United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge
before the Court is the Motion to Dismiss, (ECF No. 28),
filed by Defendant MortgageIT, Inc.
(“Defendant”). Plaintiff Manzar Hopkins
(“Plaintiff”) filed a Response, (ECF No. 29), and
Defendant filed a Reply, (ECF No. 30). For the reasons
discussed below, the Motion is GRANTED in
part and DENIED in part.
case arises from an alleged property recording dispute.
According to the Amended Complaint, on March 25, 2005,
Plaintiff applied to Defendant for a Home Equity Line of
Credit (“HELOC”) for $72, 000 on certain real
property located at 4504 Standing Bluff Way, Las Vegas, NV
89134 (“Standing Bluff”). (Am. Compl. ¶ 9,
ECF. No. 27). Plaintiff used the HELOC to purchase real
property located at 9232 Pitching Wedge Drive, Las Vegas, NV
89134 (“Pitching Wedge”). (Id. ¶
10). Plaintiff also “took out a mortgage with
[Defendant] for $288, 000.00 to complete the purchase for
[Pitching Wedge].” (Id. ¶ 11).
April 1, 2005, Defendant recorded the Deed of Trust for the
HELOC, “but did so on . . . the Pitching Wedge address
and not the Standing Bluff address on which the HELOC was
secured.” (Id. ¶ 14). As a result of this
error, title on Pitching Wedge was clouded by the HELOC.
(See id. ¶ 21).
December 21, 2009, Plaintiff attempted to extinguish the
HELOC and mortgage deb on Standing Bluff through a short
sale. (Id. ¶¶ 20). However, Plaintiff
alleges that because of Defendant's improper recording of
the HELOC, the short sale only extinguished the mortgage for
Standing Bluff and not the HELOC. (See id. ¶
21). Because the HELOC was not extinguished by the short
sale, Citibank, N.A. (“Citibank”) was later able
to purchase the HELOC from Defendant. (Id. ¶
22). Subsequently, Citibank “hounded Plaintiff
demanding she place home insurance on Standing Bluff, a home
she no longer owned.” (Id. ¶¶
25-26). Citibank also charged Plaintiff “an annual rate
of $979.00 for home insurance on Standing Bluff.”
(Id. ¶ 26). Based on these events, Plaintiff
alleges damages in the form of multiple insurance payments
made to Citibank resulting from the improperly recorded
HELOC, a negative impact on her credit report, and
attorneys' fees expended to “determine what was
happening in regard to Citibank.” (Id.
¶¶ 29, 40).
previously filed a motion to dismiss Plaintiff's single
claim of slander of title which the Court granted.
(See Mot. to Dismiss (“MTD”), ECF No.
11); (see also Order, ECF No. 26). The Court allowed
Plaintiff leave to amend her slander of title claim
concerning the element of malice. (Order 5:11-13). Plaintiff
subsequently filed an Amended Complaint alleging slander of
title and adding a negligence claim. (See Am.
Compl.). In the instant Motion, Defendant argues that
Plaintiff again fails to sufficiently allege that Defendant
acted maliciously or with malicious intent. (MTD 5:12-16, ECF
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 a 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).
Plaintiff's Amended Complaint, Plaintiff alleges slander
of title against Defendant. (Am. Compl. ¶¶
34-40). “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). The first element of false communication is
satisfied if the defendant records a false document.
Tai-Si Kim v. Kearney, 838 F.Supp.2d 1077, 1089 (D.
Nev. 2012). Further, 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 cause by the
false statement.” Tai-Si Kim, 838 F.Supp.2d at
1089 (citing Summa Corp v. Greenspun 655 P.2d 513,
515 (Nev. 1982)).
Amended Complaint, Plaintiff alleges that “Defendant
had express knowledge that [it] did not have any such
interest in the subject property, making the recorded
documents impliedly false and malicious: malicious, [sic]
because their actions were without any just cause, excuse, or
reasonable belief, and were substantially certain to cause
harm to the property's title and to Plaintiff.”
(Am. Compl. ¶ 36). Further, Plaintiff alleges that
Defendant acted maliciously in light of Defendant's
“express knowledge that [it] recorded a Deed of Trus
for a HELOC on [Pitching Wedge] and . . . failed to remove
said recordation.” (Id. ¶ 38). The Court
finds that Plaintiff's amended allegations adequately
plead that Defendant acted in reckless disregard of the false
document's truth or falsity, thereby satisfying the
malice requirement. See Rowland, 662 P.2d at 1335.
Because Plaintiff pleads a false document, malice, and
special damages, (Am. Compl. ¶¶ 25-39), Plaintiff
sufficiently alleges a cause of action for her slander of
title claim. See Higgins, 744 P.2d at 531.
argues in its instant Motion to Dismiss that Plaintiff's
slander of title claims are “exactly like the Original
Complaint.” (MTD 4:12-13). Further, Defendant contends
that Plaintiff fails to allege that Defendant “has said
or done anything which would even remotely show that either
[Plaintiff] or her property were harmed or damaged on account
of [Defendant].” (Id. 5:16-18). The Court does
not find these arguments persuasive. As the Cou previously
held, Plaintiff's allegations that Defendant recorded the
Deed of Trust on the wrong property “shows the recorded
Deed of Trust is a false document, ” and caused
Plaintiff to incur “special damages through the
insurance payments made to Citibank and attorney's fees
expended to discover the alleged false statement.”
(Order 4:20-5:1). Plaintiff therefore pleads-and has