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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 Red Rock Financial Services, LLC's (“Red Rock”) motion to dismiss. (ECF No. 15). Plaintiff Bank of America, N.A. (“BANA”) filed a response. (ECF No. 31). Red Rock has not replied, and the period to do so has since passed.

         Also before the court is defendant View of Black Mountain Homeowners Association's (the “HOA”) motion to dismiss. (ECF No. 17). BANA filed a response (ECF No. 32), to which the HOA replied (ECF No. 38).

         I. Facts

         This case involves a dispute over real property located at 689 Principle Point Avenue, Henderson, Nevada 89102 (the “property”). On June 15, 2007, Carolyn Delon obtained a loan from Countrywide Bank, FSB in the amount of $246, 976.00 to purchase the property, which was secured by a deed of trust. (ECF No. 7).

         On August 4, 2011, Red Rock, acting on behalf of the HOA, recorded a notice of delinquent assessment lien, stating an amount due of $3, 018.84. (ECF No. 7). On September 29, 2011, Red Rock recorded a notice of default and election to sell to satisfy the delinquent assessment lien, stating an amount due of $4, 101.44. (ECF No. 7).

         On November 10, 2011, an assignment of deed of trust was recorded wherein all beneficial interest in the deed of trust and note was assigned to BANA. (ECF No. 7). On November 16, 2011, BANA's prior counsel requested from Red Rock a payoff demand and account ledger. (ECF No. 7). On January 31, 2012, Red Rock responded stating a payoff amount due of $4, 725.60. (ECF No. 7). BANA's prior counsel calculated the superpriority portion of the lien to be $810.00 and tendered that amount to Red Rock on February 9, 2012, which Red Rock allegedly rejected. (ECF No. 7).

         On October 3, 2014, Red Rock recorded a notice of trustee's sale, stating an amount due of $4, 443.81. (ECF No. 1 at 4-5). On November 7, 2014, defendant Cascade Research Partners, LLC (“Cascade”) purchased the property at the foreclosure sale for $87, 100.00. (ECF No. 7). A trustee's deed upon sale in favor of Cascade was recorded on November 17, 2014. (ECF No. 7).

         On July 7, 2016, BANA filed a complaint (ECF No. 1), which it later amended on August 2, 2016 (ECF No. 7). In the amended complaint, BANA alleges nine causes of action: (1) quiet title/declaratory judgment against Cascade; (2) preliminary and permanent injunction against Cascade; (3) unjust enrichment against Cascade; (4) wrongful foreclosure against the HOA and Red Rock; (5) negligence against the HOA and Red Rock; (6) negligence per se against the HOA and Red Rock; (7) breach of contract against the HOA; (8) misrepresentation against the HOA; and (9) tortious interference with contract against all defendants. (ECF No. 7).

         In the instant motions, Red Rock and the HOA both move to dismiss BANA's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). The court will address each in turn.

         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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