United States District Court, D. Nevada
before the court is defendant Arlington West Twilight
Homeowners Association's (the “HOA”) motion
to dismiss. (ECF No. 21). Plaintiff Bank of America, N.A.
(“BANA”) filed a response (ECF No. 22), to which
the HOA replied (ECF No. 30).
before the court is the HOA's motion to dismiss the
crossclaims filed by defendant/crossclaimant Thomas Jessup,
LLC, Series IV (“Jessup IV”). (ECF No. 27).
Jessup IV filed a response (ECF No. 31), to which the HOA
replied (ECF No. 32).
case involves a dispute over real property located at 9179
Smugglers Beach Court, Las Vegas, Nevada 89178 (the
March 26, 2008, Roy and Michelle Kinard (the
“Kinards”) purchased the property by way of a
loan from DHI Mortgage Company, LTD. in the amount of $294,
956.00, which was secured by a deed of trust recorded on
March 31, 2008. (ECF No. 1 at 4). Federal Housing
Administration (“FHA”) insured the note and deed
of trust. (ECF No. 1 at 4). Later, the deed of trust was
assigned to BANA via an assignment of deed of trust. (ECF No.
1 at 4).
October 21, 2010, Alessi & Koenig, LLC
(“A&K”), acting on behalf of the HOA,
recorded a notice of delinquent assessment lien, stating an
amount due of $850.00. (ECF No. 1 at 4). On January 31, 2011,
A&K recorded a notice of default and election to sell to
satisfy the delinquent assessment lien, stating an amount due
of $1, 807.00. (ECF No. 1 at 4-5).
10, 2011, BANA remitted payment to the HOA to satisfy to
super-priority amount owed to the HOA. (ECF No. 1 at 5).
August 14, 2012, A&K recorded a notice of trustee's
sale, stating an amount due of $3, 256.00 and scheduling the
sale for September 12, 2012. (ECF No. 1 at 5). Defendant
Thomas Jessup, LLC (“Jessup”) purchased the
property at the foreclosure sale for $7, 350.00. (ECF No. 1
at 6). A trustee's deed upon sale in favor of Jessup was
recorded on October 2, 2012. (ECF No. 1 at 6).
IV acquired the property from Jessup via a quit claim deed
recorded on May 31, 2013. (ECF No. 1 at 6).
March 24, 2016, BANA filed the underlying complaint, alleging
four causes of action: (1) quiet title/declaratory judgment
against all defendants; (2) breach of NRS 116.1113 against
the HOA and A&K; (3) wrongful foreclosure against the HOA
and A&K; and (4) injunctive relief against Jessup
IV. (ECF No. 1).
April 15, 2016, Jessup IV filed an answer and
cross/counterclaims, alleging two causes of action: (1) quiet
title against all parties; and (2) declaratory relief against
BANA. (ECF No. 11).
instant motions, the HOA moves to dismiss both BANA's
complaint and Jessup IV's crossclaim. (ECF Nos. 21, 27).
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 elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged-but not shown-that the pleader is entitled to
relief.” Id. (internal quotation marks
omitted). When the allegations in a complaint have not
crossed the line from conceivable to plausible,
plaintiff's claim must be dismissed. Twombly,
550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court stated, in relevant
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not ...