United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE.
before the Court are two Motions to Dismiss (ECF Nos. 12,
14), one filed by Defendants National Default Servicing
Corporation (“NDSC”), Michael A Bosco, Wendy Van
Luven, and Carmen Navejas (collectively, “NDSC
Defendants”), and one filed by Duke Partners II, LLC
(“Duke Partners”) (NDSC Defendants and Duke
Partners collectively, “Defendants”). Also
pending before the Court are many motions filed by pro se
Plaintiffs Ronald and Jann Williams
(“Plaintiffs”). (See ECF Nos. 35, 39,
55, 56, 72). Duke Partners has also filed a Motion for
Sanctions (ECF No. 42) and Motion for Finding of Vexatious
Litigants (ECF No. 60). All of these motions are fully
pending before the Court is Duke Partners' Emergency Ex
Parte Motion for Temporary Restraining Order
(“TRO”). (ECF No. 75).
action arises out of the foreclosure sale of real property
located at 258 Bonnie Claire Court, Henderson, Nevada 89074
(the “Property”). (Compl. ¶ 17, ECF No. 1).
On October 25, 2005, Plaintiffs obtained a loan in the amount of
$332, 500.00 from Washington Mutual Bank, FA
(“WMB”) that was secured by a Deed of Trust on
the Property. (Deed of Trust, Ex. 2 to Duke Partners MTD, ECF
No. 14-2). The Deed of Trust named WMB as the
beneficiary and California Reconveyance Company as the
trustee. (Id.). On May 2, 2006, Plaintiffs obtained
a Home Equity Line of Credit in the amount of $47, 344.75
from GE Money Bank, also secured by a Deed of Trust on the
Property. (Second Deed of Trust, Ex. 3 to Duke Partners MTD,
ECF No. 14-3).
October 22, 2009, California Reconveyance Company Recorded a
Notice of Default and Election to Sell. (Ex. 5 to Duke
Partners MTD, ECF No. 14-5). Plaintiffs participated in the
Nevada Foreclosure Mediation Program and entered into an
agreement to modify their loan, but Plaintiffs subsequently
rescinded the agreement. (Ex. 6-7 to Duke Partners MTD, ECF
No. 14-6-14-7). On January 15, 2010, Plaintiffs filed a
Verified Petition for Judicial Review by the Eight Judicial
District Court for Clark Count, Nevada (“Nevada State
Court”), which upheld the Foreclosure Mediation and
allowed the foreclosure to proceed. (Ex. 8-9 to Duke Partners
MTD, ECF No. 14-8-14-9). Plaintiffs then filed a Petition for
Writ of Mandamus with the Nevada Supreme Court, which was
denied on May 7, 2010, on the procedural grounds that
Plaintiffs should have filed an appeal, not a Petition for
Writ of Mandamus. (Ex. 10-11 to Duke Partners MTD, ECF No.
January 27, 2010, Plaintiffs filed a Complaint in this Court
against JPMorgan Chase Bank, N.A. (“Chase”),
among other defendants, alleging claims for violation of the
Fair Debt Collection Practices Act under 15 U.S.C. §
1692a (the “FDCPA”), fraudulent misrepresentation
and failure to disclose, and unjust enrichment. (See
Williams v. JPMorgan Chase Bank, N.A., Case No.
2:10-cv-0118-PMP-PAL (D. Nev. 2010)). On April 5, 2010, the
Court dismissed Plaintiffs' case for failure to state a
claim, explaining that Plaintiffs' allegations failed to
demonstrate that defendants were debt collectors under the
FDCPA, and “it appears [on] the face of the Complaint
that the [defendants] are simply pursuing recovery of monies
under an express written contract.” (Order,
Williams, Case No. 2:10-cv-0118-PMP-PAL (D. Nev.
April 5, 2010), ECF No. 44). On November 2, 2011, this Order
was affirmed by the Ninth Circuit. (See Memorandum
of USCA, Ninth Circuit, Williams, Case No.
2:10-cv-0118-PMP-PAL (D. Nev. November 2, 2011), ECF No. 69).
September 26, 2012, a Substitution of Trustee was recorded on
the Property, making NDSC the new Trustee. (Ex. 15 to Duke
Partners MTD, ECF No. 14-15). On February 11, 2014, NDSC
filed a Notice of Rescission of Notice of Default and
Election to Sell. (Ex. 16 to Duke Partners MTD, ECF No.
14-16). On June 9, 2014, the Federal Deposit Insurance
Corporation (“FDIC”) as Receiver for WMB recorded
a Corporate Assignment of Deed of Trust on the Property,
assigning the beneficiary interest in the Deed of Trust to
Chase. (Ex. 17 to Duke Partners MTD, ECF No. 14-17).
According to the Assignment, the transfer of beneficiary
interest to Chase actually occurred on September 25, 2008.
(Id.). On July 8, 2014, NDSC recorded a new Notice
of Default and Election to Sell. (Ex. 18 to Duke Partners
MTD, ECF No. 14-18).
March 18, 2015, after participating again in the Nevada
Foreclosure Mediation Program, Plaintiffs filed another
Verified Petition for Judicial Review in Nevada State Court
of this second Foreclosure Mediation. (Ex. 20 to Duke
Partners MTD, ECF No. 14-20). In their Petition, Plaintiffs
asserted that Chase “is not the owner of
[Plaintiffs'] mortgage note.” (Id. at
4:1). On October 23, 2015, the Nevada State Court denied
Plaintiffs' Petition, instead finding that Chase
“is the current beneficiary under the deed of trust
securing the promissory note evidencing [Plaintiffs']
loan” and “has the authority to enforce the
promissory note” on Plaintiffs' loan. (Order
4:9-14, Williams v. JPMorgan Chase Bank, Case No.
A-15-715441-J (Nev. 8th Jud. Dist. Ct. Oct. 21, 2015);
(see also Ex. 21 to Duke Partners MTD, ECF No.
14-21). The Nevada State Court also ordered that a
“Foreclosure Mediation Program Certificate shall issue
with respect to the [Plaintiffs'] property.” (Order
5:3-6). The Foreclosure Mediation Program Certificate was
recorded on February 4, 2016. (Ex. 22 to Duke Partners MTD,
ECF No. 14-22).
31, 2016, NDSC recorded a Notice of Trustee's Sale,
providing notice to Plaintiffs that the Property would be
sold on June 24, 2016. (Ex. 23 to Duke Partners MTD, ECF No.
14-23). On July 8, 2016, NDSC recorded a Trustee's Deed
upon Sale conveying the Property to Duke Partners, the
highest bidder at the June 24, 2006 foreclosure sale, for
$219, 200.00. (Ex. 24 to Duke Partners MTD, ECF No. 14-24).
August 5, 2016, Plaintiffs filed the instant Complaint
alleging the following three causes of action: (1)
“False Representation concerning Title and Fraudulent
Foreclosure”; (2) Quiet Title; and (3) Intentional
Infliction of Emotional Distress. (Id. ¶¶
Rule of Civil Procedure (“Rule”) 12(b)(6)
mandates that a court dismiss a cause of action that fails to
state a claim upon which relief can be granted. See North
Star Int'l. v. Ariz. Corp. Comm'n., 720 F.2d
578, 581 (9th Cir. 1983). When considering a motion to
dismiss under Rule 12(b)(6) for failure to state a claim,
dismissal is appropriate only when the complaint does not
give the defendant fair notice of a legally cognizable claim
and the grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
Court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
Court, however, is not required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences. See Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic
recitation of a cause of action with conclusory allegations
is not sufficient; a plaintiff must plead facts showing that
a violation is plausible, not just possible.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(citing Twombly, 550 U.S. at 555) (emphasis added).
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 Federal Rule of Evidence
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). The Court
need not accept as true those allegations that contradict
facts properly subject to judicial notice. Shwarz v.
United States, 234 F.3d 428, 435 (9th Cir. 2000).
court grants a motion to dismiss for failure to state a
claim, leave to amend should be granted unless it is clear
that the deficiencies of the complaint cannot be cured by
amendment. DeSoto v. Yellow Freight Sys., Inc., 957
F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the
court should “freely” give leave to amend
“when justice so requires, ” and in the absence
of a reason such as “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue