Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Seare v. Bank of New York Mellon

United States District Court, D. Nevada

February 24, 2017

WAYNE SEARE, et al., Plaintiffs,
v.
BANK OF NEW YORK MELLON, et al., Defendants.

          ORDER

          JAMES C. MAHAN, UNITED STATES DISTRICT JUDGE

         Presently before the court is a motion to dismiss filed by defendants Bank of New York Mellon (“BNYM”), Mortgage Electronic Registration Systems, Inc. (“MERS”), and Seaside Trustee Inc. (“Seaside” and collectively, with BNYM and MERS, as “defendants”). (ECF No. 6). Plaintiffs Wayne Seare (“Seare”) and Marinette Tedoco (“Tedoco” and collectively, with Seare, as “plaintiffs”) filed a response. (ECF No. 8).

         Also before the court is defendants' motion to dismiss. (ECF No. 11). Plaintiffs filed a response (ECF No. 15), to which defendants replied (ECF No. 18).

         1. Facts

         This case involves a dispute over real property located at 23 Desert Palm Drive, Las Vegas, Nevada 89183 (the “property”).

         On April 27, 2007, Sherry Morales obtained a loan for $322, 896.00 to purchase the property, which was secured by a deed of trust under which MERS was beneficiary. On March 2, 2012, MERS assigned the deed of trust to BNYM via an assignment of deed of trust recorded on March 6, 2012.

         On June 28, 2014, Morales purported to convey title to the property to plaintiffs via a quitclaim deed, breaching the terms of her loan agreement. (ECF No. 11 at 3).

         On July 28, 2015, Seaside, acting on behalf of BNYM, recorded a notice of breach and default and election to sell. On March 28, 2016, the foreclosure mediation program issued a certificate indicating that a mediation conference was held on January 22, 2016, and no resolution resulted. (ECF No. 11 at 3). The certificate stated that the beneficiary may proceed with the foreclosure process. (ECF No. 11, exh. F).

         On May 31, 2016, defendant Duke Partners II LLC purchased the property for $192, 000.01. (ECF No. 11 at 3).

         On April 21, 2016, plaintiff filed the original complaint (ECF No. 2), which they later amended on July 7, 2016 (ECF No. 9). In their amended complaint, plaintiffs allege twenty-two (22) causes of action. (ECF No. 9). In sum, claims (1) through (15) seek declaratory relief, claim (16) seeks a cancellation of the instruments, claim (17) alleges fraud and deceit, claims (18) and (19) allege violations of New York General Business Law § 349 and Nevada Business and Professional Code, claims (20) and (21) allege violations of 15 U.S.C. §§ 1692e and 1641(g), and claim (22) alleges a statutorily defective foreclosure. (ECF No. 9).

         Plaintiffs seek a declaration, inter alia, that the assignment of deed of trust recorded on March 6, 2012, wherein MERS assigned the deed of trust to BNYM, is void. (ECF No. 9 at 13). Plaintiffs argue that the assignment conflicts with the original promissory note and thus should be voided. (ECF No. 9 at 12-13).

         In the instant motion, defendants move to dismiss the amended complaint. (ECF No. 11).

         II. Legal Standard

         A court 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).

         “Factual 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. at 678 (citation omitted).

         In 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.

         Second, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.