United States District Court, D. Nevada
C. MAHAN, UNITED STATES DISTRICT JUDGE
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.
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).
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).
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).
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).
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).
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.
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.
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 ...