United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is defendants' Bank of America, N.A.'s ("Bank of America") and Bank of New York Mellon Corporation's ("New York Mellon") motion to dismiss plaintiff's first amended complaint. (Doc. # 12). Defendant Select Portfolio Servicing, Inc. ("Select") joined the motion to dismiss. (Doc. # 26). Plaintiff filed a response (doc. # 25), and defendants filed a reply (doc. # 27).
On September 15, 2005, Andrew Lai executed a promissory note for $999, 950.00. (Doc. # 12, exh. A). The note was secured by a deed of trust in favor of Countrywide Home Loans, Inc. ("Countrywide"), and encumbered the real property located at 1999 Alcova Ridge Drive, Las Vegas, Nevada 89135. (Doc. # 12, exh. A). The deed of trust named Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for the lender and the lender's successors and assigns. (Doc. # 12, exh. A). On September 15, 2009, MERS assigned the deed of trust to New York Mellon. (Doc. # 12, exh. B).
Lai defaulted on the note and deed of trust. On September 15, 2009, Recontrust Company, N.A. ("Recontrust"), as substitute trustee, recorded a notice of default and election to sell against the property. (Doc. # 12, exh. C). Recontrust then recorded a notice of trustee's sale on June 28, 2010. (Doc. # 12, exh. D). Recontrust recorded a rescission of the election to declare default on April 13, 2012. (Doc. # 12, exh. E).
On June 26, 2013, a substitution of trustee was recorded, naming National Default Servicing Corporation ("National Default") as substitute trustee under the deed of trust. (Doc. # 12, exh. F). National Default then recorded a notice of default and election to sell against the property on October 30, 2014, and a notice of trustee's sale on February 5, 2015. (Doc. # 12, exhs. G-H). The notice of default identifies Select as the servicer of the loan. (Doc. # 12, exh. G).
Plaintiff initiated the instant action in Eighth Judicial District Court for Clark County, Nevada, on February 26, 2015, seeking to enjoin the foreclosure sale. (Doc. # 1-1). The state court granted plaintiff's request for a temporary restraining order on February 27, 2015. (Doc. # 1-1 at 27-28).
Defendants removed this case to federal court on April 1, 2015. (Doc. # 1). On April 8, 2015, defendants filed their first motion to dismiss. (Doc. # 5).
Also on April 8, 2015, plaintiff Woodbury Law, Ltd., filed an amended complaint alleging that it obtained title to the property from Lai and is the current owner of the property. (Doc. # 6, ¶¶ 12-13). Plaintiff further alleges that it has acquired the right to bring Lai's "choses in action" and is Lai's successor in interest to the property and choses in action. (Doc. # 6, ¶¶ 14-16). Plaintiff alleges that Bank of America and New York Mellon lack standing to foreclose on the deed of trust, and that the loan Lai obtained was illegal because Lai was charged illegal feels and was not given required disclosures. ( See doc. # 6).
Based on these allegations, plaintiff brings claims for (1) preliminary and permanent injunctive relief; (2) quiet title; (3) slander of title; (4) violations of Fair Debt Collection Practices Act; (5) violation of NRS § 107; (6) an accounting; (7) declaratory relief; (8) negligence; (9) negligence per se; (10) breach of the implied covenant of good faith and fair dealing; (11) unjust enrichment; (12) violations of Nevada Unfair Lending Practices Act; and (13) violations of the Truth in Lending Act and other federal laws. Plaintiff seeks a permanent injunction and a declaratory judgment, preventing defendants from foreclosing on the property and monetary damages. (Doc. # 6, ¶¶ 74-82).
Defendants now move to dismiss plaintiff's amended complaint with prejudice.
II. 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 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 ...