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Ocwen Loan Servicing, LLC v. Borgert

United States District Court, D. Nevada

June 21, 2017

OCWEN LOAN SERVICING, LLC, Plaintiff(s),
v.
ANTHONY BORGERT, Defendant(s).

          ORDER

         Presently before the court is defendant Anthony Borgert's (“Borgert”) motion to dismiss. (ECF No. 10). Plaintiff Ocwen Loan Servicing, LLC (“Ocwen”) filed a response (ECF No. 12), to which Borgert replied (ECF No. 15). Ocwen filed a surreply (ECF No. 25) with the court's leave (ECF No. 24).

         I. Facts

         This case involves a dispute over real property located at 5646 Low Stakes Court, Las Vegas, Nevada 89122 (the “property”). Adanech M. Michu (“Michu”) obtained a loan in the amount of $252, 436.00 to purchase the property, which was secured by a deed of trust recorded on December 26, 2006. (ECF No. 1).

         In April 2007, Federal National Mortgage Association (“Fannie Mae”) purchased the loan. (ECF No. 1 at 3). The deed of trust was assigned to IndyMac Federal Bank FSB via an assignment of deed of trust recorded July 30, 2009. (ECF No. 1 at 3).

         On August 25, 2009, Alessi & Koenig, LLC (“A&K”), acting on behalf of Nevada Ranch Master Homeowners Association (the “HOA”), recorded a notice of delinquent assessment lien, stating an amount due of $498.75. (ECF No. 1 at 4). On November 16, 2009, A&K recorded a notice of default and election to sell to satisfy the delinquent assessment lien, stating an amount due of $1, 471.25. (ECF No. 1 at 4). On November 5, 2010, A&K recorded a second notice of default and election to sell to satisfy the delinquent assessment lien, stating an amount due of $2, 878.91. (ECF No. 1 at 4).

         On March 20, 2012, A&K recorded a notice of trustee's sale, stating an amount due of $4, 096.41. (ECF No. 1 at 4). On August 14, 2012, A&K recorded a second notice of trustee's sale, stating an amount due of $5, 340.00. (ECF No. 1 at 4-5).

         On December 12, 2012, MYE Construction, LLC (“MYE”) purchased the property at the foreclosure sale for $6, 300.00. (ECF No. 1 at 5). A trustee's deed upon sale in favor of MYE was recorded on January 8, 2013. (ECF No. 1 at 5). A corrective trustee's deed upon sale was recorded on April 25, 2013, to correct the foreclosing beneficiary's name. (ECF No. 1 at 5). Thereafter, MYE quitclaimed its interest in the property to Borgert via a quitclaim deed recorded June 5, 2013. (ECF No. 1 at 5).

         After the deed of trust had been extinguished by the foreclosure sale, the deed of trust was assigned to OneWest Bank, FSB (“OneWest”) via a corporate assignment of deed of trust recorded February 21, 2013. (ECF No. 1 at 3). Thereafter, the deed of trust was assigned to Ocwen via a corporate assignment of deed of trust recorded July 6, 2016. (ECF No. 1 at 3).

         On September 1, 2016, Ocwen filed the underlying complaint, alleging three claims for relief: (1) quiet title; (2) preliminary and permanent injunction; and (3) unjust enrichment. (ECF No. 1).

         In the instant motion, Borgert moves to dismiss the claims pursuant to Federal Rule of Civil Procedure 12(b)(6) based on res judicata and forum non conveniens. (ECF No. 10).

         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 “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation omitted).

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the ...


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