United States District Court, D. Nevada
J. Dawson United States District Judge
before the Court is Defendant Nationstar Mortgage, LLC's
("Nationstar") Partial Motion to Dismiss Complaint
(#3). Plaintiff filed a Response in Opposition (#13) to which
Defendant replied (#24).
August 25, 2005, Plaintiff Ernest Fresquez, Jr. obtained a
mortgage loan from Countrywide Home Loans, Inc. in the amount
of $523, 800.00. Beginning on or about June 30, 2008,
Plaintiff alleges that Defendants, and other beneficiaries
and services, filed a series of notices of default, elections
to sell, and notices of trustee's sales. This pattern
continued over the next eight years. During this time, on
March 27, 2012, the deed of trust was assigned by Defendant
Mortgage Electronic Registration Systems, Inc.
("MERS") to Defendant U.S. Bank, N.A. ("U.S.
Bank.") Currently, Defendant U.S. Bank is the
beneficiary of Plaintiff s mortgage loan which Defendant
Nationstar Mortgage services.
alleges that the instrument assigning the deed of trust to
U.S. Bank, as well as other instruments in the various
foreclosure processes, were fraudulently signed. Plaintiff
claims that Defendants Nationstar and U.S. Bank also violated
Nevada Law by engaging in dual tracking of Plaintiffs
property and failing to provide Plaintiff with a single point
Nationstar filed the present motion to dismiss Plaintiffs
Fourth Cause of Action for violation of the Nevada Deceptive
Trade Practices Act ("NDTPA"), and Plaintiffs Fifth
Cause of Action for cancellation of written instruments.
Nationstar argues that Plaintiffs Fourth and Fifth Causes of
Action are not plead with particularity. Nationstar also
argue that the NDTPA does not apply to real estate
may dismiss a plaintiffs 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." F.R.C.P. 8(a)(2);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(20, 07). 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) (citations omitted). "Factual
allegations must be enough to raise a right to relief 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
for 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, a district court must accept as
true all well-pled factual allegations in the complaint;
however, legal conclusions or mere recitals of the elements
of a cause of action, supported only by conclusory
statements, are not entitled to the assumption of truth.
Id. at 678. Second, a district 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 plaintiffs complaint alleges
facts that allow the court to draw a reasonable inference
that the defendant is liable for the alleged misconduct.
Id. at 678. Further, where the complaint does not
permit the court to infer more than the mere possibility of
misconduct, the complaint has "alleged-but it has not
show[n]-that the pleader is entitled to relief."
Id. at 679 (internal quotation marks omitted). Thus,
when the claims in a complaint have not crossed the line from
conceivable to plausible, the complaint must be dismissed.
Twombly, 550 U.S. at 570. Moreover, "[a]ll
allegations of material fact in the complaint are taken as
true and construed in the light most favorable to the
non-moving party." In re Stac Elecs. Sec.
Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (citation
has a stricter pleading standard under Rule 9, which requires
a party to "state with particularity the circumstances
constituting fraud." Fed.R.Civ.P. 9(b); Nev. R. Civ. P.
9(b). Pleading fraud with particularity requires "an
account of the time, place, and specific content of the false
representations, as well as the identities of the parties to
the misrepresentations." Swartz v. KPMG LLP,
476 F.3d 756, 764 (9th Cir. 2007); see also Morris v.
Bank of Nev., 886 P.2d 454, 456, n.l (Nev. 1994). Fraud
claims against corporate or business entities require
allegations that specifically identify names of individuals
who made the misrepresentation, that they had authority to
speak for the corporation, and what was said or written and
when. Smith v. Accredited Home Lenders, 2016 WL
1045507, at *2 (D. Nev. 2016).
Fourth Cause of Action, Plaintiff alleges violations of the
NDTPA and NRS § 205.090 (forged written instruments).
Plaintiff seeks cancellation of written instruments as his
Fifth Cause of Action. He claims that the instruments that
assigned the Deed of Trust to U.S. Bank and initiated the
other foreclosure processes were fraudulently
"robo-signed" and thereby "void ab
initio." Defendant Nationstar argues that the
"robo-signing" allegations are conclusory and
factually unsupported. Also, that Plaintiffs Fourth Cause of
Action is improper because it alleges a breach of NRS
§598 which only applies to transactions involving goods
or services and not transactions involving real property.
Alexander v. Aurora Loan Servs., 2010 WL 2773796 at
*2 (D. Nev. July 8, 2010). Defendant moves this Court to
dismiss Plaintiffs Fourth and Fifth cause of action, as well
as Plaintiffs prayer for punitive damages.
stipulates that his Fourth Cause of Action does not state a
claim, as the NDTPA only applies to transactions involving
goods and services. He also agrees to remove his prayer for
punitive damages from the complaint. However, Plaintiff
argues that his Fifth Cause of Action is sufficiently plead.
Plaintiff cites Reina v. Erassarret, 90 Cal.App.2d
418, 423-24 (Cal. 1949) as support for his argument that all
he needs to plead for cancellation of written instruments is
an interest in a parcel of real property and privity to the
written instrument. However, not only is Reina not
binding authority upon this Court, it does not address
federal-pleading standards. See Id. Both Plaintiffs
Fourth and Fifth Causes of Action are subject to the same
pleading standard set forth in Rules 8 and 9. Plaintiff must
state a claim that is plausible on its face. Iqbal,
556 U.S. at 678. Additionally, because Plaintiff is alleging
fraud, his complaint is subject to the heightened pleading
standard in Rule 9. It must include the time, place, and
specific content of the misrepresentation as well as the
names of the individuals who are responsible.
Swartz, 476 F.3d at 764.
Complaint, Plaintiff alleges that the instruments that
assigned the Deed of Trust to U.S. Bank, and initiated the
other foreclosure processes, were fraudulently
"robo-signed" and thereby "void ab
initio." However, Plaintiff does not allege any further
factual information about the signing of these documents that
would raise his claims past mere speculation. Iqbal,
556 U.S. at 679. Plaintiffs complaint does not allow this
Court to infer more than the mere possibility of misconduct.
Id. Furthermore, Plaintiffs allegations of fraud
fail to give any further details that would satisfy the
heightened standard expressed in ...