Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Feria v. Loans

United States District Court, D. Nevada

September 10, 2014

JUAN FRANCO and ARACELY FERIA, Plaintiffs,
v.
COUNTRYWIDE HOME LOANS, et al., Defendants.

ORDER

MIRANDA M. DU, District Judge.

I. SUMMARY

Before the Court is Defendants' Motion to Dismiss Plaintiffs' Amended Complaint (dkt. no. 37) ("Motion").[1] For the reasons discussed below, the Motion is granted.

II. BACKGROUND

The Amended Complaint is not a model of clarity. The Court gathers the following allegations based on a liberal reading of the Amended Complaint.

Plaintiffs Aracely Feria and Juan Franco obtained a loan with Countrywide Bank, N.A. to purchase real property located at 9979 Ridgehaven Avenue in Las Vegas, Nevada ("the Property") on August 23, 2006. (Dkt. no. 34 at 2; dkt. no. 37-1.) Plaintiffs owned the Property subject to a Note and Deed of Trust.[2] ( Id. ) Plaintiffs allege that Countywide Bank, N.A. is the original holder of the Note, but the current holder of the Note is unknown to them. (Dkt. no. 34 at 2-3.) Plaintiffs further allege that although Bank of America Home Loans is alleged to be the current servicing company for the Note, Defendants cannot identify the current holder of the Note and failed to provide the Note in response to Plaintiffs' request. ( Id. )

On May 26, 2009, Recontrust recorded a Notice of Default and Election to Sell under Deed of Trust ("Notice of Default").[3] (Dkt. no. 37-2.) Plaintiffs allege that Defendants offered them a loan modification, which they timely accepted; but the foreclosure sale occurred on September 22, 2009, before the deadline for Plaintiffs to accept the modification. (Dkt. no. 34 at 4-5.) The Trustee's Deed Upon Sale ("Trustee's Deed") was recorded on October 22, 2009. (Dkt. no. 37-3.)

The Amended Complaint identifies the following entities: Countrywide Home Loans, Inc., Countrywide Bank, N.A., Bank of America, Bank of America, N.A., Bank of America Home Loans, and Recontrust.[4] (Dkt. no. 34 at 4.) Plaintiffs assert eight claims for relief: (1) injunctive relief, (2) declaratory relief, (3) wrongful foreclosure, (4) breach of contract and the implied covenant of good faith and fair dealing, (5) deceptive or unfair trade practices, (6) fraud, (7) violations of NRS § 104, and (8) violations of NRS §§ 107.080 and 107.028.

III. DISCUSSION

A. Legal Standard

A court may dismiss a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A properly pleaded complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Rule 8 notice pleading standard requires Plaintiff to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (internal quotation marks and citation omitted). While Rule 8 does not require detailed factual allegations, it demands more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ( quoting Twombly, 550 U.S. at 545). "Factual allegations must be enough to rise above the speculative level." Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (internal quotation marks omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, a district court must accept as true all well-pleaded factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Iqbal, 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a district court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow a court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has "alleged-but not shown-that the pleader is entitled to relief." Id. at 679 (internal quotation marks omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. A complaint must contain either direct or inferential allegations concerning "all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562 ( quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989)).

B. Analysis

Plaintiffs object to Defendants' submission of documents outside the pleadings. However, in considering a motion to dismiss, the Court "may take judicial notice of matters of public record" without converting a motion to dismiss to a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (internal quotation marks omitted); see Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 866 n.1 (9th Cir. 2004) (noting that the court may take judicial notice of the records of state agencies and other undisputed matters of public record under Fed.R.Evid. 201). The Court thus takes judicial notice of the four publicly recorded documents submitted with ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.