United States District Court, D. Nevada
before the court is defendant Wells Fargo Bank, N.A.'s
(“Wells Fargo”) motion to dismiss. (ECF No. 4).
Original plaintiff Toshiko Sato filed a response (ECF No.
13), to which Wells Fargo replied (ECF No. 15).
case involves a dispute over real property located at ¶
1321 Chapparal Summit Drive, North Las Vegas, NV 89117 (the
“property”). On March 29, 2006, Bjorn Losnedahl
and Lindsey Whitlock (“borrowers”) obtained a
loan from Wells Fargo in the amount of $339, 990.00 to
purchase the property, which was secured by a deed of trust
recorded on April 3, 2006.
the borrowers conveyed all interest in the property to
Losndehal via quitclaim deed recorded July 14, 2011. The deed
of trust was assigned to Wells Fargo via assignment deed
recorded November 2, 2011.
October 1, 2014, Losnedahl filed for Chapter 7 bankruptcy. On
May 12, 2015, Losnedahl's bankruptcy trustee moved to
sell the property, which Wells Fargo opposed. On July 7,
2015, the bankruptcy court entered an order granting a motion
to sell the property subject to all liens, encumbrances, and
claims. On July 14, 2015, S&N Investments, LLC
(“S&N”) acquired the property via bankruptcy
trustee's quitclaim deed recorded on July 17, 2015. On
July 18, 2015, S&N convyed the property to Sato via
grant, bargain and sale deed recorded on Spetember 21, 2015.
Fargo substituted defendant Nevada Default Services
Corporation (“NDSC”) as trustee via substitute of
trustee in deed of trust recorded April 11, 2016.
23, 2016, NDSC, as trustee, recorded a notice of notice of
breach and default and election to cause sale of real
property. On August 30, 2016, NDSC recorded a notice of sale,
stating that the property was to be sold on September 23,
2016, to satisfy Wells Fargo's lien on the sale date,
totaling $347, 384.58.
August 31, 2016, Sato's counsel allegedly wrote Wells
Fargo a letter to settle the indebtedness against the
property. Sato filed the instant action and notice of lis
pendens on the property to prevent the sale. On September 21,
2016, Sato convey the property to Lily Touchstone, LLC
(“Lily”) via quitclaim deed.
original complaint was filed in state court on September 13,
2016. (ECF No. 1-1). Wells Fargo removed the action to
federal court on November 4, 2016. (ECF No. 1). The complaint
alleges three causes of action: (1) violation of NRS 107.080;
(2) declaratory relief; and (3) unjust enrichment. (ECF No.
December 12, 2016, the parties stipulated to substitute Lily
as plaintiff in place of Sato and modify the caption to
reflect the real party in interest Lily, which the court
granted on January 17, 2017. (ECF Nos. 12, 17).
instant motion, defendants move to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF
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 ...