United States District Court, D. Nevada
before the court is defendant Paradise Hills Landscape
Maintenance Association, Inc.'s (“Paradise”)
motion to dismiss the complaint. (ECF No. 6). Plaintiff Bank
of America, N.A. (“BoA”) filed a response (ECF
No. 15), and defendant filed a reply (ECF No. 16).
January 22, 2016, plaintiff filed its complaint, alleging six
claims in relation to defendant's foreclosure and
subsequent non-judicial foreclosure sale on the real property
at 164 Golden Crown Avenue, Henderson, Nevada 89002. (ECF No.
August 8, 2008, deed of trust, securing a $319, 978 loan, was
executed by purchasers of the property, and Mortgage
Electronic Registration Systems, Inc. (“MERS”)
was the beneficiary. (Id.). On September 30, 2014,
MERS recorded its assignment of the deed of trust and note to
April 12, 2011, Paradise's trustee, Homeowner Association
Services (“HAS”), recorded a notice of claim of
lien-homeowner assessment on behalf of
Paradise. (Id.). HAS then, on December 14,
2011, recorded a notice of default and election to sell under
notice of delinquent assessment lien against the property.
(Id.). On March 15, 2012, plaintiff attempted to pay
the super-priority lien debt of $472.50, but the payment was
rejected on March 30, 2012. (Id.).
servicer recorded a request for notification of default on
December 3, 2014; however, HAS allegedly recorded a notice of
sale against the property for Paradise on July 21, 2015.
(Id.). Co-defendant Saticoy Bay, LLC Series 164
Golden Crown (“Saticoy”) acquired the property
for $9, 000. (Id.). At that time, the amount
outstanding on the original loan allegedly exceeded $313,
741.76, and the fair market value of the property was roughly
$274, 557.00. (Id.).
result of these offered facts, plaintiff asserts the
following six claims or requests for relief against
defendants: (1) quiet title/declarative relief against both
defendants; (2) a preliminary injunction against Saticoy; (3)
unjust enrichment against both defendants; (4) wrongful
foreclosure against Paradise; (5) negligence against
Paradise; and (6) negligence per se against
court may dismiss a plaintiff's 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). Although rule 8 does not
require detailed factual allegations, it does require more
than labels and conclusions. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Furthermore, a
formulaic recitation of the elements of a cause of action
will not suffice. Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009) (citation omitted). Rule 8 does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions. Id. at 678-79.
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Id. 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. When a complaint pleads facts that are
merely consistent with a defendant's liability, and shows
only a mere possibility of entitlement, the complaint does
not meet the requirements to show plausibility of entitlement
to relief. Id.
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering a
motion to dismiss. Id. First, the court must accept
as true all of the allegations contained in a complaint.
However, this requirement is inapplicable to legal
conclusions. Id. Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss. Id. at 678. Where 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.
at 679. 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 held:
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 unfair to require the opposing party to be
subjected to the expense of discovery and continued