notice of Trustee's Sale was recorded against the Property, setting the sale for February 26, 2013. (2/4/13 Notice of Trustee's Sale, ECF No. 13-12.) On June 3, 2013, a Trustee's Deed upon Sale was recorded, naming Wells Fargo, as Trustee for Option One Mortgage Loan Trust 2005-4, Asset-Backed Certificates, Series 2005-4, the owner of the Property with a purchase price in the amount of $550, 000.00. (Trustee's Deed upon Sale, ECF No. 13-13.)

On October 11, 2013, Plaintiff, appearing pro se, filed her Complaint in this Court. (Complaint, ECF No. 1.) In the Complaint, Plaintiff asserts claims for (1) fraudulent foreclosure, (2) fraudulent assignment, (3) notary fraud, (4) declaratory relief for the cancellation of instrument, (5) quiet title, (6) preliminary injunction and permanent injunction, and (7) breach of implied covenant of good faith and fair dealing. ( Id. 5:9-9:16.) Plaintiff subsequently filed her Motion for Preliminary Injunction (ECF No. 6) and Motion for a Hearing (ECF No. 8), seeking an Order from this Court that Defendants return possession of the Property to Plaintiff. On December 4, Defendants filed their Motion to Dismiss (ECF No. 11) under Rule 12(b)(6) for failure to state a claim.

II. LEGAL STANDARD

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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