United States District Court, D. Nevada
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).
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).
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).
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).
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).
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).
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).
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).
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.
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 plausible on its face.” Iqbal, 556
U.S. at 678 (citation omitted).
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 ...