United States District Court, D. Nevada
before the court are defendant Bar Arbor Glen at Providence
Homeowners Association's (the “HOA”) motions
to dismiss. (ECF Nos. 9, 11). Plaintiff Bank of America, N.A.
(“BANA”) filed a response, (ECF No. 15) and
defendant filed replies (ECF Nos. 16, 17).
initial matter, plaintiff's response violates Local Rule
7-3, which imposes a twenty-four-page limit on responses to
non-summary judgment motions. Without exhibits, the instant
response filing is twenty-nine pages. See (ECF No.
15). Therefore, the same will be stricken.
August 21, 2008, the original borrowers purchased the real
property at 10420 Scotch Elm Avenue, Las Vegas, Nevada,
funding the purchase with a $196, 859.00 loan secured by a
deed of trust. (ECF No. 1). This deed of trust was first
recorded on August 27, 2008, and BANA later acquired that
deed of trust. (Id.). The HOA recorded a notice
of lien, a notice of default, and a notice of sale-in that
order. (Id.). The HOA conducted a foreclosure sale
for the property on December 28, 2012. (Id.).
November 1, 2016, plaintiff filed a complaint alleging four
causes of action: (1) quiet title/declaratory judgment based
upon Nevada Revised Statute (“NRS”) Chapter
116's alleged violation of procedural due process, the
Supremacy Clause's alleged bar against the extinguishment
of BANA's senior deed of trust, the failure to
sufficiently describe the amount owed on the HOA lien, and
co-defendant Williston Investment Group's
(“Williston”) alleged failure to qualify as a
bona fide purchaser for value; (2) breach of NRS
116.1113's obligation of good faith; (3) wrongful
foreclosure; and (4) injunctive relief. (ECF No. 1).
first motion to dismiss argues that this court lacks
jurisdiction because claims in the instant action have not
been subject to Nevada Real Estate Division
(“NRED”) mediation, as required by NRS 31.310.
(ECF No. 9). Defendant offers its second motion to dismiss in
case this court finds that it has jurisdiction over some or
all of the present claims; the second motion also addresses
the quiet title claim. (ECF No. 11).
court may dismiss a plaintiff's 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). Although rule 8 does not
require detailed factual allegations, it does require more
than labels and conclusions. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Furthermore, a
formulaic recitation of the elements of a cause of action
will not suffice. Ashcroft v. Iqbal, 556 U.S. 662,
677 (2009) (citation omitted). Rule 8 does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions. Id. at 678-79.
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Id. A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Id. When a complaint pleads facts that are
merely consistent with a defendant's liability, and shows
only a mere possibility of entitlement, the complaint does
not meet the requirements to show plausibility of entitlement
to relief. Id.
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering a
motion to dismiss. Id. First, the court must accept
as true all of the allegations contained in a complaint.
However, this requirement is inapplicable to legal
conclusions. Id. Second, only a complaint that
states a plausible claim for relief survives a motion to
dismiss. Id. at 678. Where the complaint does not
permit the court to infer more than the mere possibility of
misconduct, the complaint has “alleged - but not shown
- that the pleader is entitled to relief.” Id.
at 679. When the allegations in a complaint have not crossed
the line from conceivable to plausible, plaintiff's claim
must be dismissed. Twombly, 550 U.S. at 570.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The Starr court held:
First, to be entitled to the presumption of truth,
allegations in a complaint or counterclaim may not simply
recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair
notice and to enable the opposing party to defend itself
effectively. Second, the factual allegations that are taken
as true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
38.310 of the NRS ...