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Bank of New York Mellon v. Cascade Homeowners Associations, Inc.

United States District Court, D. Nevada

January 20, 2017

BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC., CHL MORTGAGE PASS-THROUGH TRUST 2004-29, MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2004-29 2505 W. CHANDLER BLVD., CHANDLER, AZ 85224, Plaintiff,
v.
CASCADE HOMEOWNERS ASSOCIATION, INC.; DAISY TRUST; and ABSOLUTE COLLECTION SERVICES LLC, Defendants.

          ORDER

          JAMES C. MAHAN UNITED STATES DISTRICT JUDGE.

         Presently before the court is defendant Daisy Trust's motion to dismiss. (ECF No. 11). Plaintiff Bank of New York Mellon f/k/a Bank of New York as Trustee for the Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust 2004-29, Mortgage Pass-Through Certificates, Series 2004-29, 2505 W. Chandler Blvd., Chandler, AZ 85224 (“BNYM”) filed a response (ECF No. 21), to which Daisy Trust replied (ECF No. 22).

         I. Facts

         This case involves a dispute over real property located at 7840 Ithaca Falls Street, Las Vegas, NV 89149 (the “property”).

         On April 23, 2004, Patrick and Suzanne Simmons (the “Simmonses”) purchased the property. (ECF No. 1 at 4). The Simmonses later refinanced the property by way of a loan in the amount of $276, 000.00 evidenced by a note and secured by a deed of trust recorded on November 9, 2004. (ECF No. 1 at 4).

         On September 2, 2011, defendant Absolute Collection Services LLC (“ACS”), acting on behalf of defendant Cascade Homeowners Association, Inc. (the “HOA”), recorded a notice of delinquent assessment lien, stating an amount due of $2, 959.85. (ECF No. 1 at 4). On November 9, 2011, ACS recorded a notice of default and election to sell to satisfy the delinquent assessment lien, stating an amount due of $3, 865.85. (ECF No. 1 at 4).

         On March 23, 2012, ACS recorded a notice of trustee's sale, scheduling the trustee's sale for May 15, 2012, and stating an amount due of $5, 505.85. (ECF No. 1 at 4-5). On August 14, 2012, defendant Daisy Trust purchased the property at the trustee's sale for $7, 700.00. (ECF No. 1 at 6). On August 15, 2012, a trustee's deed upon sale in favor of Daisy Trust was recorded. (ECF No. 1 at 6).

         On March 1, 2016, the assignment deed of trust assigning the deed of trust to BNYM was recorded. (ECF Nos. 1 at 4; 11 at 2).

         On June 14, 2016, BNYM filed a complaint alleging four causes of action against defendants the HOA, Daisy Trust, and ACS: (1) quiet title/declaratory relief against all defendants; (2) breach of NRS 116.1113 against the HOA and ACS; (3) wrongful foreclosure against the HOA and ACS; and (4) injunctive relief against Daisy Trust. (ECF No. 1). BNYM alleges that it attempted to tender the HOA lien amount to the HOA through ACS, but defendants failed to respond to BNYM's efforts. (ECF No. 1 at 5-6).

         In the instant motion, defendant Daisy Trust moves to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 11).

         II. Legal Standard

         A court may dismiss a 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, 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. 662, 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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