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Neeman v. Bank of New York Mellon

United States District Court, D. Nevada

August 10, 2017

JEFFREY S. NEEMAN, Plaintiff,
v.
THE BANK OF NEW YORK MELLON, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (ECF NO. 10)

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.

         Plaintiff Jeffrey Neeman borrowed money to purchase a home in 2005. He stopped making his mortgage payments, and, when the defendants threatened to foreclose, Neeman filed this lawsuit. Neeman does not dispute that he has been living in his house for over seven years without paying his mortgage; instead, he claims that he can rescind his mortgage and acquire free and clear title because the defendants made procedural mistakes in how they handled his loan and default. The defendants move to dismiss, arguing that Neeman's various claims lack any factual or legal basis. ECF No. 10. I agree.

         Neeman does not oppose the defendants' motion as to most of his claims, such as his Truth in Lending Act and fraud claims. Thus, Neeman is deemed to have consented to the defendants' motion on these points. Neeman's opposition mostly consists of challenges based on standing and the statute of limitations, arguing that the defendants have no right to foreclose on the house. Neeman concludes that he can quiet title in his name because the defendants are barred from foreclosing. But none of Neeman's challenges to the defendants' foreclosure rights has any merit. I therefore dismiss Neeman's claims.

         I. BACKGROUND

         In 2005, Neeman purchased his home with a $535, 600 loan from GreenPoint Mortgage Funding, Inc.[1] In 2009, the Deed of Trust securing that loan was assigned to The Bank of New York Mellon.[2] In 2009, Neeman defaulted on his mortgage.[3] In 2013, the defendants filed a judicial foreclosure action in Nevada state court, but they voluntarily dismissed that action without prejudice. After that, defendants have been in the process of preparing to conduct a non-judicial foreclosure.

         Neeman filed this case in state court against the banks and servicers that were involved with his mortgage. He alleges various claims for quiet title, slander of title, declaratory relief, injunctive relief, violation of the Truth in Lending Act (“TILA”), violations of the Real Estate Settlement Procedures Act (“RESPA”), rescission, and fraud.[4] The case was removed to this court.

         II. ANALYSIS

         A. Motions to Dismiss

         A properly pleaded complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.”[5] 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.”[6] “Factual allegations must be enough to rise above the speculative level.”[7] 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.”[8]

         B. Neeman fails to allege any plausible claims.

         Preliminarily, Neeman does not oppose the defendants' motion as to several of his claims. Under our local rules, that means that he consents to dismissal of those claims.[9] Specifically, Neeman does not oppose the defendants' arguments related to his TILA claim, his RESPA claim, his fraud claim, or his rescission claim.[10]

         I thus turn to the claim for which Neeman provides an opposition: his claim that the defendants have no right to foreclose. The thrust of his argument is that if the defendants have no right to the property because of procedural defects in the chain of title or how the defendants handled Neeman's default, then he can quiet title in his own name.

         Neeman's claim for quiet title fails right out of the gate. The Supreme Court of Nevada has explained that unless plaintiffs allege “that they paid off the[ir] loan or . . . [were] not in default on that loan, they [have] no basis upon which to maintain an action for quiet title.”[11]Given that Neeman alleges neither that he paid off his loan or that he cured his default, he has no standing to quiet title.

         But I still address Neeman's arguments about the defendants' rights to foreclose because of his request for declaratory relief. On this point, Neeman argues that the defendants (1) are judicially estopped, (2) are barred by a statute of limitations, (3) are barred by the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”), and (4) have improperly securitized his loan.[12]

         1. Neeman has not sufficiently alleged that the defendants are judicially estopped.

         Neeman points out that the defendants filed a judicial foreclosure action in Nevada state court and then voluntarily dismissed it without prejudice. He concludes that by agreeing to dismiss their prior foreclosure action, the defendants have ...


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