United States District Court, D. Nevada
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,
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.
ed Sates District Judge.
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).
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”).
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.
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
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
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 elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
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.
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.