United States District Court, D. Nevada
before the court is pro se plaintiffs Wanye
Seare's and Marinette Tedoco's motion for leave to
file second amended complaint. (ECF No. 37). Defendants Bank
of New York Mellon (“BNYM”), Mortgage Electronic
Registration Systems, Inc. (“MERS”), and Seaside
Trustee Inc. (“Seaside” and collectively, with
BNYM and MERS, as “defendants”) filed a response.
(ECF No. 39). Plaintiffs have not replied, and the period to
do so has since passed.
before the court is plaintiffs' motion for
reconsideration. (ECF No. 38). Defendants filed a response.
(ECF No. 40). Defendant Duke Partners II, LLC also filed a
response. (ECF No. 41). Plaintiffs have not replied, and the
period to do so has since passed.
case involves a dispute over real property located at 23
Desert Palm Drive, Las Vegas, Nevada 89183 (the
April 27, 2007, Sherry Morales obtained a loan for $322,
896.00 to purchase the property, which was secured by a deed
of trust under which MERS was beneficiary. On March 2, 2012,
MERS assigned the deed of trust to BNYM via an assignment of
deed of trust recorded on March 6, 2012.
28, 2014, Morales purported to convey title to the property
to plaintiffs via a quitclaim deed, breaching the terms of
her loan agreement. (ECF No. 11 at 3).
28, 2015, Seaside, acting on behalf of BNYM, recorded a
notice of breach and default and election to sell. On March
28, 2016, the foreclosure mediation program issued a
certificate indicating that a mediation conference was held
on January 22, 2016, and no resolution resulted. (ECF No. 11
at 3). The certificate stated that the beneficiary may
proceed with the foreclosure process. (ECF No. 11, exh. F).
31, 2016, defendant Duke Partners II LLC purchased the
property for $192, 000.01. (ECF No. 11 at 3).
April 21, 2016, plaintiffs filed the original complaint (ECF
No. 2), which they later amended on July 7, 2016 (ECF No. 9).
In their amended complaint, plaintiffs allege twenty-two (22)
causes of action. (ECF No. 9). In sum, claims (1) through
(15) seek declaratory relief, claim (16) seeks a cancellation
of the instruments, claim (17) alleges fraud and deceit,
claims (18) and (19) allege violations of New York General
Business Law § 349 and Nevada Business and Professional
Code, claims (20) and (21) allege violations of 15 U.S.C.
§§ 1692e and 1641(g), and claim (22) alleges a
statutorily defective foreclosure. (ECF No. 9).
seek a declaration, inter alia, that the assignment
of deed of trust recorded on March 6, 2012, wherein MERS
assigned the deed of trust to BNYM, is void. (ECF No. 9 at
13). Plaintiffs argue that the assignment conflicts with the
original promissory note and thus should be voided. (ECF No.
9 at 12-13).
February 24, 2017, the court granted defendants' motion
to dismiss (ECF No. 11) pursuant to Federal Rule of Civil
Procedure 12(b)(6) and dismissed plaintiffs' amended
complaint (ECF No. 9). (ECF No. 36).
instant motions, plaintiffs move for reconsideration of the
court's February 24th order and leave to file a second
amended complaint. (ECF Nos. 38, 37). The court will address
each as it sees fit.
initial matter, the court acknowledges that plaintiffs'
motions were filed pro se and are therefore held to
less stringent standards. Erickson v. Pardus, 551
U.S. 89, 94 (2007) (“A document filed pro se
is to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.”) (internal quotation marks and citation
omitted). However, “pro se litigants in an
ordinary civil case ...