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Bank of America, N.A. v. BTK Properties LLC

United States District Court, D. Nevada

February 28, 2017

BANK OF AMERICA, N.A., Plaintiff,
v.
BTK PROPERTIES LLC., et al., Defendants.

          ORDER

          JAMES C. MAHAN, UNITED STATES DISTRICT JUDGE

         Presently 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).

         I. Facts

         This 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. 1).

         On 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).

         On July 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).

         On 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).

         On 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).

         On June 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).

         In the 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.

         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 ...


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