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Hakimi v. The Bank of New York Mellon

United States District Court, D. Nevada

May 5, 2015

IMAN HAKIMI, Plaintiff(s),
v.
THE BANK OF NEW YORK MELLON et al., Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is defendants Bank of America, N.A., CTC Real Estate Services, and Mortgage Electronic Registration Systems, Inc.'s motion to dismiss complaint. (Doc. # 5). National Default Servicing Corporation joined defendants' motion. (Doc. # 19). Pro se plaintiff Iman Hakimi filed a response (doc. # 17). Defendants did not file a reply.

I. Background

This case arises out of a mortgage loan that plaintiff obtained to finance the purchase of real property located at 537 Hagens Alley, Mesquite, Nevada 89027. To evidence the loan, plaintiff executed a promissory note for $155, 500.00. A first deed of trust for the benefit of Countrywide Bank, N.A. ("Countrywide") secured the note. (Doc. # 5-1, exh. A). The deed of trust named Mortgage Electronic Registration Systems, Inc. ("MERS") as beneficiary and CTC Real Estate Services ("CTC") as trustee. ( Id. ). The deed of trust was recorded with the Clark County recorder on October 1, 2004. ( Id. ).

On December 20, 2012, MERS assigned the deed of trust to Bank of America. (Doc. # 5-2, exh. B). Bank of America recorded a substitution of trustee on September 20, 2013, naming National Default Servicing Corporation ("National Default") as trustee under the deed of trust. (Doc. # 5-3, exh. C). Plaintiff defaulted on the loan. On September 30, 2013, National Default, as substitute trustee, recorded a notice of default and election to sell the property. (Doc. # 1 at ¶ 40; doc. # 5-4, exh. D). On February 8, 2015, Bank of America recorded an assignment transferring the deed of trust to MCM Capital Partners, LLC ("MCM") as trustee for securitized trust ventures trust 2013-I-H-R. (Doc. # 1 at ¶ 47; doc. # 5-5, exh. E).

National Default recorded a notice of trustee's sale against the property on April 11, 2014. (Doc. # 1 at ¶ 51; doc. # 5-6, exh. F). National Default recorded a second notice of trustee's sale against the property on September 30, 2014. (Doc. # 5-7, exh. G). On October 21, 2014, ventures trust 2013-I-H-R purchased the property at foreclosure through its trustee, MCM. (Doc. # 5-8, exh. H).

On October 14, 2014, plaintiff brought suit in the Eighth Judicial District Court for Clark County, Nevada. (Doc. # 1-1). Defendants Bank of America and CTC removed the case to this court on December 30, 2014. (Doc. # 1). Plaintiff's complaint asserts claims for (1) lack of standing/wrongful foreclosure; (2) fraud in the concealment; (3) fraud in the inducement; (4) slander of title; (5) quiet title; (6) declaratory relief; (7) violation of the Truth in Lending Act ("TILA"); (8) violation of the Real Estate Settlement Procedures Act ("RESPA"); (9) contractual rescission; (10) intentional infliction of emotional distress; and (11) fraud. (Doc. # 1-1). Plaintiff also seeks compensatory, special, general, and punitive damages, as well as an order granting him ownership of the property in fee simple. ( Id. ).

Defendants Bank of America, CTC, and MERS ("defendants") bring the instant motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) and ask the court to dismiss plaintiff's complaint against them with prejudice. (Doc. # 5).

II. Legal Standards

A. Rule 8

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 pled 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). 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, 129 S.Ct. 1937, 1949 (2009) (citation omitted). "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, 129 S.Ct. at 1949 (citation omitted).

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint. Id. at 1950. However, legal conclusions are not entitled to the assumption of truth. Id . at 1950. Mere recitals of the elements of a cause of action, supported by only conclusory statements, do not suffice. Id . at 1949. Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id . at 1950. A claim is facially plausible when the plaintiff's complaint alleges facts that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id . at 1949.

Where the complaint does not "permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not shown, that the pleader is entitled to relief." Id . (internal quotations and alterations omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

The Ninth Circuit addressed post- Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The Starr court stated, "First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, 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." Id.

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.... However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990) (citations omitted). 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). Under Fed.R.Evid. 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001).

B. Rule 9

Rule 9 provides that for a party to allege fraud, he "must state with particularity the circumstances constituting fraud.... Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed.R.Civ.P. 9(b). Assertions of fraud must include "the who, what, when, where, and how" of the misconduct alleged. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003). Rule 9 serves several purposes, including: (1) providing defendants with adequate notice so they are able to defend the charge and deter plaintiffs from filing complaints "as a pretext for the discovery of unknown wrongs'; (2) to protect those whose reputation would be harmed as a result of being subject to fraud charges; and (3) to prohibit [ ] plaintiff[s] from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis.'" Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir.2009) (quoting In re Stac Elecs. Sec Litig., 89 F.3d 1399, 1405 (9th Cir.1996) (citation omitted)).

III. Discussion

As an initial matter, the court acknowledges plaintiff filed his response to defendants' motion to dismiss pro se. Plaintiff's response to defendants' motion to dismiss is, therefore, held to less stringent standards. Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal quotations and citations omitted). However, " pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record." Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). Because plaintiff's 46-page complaint was prepared and filed by an attorney, it will not be held to less stringent standards.

Plaintiff's complaint is a version of a form complaint available on the internet.[1] The complaint appears to make little attempt to connect plaintiff's causes of action to the factual allegations in this particular case. Plaintiff refers generally to "Defendant" and "Defendants" without any attempt to identify which defendant took which particular action. Further, many of plaintiff's ...


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