United States District Court, D. Nevada
before the court is defendant Desert Shores Community
Association's (the “HOA”) motion to dismiss.
(ECF No. 11). Plaintiff Bank of New York Mellon
(“BNYM”) filed a response (ECF No. 22), and
defendant filed a reply (ECF No. 28).
before the court is plaintiff's motion for default
judgment against defendant Nevada Association Services, Inc.
(“NAS”). (ECF No. 14). NAS has failed to respond
to both the complaint and the motion for default judgment.
1, 2016, plaintiff filed a complaint in relation to the
September 30, 2013, non-judicial foreclosure sale of the real
property at 8416 Haven Brook Court, Las Vegas, Nevada. (ECF
No. 1). Against the HOA and NAS, plaintiff asserts the
following causes of action: (1) quiet title/declaratory
judgment; (2) breach of Nevada Revised Statute
(“NRS”) § 116.1113's obligation of good
faith; and (3) wrongful foreclosure. (Id.). Against
Premier One Holdings, Inc. (“Premier”), plaintiff
asserts a “claim” for injunctive relief.
served on July 5, 2016. (ECF No. 7). Consequently, an answer
from NAS was due on July 26, 2016. (Id.). Plaintiff
filed a motion for default judgment on January 4, 2017. (ECF
No. 14). To date, NAS has not responded.
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.
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.
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.
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
initial matter, the court finds that plaintiff's
complaint can be considered in its entirety because the
mediation requirement of NRS 38.310 has been satisfied. Nev.
Rev. Stat. § 38.310. The parties participated in Nevada
Real Estate Division's alternate dispute resolution
program on July 7, 2016, and that mediation was unsuccessful.
(ECF No. 16 at 2); (see also ECF No. 23).
Motion to dismiss
Quiet title/declaratory relief
Nevada law, “[a]n action may be brought by any person
against another who claims an estate or interest in
real property, adverse to the person bringing the action for
the purpose of determining such adverse claim.” Nev.
Rev. Stat. § 40.010 (emphasis added). “A plea to
quiet title does not require any particular elements, but
each party must plead and prove his or her own claim to the
property in question and a plaintiff's right to relief
therefore depends on superiority of title.” Chapman
v. Deutsche Bank Nat'l Trust Co., 302 P.3d 1103,
1106 (Nev. 2013) (internal quotation marks and citations
omitted). Therefore, plaintiff must show that its claim to
the property is superior to all others to succeed on its
quiet title action. See also Breliant v. Preferred
Equities Corp., 918 P.2d 314, 318 (Nev. 1996)
(“In a quiet title action, the burden of proof rests
with the plaintiff to prove good title in himself.”).
relies heavily on the argument that BNYM cannot bring a quiet
title claim because it does not allege that it holds a title
in the contested parcel. (ECF No. 11). However, the mere
allegation of an interest in the land is sufficient to assert
this claim. See Nev. Rev. Stat. § 40.010.
Federal Rule of Civil Procedure 19(a), a party must be joined
as a “required” party in two circumstances: (1)
when “the court cannot accord complete relief among
existing parties” in that party's absence, or (2)
when the absent party “claims an interest relating to
the subject of the action” and resolving the action in
the person's absence may, as a practical matter,
“impair or impede the person's ability to protect
the interest, ” or may “leave an existing party
subject to a substantial risk of incurring double, multiple,
or otherwise inconsistent obligations because of the
interest.” Fed.R.Civ.P. 19(a)(1).
maintains that it does not have a current adverse interest in
the property as required by a plea to quiet title under NRS
40.010 and asks the court to dismiss it from this claim. (ECF
No. 11 at 6-7). The HOA states it does not claim an interest
in the property, as any interest the HOA had was extinguished
with the foreclosure of the delinquent assessment lien.
court has previously held that dismissal is appropriate when
the holder of the prior deed of trust seeks a declaration
that the deed of trust survived foreclosure sale. See,
e.g., Bayview Loan Servicing, LLC v. SFR Invs. Pool
1, LLC, No. 2:14-CV-1875-JCM-GWF, 2015 WL 2019067, at *1
(D. Nev. May 1, 2015). In contrast, this court has also held
that dismissal is inappropriate in these circumstances when
the holder of the prior deed of trust challenges the validity
of the foreclosure sale. See, e.g., Nationstar
Mortg., LLC v. ...