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Seare v. Bank of New York Mellon

United States District Court, D. Nevada

April 7, 2017

WAYNE SEARE and MARINETTE TEDECO, Plaintiffs,
v.
THE BANK OF NEW YORK MELLON fka THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE TRUST 2007-18CB, et al., Defendants.

          ORDER

         Presently 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.

         Also 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.

         I. Facts

         This case involves a dispute over real property located at 23 Desert Palm Drive, Las Vegas, Nevada 89183 (the “property”).

         On 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.

         On June 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).

         On July 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).

         On May 31, 2016, defendant Duke Partners II LLC purchased the property for $192, 000.01. (ECF No. 11 at 3).

         On 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).

         Plaintiffs 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).

         On 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).

         In the 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.

         II. Discussion

         As an 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 ...


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