United States District Court, D. Nevada
MY HOME NOW, LLC, a Nevada Limited Liability Company, Plaintiff,
JP MORGAN CHASE BANK, N.A. a National Banking Corporation; U.S. BANK TRUST, N.A. AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST, a National Banking Corporation; CALIBER HOME LOANS, a South Carolina Corporation, Defendants.
M. Navarro, Chief Judge United States District Judge
before the Court is the Motion to Dismiss, (ECF No. 8), filed
by Defendant JP Morgan Chase Bank, N.A.
(“Defendant”). Plaintiff My Home Now, LLC
(“Plaintiff”) filed a Response, (ECF No. 9), and
Defendant filed a Reply, (ECF No. 13). For the reasons
discussed below, Defendant's Motion to Dismiss is
case arises out of the parties' disputed ownership of
real property located at 7555 Glowing Ember Court, Unit 101,
Las Vegas, Nevada, 89130 (the “Property”). (Ex. A
to Mot. to Dismiss (First Am. Compl. (“FAC”))
¶ 1, ECF No. 8-1). Plaintiff alleges that Defendant
“claims an interest in the Property via a deed of trust
securing a loan . . . on September 18, 2008 . . . with the
Clark County Recorder, State of Nevada.” (Id.
¶ 3). Plaintiff acquired the Property on June 18, 2014.
(Id. ¶ 14).
October 2014, Plaintiff filed a separate quiet title suit
against Defendant in this Court for Defendant's interest
in the Property. (Id. ¶ 5); (see My Home
Now, LLC v. JP Morgan Chase Bank N.A., et al,
2:14-cv-01958-APG-NJK) (hereinafter the “Prior
Action”). In February 2015, Defendant notified
Plaintiff that it “had no interest in the Property and
that the title had been reassigned to another entity along
with beneficial interest therein.” (FAC ¶ 8).
Pursuant to this exchange, Defendant filed a Disclaimer of
Interest (the “Disclaimer”) in February 2015,
disclaiming any legal or equitable interest in the Property.
(Id. ¶ 9). Because Defendant filed the
Disclaimer, Plaintiff stipulated to dismiss its claims
against Defendant in the Prior Action. (Id. ¶
Plaintiff later learned that Defendant assigned its interest
to the Secretary of Housing and Urban Development
(“HUD”) on July 31, 2015, and then HUD assigned
its interest to U.S. Bank on August 31, 2015. (Id.
¶ 20). Both assignments were recorded on September 23,
2015. (Id.). Plaintiff alleges that Defendant's
assignment following the stipulation of dismissal filed in
the Prior Action constitutes “slander of title.”
(Id. ¶ 21). Plaintiff contends that because of
the assignment, he cannot obtain title insurance for the
Property due to “the existence of a cloud on title
caused by the [assignments of [i]nterest.” (Id.
¶¶ 20-24). Additionally, Plaintiff alleges
that Defendant's assignment constitutes a breach of
contract of the Prior Action's stipulated dismissal
because the stipulation was based on Defendant claiming it
had no interest in the Property. (Id. ¶¶
is appropriate under Rule 12(b)(6) where a pleader fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). A pleading must give fair notice of a legally
cognizable claim and the grounds on which it rests, and
although a court must take all factual allegations as true,
legal conclusions couched as factual allegations are
insufficient. Twombly, 550 U.S. at 555. Accordingly,
Rule 12(b)(6) requires “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. This standard “asks for more than a sheer
possibility that a defendant has acted unlawfully.”
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
prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.” Foman
v. Davis, 371 U.S. 178, 182 (1962).
instant Motion, Defendant seeks to dismiss Plaintiff's
allegations of: (1) quiet title; (2) slander of title; and
(3) breach of contract. (See Mot. to Dismiss
(“MTD”), ECF No. 8). Because neither party
disputes dismissal of the quiet title action, (see
Id. 6:18-19); (Resp. 2:9-11, ECF No. 9), the Court will
address the remaining claims of slander of title and breach
of contract in turn.
Slander of Title
alleges slander of title against Defendant because Defendant
“clouded title to the Property” by recording its
assignment with HUD. (FAC ¶ 34). Plaintiff alleges
Defendant assigned the interest “with the deliberate
intent to harm and injure Plaintiff and interfere with its
existing property ownership.” (FAC ¶ 35).
“Slander of title involves false and malicious
communication, disparaging to one's title in land, and
causing special damage.” Higgins v. Higgins,
744 P.2d 530, 531 (Nev. 1987) (per curiam).
Allegations that the defendant knew the statement was false
or acted in reckless disregard of its truth or falsity will
satisfy the malice requirement. Rowland v. Lepire,
662 P.2d 1332, 1335 (Nev. 1983). Special damages may include
“both impairment of the land's vendibility as well
as expenses sustained in removing the cloud on
plaintiff's title caused by the false statement.”
Tai-Si Kim v. Kearney, 838 F.Supp.2d 1077, 1089 (D.
Nev. 2012) (citing Summa Corp v. Greenspun, 655 P.2d
513, 515 (Nev. 1982)).
Plaintiff fails to assert in its FAC that Defendant's
Disclaimer was completed “in reckless disregard of its
truth or falsity.” Rowland, 662 P.2d at 1335.
Instead, Plaintiff merely alleges that Defendant's
assignment was completed “with the deliberate intent to
harm and injure Plaintiff.” (FAC ¶ 35). This
conclusory recitation does not satisfy the element of malice.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Plaintiff contends in its Response that
Defendant's Disclaimer was a “knowingly false
communication, ” (Resp. 4:17), the Court must rely on
the allegations set forth ...