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Lily Touchstone, LLC v. National Default Servicing Corp.

United States District Court, D. Nevada

April 12, 2017

LILY TOUCHSTONE, LLC, Plaintiffs,
v.
NATIONAL DEFAULT SERVICING CORPORATION, et al., Defendants.

          ORDER

         Presently 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).

         I. Facts

         This 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.

         Thereafter 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.

         On 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.

         Wells Fargo substituted defendant Nevada Default Services Corporation (“NDSC”) as trustee via substitute of trustee in deed of trust recorded April 11, 2016.

         On May 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.

         On 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.

         The 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. 1-1).

         On 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).

         In the instant motion, defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 4).

         II. Legal Standard

         A court 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).

         “Factual 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 ‚Äústate a claim to relief that is ...


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