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My Home Now, LLC v. JPMorgan Chase Bank, N.A.

United States District Court, D. Nevada

February 15, 2017

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.


          Gloria M. Navarro, Chief Judge United States District Judge

         Pending 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 GRANTED.

         I. BACKGROUND

         This 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).

         In 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. ¶ 19).

         Subsequently, 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. ¶¶ 42-46).


         Dismissal 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.” Id.

         If the 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).


         In the 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.

         A. Slander of Title

         Plaintiff 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)).

         Here, 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 ...

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