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Giampa v. MidFirst Bank

United States District Court, D. Nevada

November 9, 2017

VICTORIA GIAMPA, Plaintiff,
v.
MIDFIRST BANK, et al., Defendants.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Pending before the Court are the following motions: Plaintiff Victoria Giampa's Emergency Ex Parte Application for Temporary Restraining Order, Preliminary Injunction, and Declaratory Relief Prohibiting Defendants from Non-Judicial Foreclosure and Trustee's Sale of Plaintiff's Residence Scheduled for September 1, 2017 (ECF No. 11);[1] Defendants Bank of America, N.A., Countrywide Servicing Corp, Bank of America Corporation, BAC Home Loans Servicing, Recontrust Company N.A., Fannie Mae, Fannie Mae as Trustee for Securitized Trust, Fannie Mae REMIC Pass-Through Certificates 2006-123 Trust's (collectively, “BANA Defendants”) Motion to Dismiss Plaintiff's Complaint (“BANA Defendants' MTD”)[2] (ECF No. 45); Plaintiff's Application for Entry of Default Against Defendant National Default Servicing (ECF No. 49); and Defendants Green Tree Servicing LLC, Ditech Financial LLC, and Mortgage Electronic Registration System's Motion to Dismiss (“MERS Defendants' MTD”) (ECF No. 62).

         For the reasons discussed below, BANA Defendants' MTD and MERS Defendants' MTD are granted. Therefore, all other pending motions are denied as moot.

         II. BACKGROUND

         Plaintiff Victoria Giampa commenced this action on April 28, 2017, against a variety of Defendants including MidFirst Bank, Fannie Mae, Fannie Mae as Trustee for Securitized Trust, Fannie Mae Remic Pass-Through Certificates 2006-123 trust, [3]Countrywide Servicing Corp, Bank of America Corporation, Bank of America NA, BAC Home Loans Servicing, Reconstruct Company NA, Green Tree Servicing LLC, Ditech Financial LLC, Mortgage Electronic Registration System, and National Default Servicing Corporation. The following facts are taken primarily from the complaint. (ECF No. 1.)

         Plaintiff took out a mortgage loan with MidFirst Bank (“MidFirst”) in November 2006 in the amount of $358, 500 to purchase real property located at 1848 Wellington Court, Henderson, Nevada (“the Property). (ECF No. 1-1 at 57.) The Loan was secured by a deed of trust (“DOT”) on the Property. Plaintiff challenges a variety of assignments of the DOT that began as far back as 2007. She also alleges that back in 2009 and 2010, Bank of America asked if she was interested in a loan modification through the federal Home Affordable Modification Program but that Defendant never followed through with its offer.

         Plaintiff brings fifteen claims: (1) Defendants' lack of standing and statutorily defective foreclosure; (2) fraud in the concealment; (3) fraud in the inducement; (4) violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”); (5) violations of the Fair Debt Collection Practices Act (“FDCPA”); (6) unconscionable contract against Defendant MidFirst; (7) breach of contract against Defendant MidFirst; (8) breach of fiduciary duty against Defendant MidFirst; (9) violations of the Nevada Deceptive Trade Practices Act (“NDTPA”) against Defendant Bank of America; (10) falsification; (11) civil conspiracy; (12) quiet title; (13) slander of title; (14) temporary restraining order and injunctive relief; and (15) declaratory relief. (ECF No. 1 at 39-72.)

         III. MOTIONS TO DISMISS

         A. Legal Standard

         Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A properly pleaded 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). The Rule 8 notice pleading standard requires Plaintiff to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id. (internal quotation marks and citation omitted). 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) (quoting Twombly, 550 U.S. at 555). “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 (internal quotation marks omitted).

         In 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-pleaded factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. 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 a 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). 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. A complaint must contain either direct or inferential allegations concerning “all the material elements necessary to sustain recovery under some viable legal theory.” Id. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989)).

         A motion to dismiss “grounded in fraud under Rule 9(b) for failure to plead with particularity is the functional equivalent of a motion to dismiss under Rule 12(b)(6) for failure to state a claim.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003) (internal quotation marks omitted). “Because a dismissal of a complaint or claim grounded in fraud for failure to comply with Rule 9(b) has the same consequence as a dismissal under Rule 12(b)(6), dismissals under the two rules are treated in the same manner.” Id.

         The Supreme Court has held that documents filed pro se must be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Id. Thus, a pro se complaint can only be dismissed for failure to state a claim if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Haines v. Kerner, 404 U.S. 520-21 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)) (internal quotation marks omitted).

         B. Discussion

         Both BANA Defendants and MERS Defendants move to dismiss the complaint on the basis that it violates Rules 8 and 9, and fails to state a claim upon which relief may be granted. (ECF No. 45 at 5-7; ECF No. 62 at 1-2.) BANA Defendants also argue that the claims in the complaint arise from events that transpired 8 to 10 years ago, making Plaintiff's claims time-barred. MidFirst joined in this argument as well as the prior contention raised by both sets of Defendants. (ECF No. 54 at 1-3.) The Court finds that the primary legal theories advanced by Plaintiff are not cognizable, and on that reason as well as the others outlined below finds that the complaint fails to state claims upon which relief may be granted.

         i. Lack of Standing to Foreclose/Statutorily Defective Foreclosure[4]

         Plaintiff brings her first claim against all Defendants, alleging that Defendants do not have standing to foreclose upon the Property as “each of them[] have failed to perfect any security interest in the [ ] Property.” (ECF No. 1 at ¶ 146.) Plaintiff also alleges that MERS cannot be a real party in interest in a securitized mortgage. (ECF No. 1 at 42.) The Court construes this as an attempt by Plaintiff to advance a theory of improper securitization or assignment in order to attack particular Defendants' standing to foreclose upon the Property and to make an attempt to argue that MERS is a “sham beneficiary” (see ECF No. 1 at ¶ 160 (referring to MERS as a “nominee beneficiary” who lacks authority to foreclose upon a DOT or to transfer an interest in the Note)).

         Neither theories have any merit. To begin, “[t]he securitization argument has been repeatedly rejected by this district because it does not alter or change the legal beneficiary's standing to enforce the deed of trust.” Beebe v. Fed. Nat. Mortg. Ass'n, No. 2:13-cv-311-JCM-GWF, 2013 WL 3109787, at *2 (D. Nev. June 18, 2013). Moreover, a homeowner lacks standing to challenge the validity of a loan assignment. Wood v. Germann, 331 P.3d 859, 861 (Nev. 2014). Finally, the Ninth Circuit has resoundingly rejected the argument “that all transfers of the interests in the home loans within the MERS system are invalid because the designation of MERS as a beneficiary is a sham and the system splits the deed from the note, [5] and, thus, no party is in a position to foreclose.” Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1044 (9th Cir. 2011). “Even if MERS were a sham beneficiary, the lenders would still be entitled to repayment of the loans and would be the proper parties to initiate foreclosure after the plaintiff[ ] defaulted on [her] loan[].” Id. Moreover, as in Cervantes, here, MERS did not initiate the foreclosure process nor does it appear to be asserting a claim to the Property.

         Plaintiff's first claim is therefore dismissed with prejudice as to all Defendants.

         ii. Fraud in the Concealment & Fraud in ...


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