United States District Court, D. Nevada
C. MAHAN, UNITED STATES DISTRICT JUDGE
before the court is defendant La Paloma Homeowners
Association's (the “HOA”) motion to dismiss.
(ECF No. 16). Plaintiff Bank of America, N.A.
(“BANA”) filed a response (ECF No. 21), to which
the HOA replied (ECF No. 22).
case involves a dispute over property that was subject to a
homeowners' association superpriority lien for delinquent
assessment fees. On February 6, 2007 Antonio Tanseco obtained
a loan from BANA in the amount of $143, 920.00 to purchase
the property located at 7701 W. Robindale Road #245, Las
Vegas, Nevada 89113 (the “property”). (ECF No.
December 30, 2011, defendant Terra West Collections Group LLC
d/b/a Assessment Management Services (“TWC”),
acting on behalf of the HOA, recorded a notice of delinquent
assessment lien. (ECF No. 1).
19, 2012, BANA's prior counsel Miles, Bauer, Bergstrom
& Winters, LLP (“MBBW”) received a payoff
demand from TWC in the amount of $3, 364.24. (ECF No. 1).
MBBW calculated the superpriority portion to be $1, 641.88
and tendered that amount to TWC on August 2, 2012, which TWC
allegedly rejected. (ECF No. 1).
April 15, 2013, TWC recorded a notice of default and election
to sell to satisfy the delinquent assessment lien. (ECF No.
1). On April 23, 2014, TWC recorded a notice of trustee's
sale. (ECF No. 1).
August 18, 2014, defendant BTK Properties LLC
(“BTK”) purchased the property at the foreclosure
sale for $9, 000.00. (ECF No. 1). A foreclosure deed in favor
of BTK was recorded on September 2, 2014. (ECF No. 1).
30, 2016, BANA filed the underlying complaint, alleging nine
causes of action: (1) quiet title/declaratory judgment
against all defendants; (2) preliminary and permanent
injunction against BTK; (3) unjust enrichment against BTK;
(4) wrongful foreclosure against the HOA and TWC; (5)
negligence against the HOA and TWC; (6) negligence per
se against the HOA and TWC; (7) breach of contract
against the HOA; (8) misrepresentation against the HOA; and
(9) tortious interference with contract against all
defendants. (ECF No. 1).
instant motion, the HOA moves to dismiss arguing that the
court lacks subject matter jurisdiction pursuant to Chapter
38 of the Nevada Revised Statutes and that BANA failed to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6). (ECF No. 16). The
court will address each as it sees fit.
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 ...