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Chamani v. BAC Home Loans Servicing, LP

United States District Court, D. Nevada

July 13, 2015

PERRY CHAMANI and FAY CHAMANI, Plaintiffs,
v.
BAC HOME LOANS SERVICING, LP fka COUNTRYWIDE HOME LOANS SERVICING, LP; et al., Defendants.

ORDER

LARRY R. HICKS, District Judge.

Before the court is defendant AH4R-NV2, LLC's ("AH4R") motion to dismiss plaintiffs Perry and Fay Chamani's ("the Chamanis") second amended complaint (Doc. #48[1]) and for release of lis pendens. Doc. #97. The Chamanis filed an opposition. Doc. #105.

I. Facts and Procedural History

This is a wrongful foreclosure and breach of contract action brought by the Chamanis against defendants. On or about October 15, 2007, the Chamanis obtained a residential loan from non-party Countrywide Bank, FSB for property located in Las Vegas, Nevada. The loan was secured by a promissory note and deed of trust which designated the Mortgage Electronic Registration System ("MERS") as beneficiary under the deed of trust and non-party ReconTrust Company, N.A. as trustee.

In mid 2009, the Chamanis defaulted on the mortgage note. Subsequently, on September 15, 2009, MERS assigned the beneficial interest under the deed of trust to defendant BAC Home Loans Servicing, LP ("BAC"). However, the assignment of the beneficial interest was not recorded until July 8, 2011. Also on September 15, 2009, defendant BAC substituted defendant Trustee Corps as the trustee under the deed of trust. This substitution of trustee was recorded on November 5, 2009.

On September 17, 2009, defendant BAC executed a notice of default and election to sell which was recorded on September 18, 2009. On April 9, 2010, the mandatory Nevada Foreclosure Mediation Program issued a certificate allowing BAC to proceed with the non-judicial foreclosure. On July 1, 2011, defendant Trustee Corps, as the substituted trustee, executed a notice of trustee's sale which was recorded on July 8, 2011. A second notice of trustee's sale was recorded on March 28, 2012, setting the trustee's sale for April 27, 2012. At the trustee's sale, defendant AH4R-NV 2, LLC purchased the property and recorded a deed of sale on May 18, 2012.

On April 26, 2012, prior to the trustee's sale, the Chamanis filed a complaint against defendants for wrongful foreclosure. Doc. #1, Exhibit A. Subsequently, on December 4, 2014, the Chamanis filed the underlying second amended complaint alleging eight (8) causes of action against defendants: (1) violation of NRS 107.080; (2) breach of contract; (3) waiver of default; (4) breach of the covenants of good faith and fair dealing; (5) quiet title; (6) slander of title; (7) violation of NRS 107.080(5) & (7); and (8) unlawful detainer. Doc. #48.[2] Thereafter, defendants AH4R filed the present motion to dismiss. Doc. #97.

II. Legal Standard

Defendant AH4R seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. 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. See 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 Rule 8(a)(2) pleading standard does not require detailed factual allegations; however, 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, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Furthermore, Rule 8(a)(2) requires a complaint to "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. at 1949 (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference, based on the court's judicial experience and common sense, that the defendant is liable for the misconduct alleged. See id. at 1949-50. "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 1949 (internal quotation marks and citation omitted).

In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as true. Id. However, "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) (quoting Iqbal, 129 S.Ct. at 1951) (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, 129 S.Ct. at 1951.) "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.

III. Discussion

A. Violation of NRS 107.080

In their second amended complaint, the Chamanis allege that defendants conducted the foreclosure in violation of NRS 107.080. Specifically, the Chamanis charge that defendant BAC was without authority to record the notice of default because at the time of the recording the mortgage note had not yet been properly assigned to BAC. As a result, the Chamanis contend that the notice of ...


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