Searching over 5,500,000 cases.

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.

Johnston v. Nationstar Mortgage LLC

United States District Court, District of Nevada

April 7, 2015

Brian Johnston and Lanilee Johnston, Plaintiffs,
Nationstar Mortgage LLC, Defendant.


Gloria M. Navarro, Chief Judge United States District Court

Pending before the Court is the Motion to Dismiss, (ECF No. 38), and the supporting Memorandum of Points and Authorities, (ECF No. 39), filed by Defendant Nationstar Mortgage LLC. Plaintiffs Brian Johnston and Lanilee Johnston filed a Response, (ECF No. 48), to which Defendant replied, (ECF No. 55). For the reasons set forth herein, the Motion will be granted.


This case centers upon Plaintiffs’ allegations that Defendant failed to honor the terms of a binding loan modification agreement. (Compl., ECF No. 1).

Plaintiffs allege that they purchased a home on September 9, 2003, and financed approximately $246, 393.00 of its purchase price with a loan from Republic Mortgage, LLC. (Id. at ¶ 19). Subsequently, the Complaint states that Bank of America, N.A. assumed the servicing rights to the mortgage loan. (Id. at ¶ 20). After Plaintiffs became unable to make their monthly mortgage payments, Plaintiffs executed a loan modification agreement with Bank of America on October 15, 2012. (Id. at ¶ 22).

Pursuant to the loan modification agreement, Plaintiffs submitted monthly payments at the newly reduced rate of $1, 527.60, which were allegedly accepted by Bank of America in satisfaction of the agreement’s terms. (Id. at ¶¶ 23-24). On November 14, 2012, Plaintiffs received notice that Bank of America had transferred its interest in the mortgage loan to Defendant. (Id. at ¶ 25). When Plaintiffs repeatedly attempted to submit their monthly mortgage payment in early December 2012, Defendant allegedly stated that it was unable to process the payment because it did not yet have access to Plaintiffs’ loan documents and account information. (Id. at ¶¶ 26, 28, 29).

After Plaintiffs transferred $1, 527.60 to Defendant on December 18, 2012, Defendant sent a notice to Plaintiffs indicating that the payment was insufficient. (Id. at ¶¶ 30-31). This notice also indicated that the outstanding principal balance, required monthly payments, and interest rate were higher than the corresponding values provided in the loan modification agreement. (Id. at ¶ 31). On January 11, 2013, Defendant allegedly stated that it would not honor the terms of the loan modification agreement. (Id. at ¶ 33).

Between February 14, 2013, and December 7, 2013, the Complaint states that Plaintiffs consistently made monthly payments to Defendant in the amount of $1, 527.60 pursuant to the terms of the loan modification agreement. (Id. at ¶ 36). In response, Defendant allegedly sent monthly statements containing principal balances, monthly payment amounts, and interest rates which were inconsistent with the terms of the loan modification agreement. (Id. at ¶ 37). Plaintiffs further allege that Defendant sent numerous letters “demanding ever-increasing amounts from Plaintiffs to cure their purported default” in addition to attempting to charge unwarranted property inspection fees, legal fees, and interest. (Id.).

Plaintiffs filed this action on January 21, 2014. The Complaint sets forth claims for: (1) Breach of Contract; (2) Breach of Third Party Beneficiary Contract; (3) Breach of the Implied Covenant of Good Faith and Fair Dealing; and (4) Unjust Enrichment. (Compl. ¶¶ 47-84).

In support of its Motion to Dismiss, Defendant claims that it agreed to honor the loan modification agreement thirteen days before the instant action was filed and subsequently removed all fees associated with its delay in recognizing the agreement. (Mem. of Pts. & Authorities, ECF No. 39). Therefore, Defendant argues that this action is moot and should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).


“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Therefore, before a federal court may consider the merits of a case, it must first determine whether it has proper subject matter jurisdiction. Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 653-54 (9th Cir. 2002); see also Ex Parte McCardle, 74 U.S. 506, 514 (1868) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”).

“A claim becomes moot ‘when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.’” Haro v. Sebelius, 747 F.3d 1099, 1110 (9th Cir. 2014) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). “Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy.” Powell, 395 U.S. at 497.

Because mootness pertains to a federal court’s subject matter jurisdiction, it is properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “Rule 12(b)(1) jurisdictional attacks can be either facial or factual.” Id. With a factual Rule 12(b)(1) attack, “a court may look beyond the complaint to matters of public record without having to convert the motion into one for summary judgment. It also need not presume the truthfulness of the plaintiffs’ allegations.” Id. (internal citations omitted). “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing ...

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.