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Bank of America, N.A. v. Bailey

United States District Court, D. Nevada

July 6, 2015

BANK OF AMERICA, N.A., Plaintiff(s),
v.
SAMUEL R. BAILEY, et al., Defendant(s).

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is defendant Samuel Bailey's motion to dismiss and to expunge lis pendens. (Doc. #9). Plaintiff Bank of America, N.A., ("BOA") filed a response, (doc. #21), and defendant filed a reply, (doc. #24).

I. Background

The instant action is a dispute over deeds of trust encumbering real property located at 4850 Impressario Court, Las Vegas, Nevada 89149 ("the Impressario property").

On December 17, 2008, then-owner Paul Aguilar (a named defendant) refinanced the Impressario property through Countrywide Bank, FBS, ("Countrywide") for $400, 000.00. Countrywide secured its loan via a deed of trust recorded against the property on December 17, 2008.

On January 23, 2010, Aguilar refinanced the Impressario property by obtaining a loan for $396, 459.00 from BOA. Aguilar used the loan proceeds to satisfy the outstanding balance owed on the Countrywide loan. The BOA loan was secured via a deed of trust, which BOA did not immediately record in the official records.[1] Countrywide recorded a substitution of trustee and reconveyance on February 2, 2010.

On June 25, 2010, Silver State Steel Group, Inc., ("Silver State") obtained a small business loan from Meadows Bank for $500, 000.00. Aguilar and Bailey are the two largest shareholders of Silver State. In addition to granting Meadows Bank a security interest in Silver State's assets, Aguilar offered additional security for the loan in the form of a deed of trust recorded against the Impressario property.

On November 17, 2010, Aguilar again refinanced the Impressario property by obtaining a loan from Franklin America Mortgage Company ("Franklin") in the amount of $397, 475.00. Aguilar used the loan proceeds to satisfy the outstanding balance owed on the BOA loan. The Franklin loan was secured by a deed of trust recorded against the property on December 1, 2010.

On December 13, 2012, Franklin assigned its rights and interests in its deed of trust to BOA through an assignment. On June 6, 2013, Meadows Bank assigned its rights and interests in its deed of trust to Bailey through an assignment.

Plaintiff filed suit on June 6, 2014. (Doc. #1). Plaintiff requests declaratory judgment establishing that BOA's security interest is superior to Bailey's, and to quiet title on the Impressario property. Defendant filed the instant motion to dismiss for failure to state a claim and to expunge lis pendens on February 17, 2015. (Doc. #9).

II. Legal Standard

a. 12(b)(6) motion to dismiss

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 Atl. 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, 556 U.S. 662, 678 (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, 556 U.S. at 678 (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; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the ...


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