United States District Court, D. Nevada
THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS SUCCESSOR IN INTEREST TO JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR STRUCTURED ASSET MORTGAGE INVESTMENTS II TRUST 2006-AR6, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-AR6, Plaintiff,
TRAMONTO VILLAGGIO HOMEOWNERS ASSOCIATION; DAISY TRUST; and ALESSI & KOENIG, LLC, Defendants.
J. DAWSON UNITED STATES DISTRICT JUDGE
before the Court for consideration is Defendant Daisy
Trust's (“Daisy”) Motion to Dismiss (#14).
Plaintiff The Bank f New York Mellon f/k/a The Bank of New
York Mellon as Successor in Interest to JP Morgan Chase Bank,
N.A. as Trustee for Structured Asset Mortgage Investments II
Trust 2006-AR6, Mortgage Pass-Through Certificates, Series
2006-AR6 (“BoNY”) filed a response in opposition
(#16) to which Daisy replied (#17).
present action involves a dispute over real property located
at 9576 Trattoria Street, Las Vegas, Nevada 89178 (“the
Property”). Vahag Stepanyan (“Stepanyan”)
purchased the Property on or about October 26, 2005.
Stepanyan financed the purchase with a $4629, 250.00 loan,
secured by a deed of trust dated June 21, 2006. The deed of
trust was assigned to BoNY on March 8, 2010 via an assignment
of deed of trust recorded with the Clark County Recorder.
November 16, 2010 Tramonto Villaggio Homeowners Association
(“Tramonto”), through its agent Alessi &
Koenig, LLC (“Alessi”), recorded a notice of
delinquent assessment lien for $664.22. On February 16, 2011,
Tramonto, through its agent Alessi, recorded a notice of
default and election to sell for the amount of $1, 871.76 as
of January 11, 2011.
about January 18, 2011 BAC Home Loans Servicing, LP
(“BAC”), predecessor-in-interest to BoNY,
requested a ledger from Tramonto, through it agent Alessi,
identifying the super-priority amount owed to Tramonto.
Tramonto provided a ledger identifying the total amount
allegedly owed, dated January 10, 2011. BAC calculated an
amount of nine months assessment and tendered $432.00 to
Tramonto, via Alessi, on February 11, 2011.
August 11, 2011, Alessi recorded a notice of trustee's
sale against the property on behalf of Tramonto. The notice
stated the amount due was $3, 370.03 including reasonably
estimated costs, expenses, and advances. Tramonto, via
Alessi, recorded a second notice of trustee's sale on
August 21, 2012. The notice states the amount due was $3,
645.03, including reasonably estimated costs, expenses, and
advances. On September 25, 2012 a foreclosure deed in favor
of Daisywas recorded reflecting that Tramonto had
sold the property for $9, 000.
filed its complaint against Tramonto, Alessi, and Daisy on
August 10, 2016. In the complaint BoNY asserted claims of (1)
quiet title, (2) breach of NRS 116.1113, (3) wrongful
foreclosure, and (4) injunctive relief.
Motion to Dismiss
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); 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) (citations omitted). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. Thus, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter to
‘state a claim for relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (citation
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, a district court must accept as
true all well-pled factual allegations in the complaint;
however, legal conclusions or mere recitals of the elements
of a cause of action, supported only by conclusory
statements, are not entitled to the assumption of truth.
Id. at 678. Second, a district 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 it has not show[n]-that the pleader is
entitled to relief.” Id. at 679 (internal
quotation marks omitted). Thus, when the claims in a
complaint have not crossed the line from conceivable to
plausible, the complaint must be dismissed. Twombly,
550 U.S. at 570. Moreover, “[a]ll allegations of
material fact in the complaint are taken as true and
construed in the light most favorable to the non-moving
party.” In re StacElecs. Sec. Litig., 89 F.3d
1399, 1403 (9th Circ. 1996) (citation omitted).