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Bank of America, N.A. v. Bar Arbor Glen at Providence Homeowners Association

United States District Court, D. Nevada

April 28, 2017

BANK OF AMERICA, N.A., Plaintiffs,
v.
BAR ARBOR GLEN AT PROVIDENCE HOMEOWNERS ASSOCIATION, et al., Defendants.

          ORDER

         Presently 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).

         As an 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.

         I. Introduction

         On 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.[1] (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.).

         On 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).

         Defendant's 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.[2] (ECF No. 11).

         II. Legal Standard

         The 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.

         To 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.

         In 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.

         The 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 litigation.

Id.

         III. Discussion

         Section 38.310 of the NRS ...


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