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The Bank of New York Mellon v. Southern Terrace Homeowners Association

United States District Court, D. Nevada

July 14, 2017

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWALT, INC., ALTERNATIVE LOAN TRUST 2005-65CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-65CB, Plaintiff,
v.
SOUTHERN TERRACE HOMEOWNERS ASSOCIATION; 9783 COLORED WIND TRUST; RED ROCK FINANCIAL SERVICES, LLC; ROSALINDA RAMOS; DOE INDIVIDUALS I-X, inclusive, and ROE CORPORATIONS I-X, inclusive, Defendants.

          ORDER

          Kent ed Sates District Judge.

         Presently before the Court is Defendant Red Rock Financial Services, LLC's Motion to Dismiss the Second and Fifth Causes of Action (#13). Plaintiff filed a response in opposition (#16) to which Defendant replied (#17).

         I. Background

         On or about September 22, 2005, Defendant Rosalinda Ramos (“Ramos”) obtained a $231, 100.00 loan to purchase property located at 9783 Colored Wind, Las Vegas, Nevada (“the property”). The property was secured by a deed of trust that was assigned to Bank of New York Mellon (“Plaintiff” or “BoNYM”).

         Ramos failed to pay assessed amounts due to Defendant Southern Terrace Homeowners Association (“STHOA”). On December 6, 2010, STHOA, through its agent, Defendant Red Rock Financial Services, LLC (“Red Rock”), recorded a notice of delinquent assessment lien in the amount of $1, 529.92. STHOA later recorded a notice of default and election to sell on January 18, 2011 in the amount of $1, 964.26. A notice of trustee's sale in the amount of $3, 178.11 was recorded on June 9, 2013 and indicated that the sale was scheduled for May 31, 2013.

         On or about March 4, 2011, after the notice of default, Miles Bauer Bergstrom & Winters (“Miles Bauer”) remitted payment to STHOA through Red Rock to satisfy the super-priority amount. Miles Bauer requested a ledger from STHOA identifying the super-priority amount. STHOA provided a ledger dated February 14, 2011 but refused to identify the super-priority amount. Miles Bauer allegedly calculated the super-priority amount to $630.00 and tendered that amount to STHOA.

         On May 31, 2013, STHOA foreclosed on the property and a foreclosure deed was recorded on June 3, 2013. Plaintiff filed the present complaint on April 5, 2017. Defendant Red Rock has now moved to dismiss the Second Cause of Action and the Fifth Cause of Action based on the running of the statute of limitations.

         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 elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

         Second, the court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff's complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. 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. (internal quotation marks omitted). 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.

         III. ...


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