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Riger v. Hometown Mortgage, LLC

United States District Court, D. Nevada

January 14, 2015

MERLY CS RIGER, Plaintiff,


LARRY R. HICKS, District Judge.

Before the Court is Defendant U.S. Bank, N.A.'s ("U.S. Bank") Motion to Dismiss Plaintiff Merly CS Riger's ("Riger") claims of defective foreclosure. Doc. #24.[1] Riger filed an Opposition (Doc. #37), to which U.S. Bank Replied (Doc. #39). In her Opposition, Riger requested that the Court grant Riger leave to amend her Complaint to omit three causes of action. Doc. #37 at 13.

I. Facts and Procedural Background

After purchasing the subject property with her then-husband, Riger recorded a Deed of Trust with the Washoe County Recorder's Office on April 26, 2004, naming Hometown Mortgage LLC as the Lender, United Title of Nevada as Trustee, and requesting that all tax statements be sent to Wells Fargo Home Mortgage, Inc. Doc. #3 ¶8. The National Default Servicing Corporation ("NDSC") recorded a Notice of Default ("NOD") on behalf of U.S. Bank on November 17, 2009. Id. ¶9. Because the property was used as rental property when the NOD was recorded, Defendants recorded a Certificate of Mediation on March 24, 2010, stating that no mediation was requested or required. Id. ¶10. U.S. Bank recorded a First Notice of Sale ("First NOS") on March 24, 2010. Id. ¶11.

On April 5, 2010, Riger filed suit against U.S. Bank and NDSC in the Second Judicial District Court, Washoe County, Nevada, claiming causes of action related to wrongful foreclosure. Doc. #25, Ex. 10. Riger's complaint was merged with the In re Mortgage Electronic Registration Systems Litigation, and the class filed an Amended Master Complaint on June 4, 2011. Id., Ex. 11. The United States District Court for the District of Arizona dismissed the class' claims on October 3, 2011, and the Ninth Circuit affirmed the dismissal on June 12, 2014. Id., Ex. 12; id., Ex. 13.

U.S. Bank recorded a Second Notice of Sale ("Second NOS") on May 15, 2014, and scheduled foreclosure for August 25, 2014. Doc. #3 ¶12. By the time of the Second NOS, Riger had divorced her husband and moved into the property as her principal residence. Id. ¶13. Riger attempted to elect mediation upon receipt of the Second NOS, but her request was returned by Nevada State Foreclosure Mediation without explanation. Id. ¶15. NDSC conducted a foreclosure sale on the property at 11:00 a.m. on August 25, 2014. Id. ¶21. An Assignment of Deed of Trust was recorded on August 25, 2014, at 2:09 p.m., which assigned the deed from Mortgage Electronic Registration Systems, Inc. to U.S. Bank. Id. ¶20.

Riger filed this Complaint and recorded a lis pendens on September 3, 2014. Id. The Complaint stated five causes of action: (1) violations of NRS § 107.080; (2) actual fraud; (3) violations of the Nevada Deceptive Trade Practices Act; (4) breach of the implied covenant of good faith and fair dealing; and (5) quiet title. Id. U.S. Bank filed its Motion to Dismiss on November 7, 2014. Doc. #24. In her Opposition, Riger requested that the Court grant leave to amend to file a First Amended Complaint. The Amended Complaint attached to the Response excludes Riger's second through fourth claims, and only alleges causes of action for violations of NRS § 107.080 and quiet title. Doc. #37, Ex. 1.

II. Legal Standard

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. 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 8(a)(2) pleading standard does not require detailed factual allegations, but 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as true. Id. The "factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Moreover, "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) (citing Iqbal, 556 U.S. at 681) (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, 556 U.S. at 681). "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.

Before trial, a party can amend its complaint twenty-one days after serving it or twentyone days after service of a responsive pleading or motion to dismiss under Rule 12(b)(6). Fed.R.Civ.P. 15(a)(1). The court can also grant leave to amend "when justice so requires." Fed.R.Civ.P. 15(a)(2). If the court grants a motion to dismiss, "[t]he standard for granting leave to amend is generous." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990). The Court will generally only decline to grant leave to amend if the party opposing amendment shows "bad faith, undue delay, prejudice to the opposing party, futility of amendment, " or that the plaintiff has previously amended the complaint without healing its defects. United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011) (citing Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)).

III. Discussion

A. Claim Preclusion

Claim preclusion "bars lawsuits on claims that were raised or could have been raised in a prior action.'" Fed. Trade Comm'n v. Garvey, 383 F.3d 891, 897 (9th Cir. 2004) (citing Providence Health Plan v. McDowell, 361 F.3d 1243, 1249 (9th Cir. 2004)). "Claim preclusion applies if there is (1) an identify of claims; (2) a final judgment on the merits; and (3) identity or privity between parties." Id. (internal quotation marks omitted). "The central criterion in determining whether there is an identity of claims between the first and second adjudications is whether the two suits arise out of the same transactional nucleus of facts.'" Frank v. United Airlines, Inc., 216 F.3d 845, 851 (9th Cir. 2000) (quoting Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982)). "It is immaterial whether the claims asserted subsequent to the ...

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