United States District Court, D. Nevada
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,
CASCADE HOMEOWNERS ASSOCIATION, INC.; DAISY TRUST; and ABSOLUTE COLLECTION SERVICES LLC, Defendants.
C. MAHAN UNITED STATES DISTRICT JUDGE.
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
case involves a dispute over real property located at 7840
Ithaca Falls Street, Las Vegas, NV 89149 (the
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).
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).
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).
March 1, 2016, the assignment deed of trust assigning the
deed of trust to BNYM was recorded. (ECF Nos. 1 at 4; 11 at
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).
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).
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).
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).
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 ...