United States District Court, D. Nevada
C. MAHAN, UNITED STATES DISTRICT JUDGE
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).
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).
case involves a dispute over real property located at 23
Desert Palm Drive, Las Vegas, Nevada 89183 (the
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.
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).
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).
31, 2016, defendant Duke Partners II LLC purchased the
property for $192, 000.01. (ECF No. 11 at 3).
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).
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).
instant motion, defendants move to dismiss the amended
complaint. (ECF No. 11).
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).
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).
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.
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 ...