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Carter v. Sables, LLC

United States District Court, D. Nevada

December 11, 2017

MAX T. CARTER, JR., and SUNDAE L. CARTER, Husband and Wife, as Joint Tenants, Plaintiffs,
v.
SABLES, LLC, A Nevada Limited Liability Company; H&R BLOCK MORTGAGE CORPORATION; COUNTRYWIDE HOME LOANS, INC.; CWALT, INC.; THE BANK OF NEW YORK MELLON AS TRUSTEE FOR SECURITIZED TRUST ALTERNATIVE LOAN TRUST 2006-21CB TRUST; COUNTRYWIDE HOME LOAN SERVICING, LP; BANK OF AMERICA, N.A.; and DOES 1 THROUGH 100 INCLUSIVE, et al., Defendants.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Pending before the Court are Defendants Bank of America, N.A., Countrywide Home Loans, Inc., CWALT, Inc., The Bank of New York Mellon as Trustee for Securitized Trust Alternative Loan Trust 2006-21CB Trust, Countrywide Home Loan Servicing LP, and Sable LLC's Motion to Dismiss Plaintiff's Complaint (“MTD”) (ECF No. 9)[1] and Plaintiffs' Motion for Temporary Restraining Order (“TRO Motion”) (ECF No. 3).[2]

         For the reasons discussed below, Defendants' MTD is granted and Plaintiffs' TRO Motion is denied as moot.

         II. BACKGROUND

         Plaintiffs Max and Sundae Carter commenced this action on September 26, 2017, against a variety of Defendants including Sables, LLC (“Sables”), H&R Block Mortgage Corp. (“H&R Block”), Countrywide Home Loans, Inc. and Countrywide Home Loan Servicing, LP (“Countrywide”), [3] the Bank of New York Mellon (“BNYM”), Cwalt, Inc. (“Cwalt”), and Bank of America, N.A. (“BANA”). (ECF No. 1.)

         Plaintiffs took out a mortgage loan with H&R Block in 2006 in the amount of $209, 600 to purchase real property located at 2202 Idaho Street, Carson City, Nevada (“the Property”). (See ECF No. 1 at ¶¶ 8, 32-33, 44.) The mortgage loan was secured by a deed of trust (“DOT”) on the Property. (Id. at ¶ 33.) The first notice of default was filed with the Carson City Recorder's Office on November 5, 2010, and a second notice was filed on May 15, 2015. (Id. at ¶¶ 35, 39.)

         Plaintiffs are challenging the securitization of their mortgage loan and the various assignments of the promissory note (“the Note”) and DOT. (See Id. at ¶¶ 20, 22-27.) Plaintiffs bring eleven claims for relief: (1) Defendants' lack of standing and wrongful foreclosure;[4] (2) unconscionable contract against Defendant H&R Block; (3) breach of contract against H&R Block/MERS[5]; (4) breach of fiduciary duty against H&R Block; (5) quiet title against all Defendants; (6) slander of title against all Defendants; (7) civil conspiracy against all Defendants; (8) violation of the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) against all Defendants; (9) violation of the Nevada RICO statute; (10) temporary restraining order and injunctive relief;[6] and (11) declaratory relief.[7] (ECF No. 1 at 11-24.)

         III. MOTION 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.

         B. Discussion

         Defendants argue, inter alia, that the complaint fails to comply with Federal Rules of Civil Procedure 8 and 12(b)(6) and that Plaintiffs' claims are time-barred. (ECF No. 9 at 5-13.) The Court agrees with Defendants that the complaint fails to state a plausible claim for relief under Rule 12(b)(6). Plaintiffs' complaint is based on legal theories that have been resoundingly rejected by the Nevada Supreme Court, other courts in this district, and the Ninth Circuit Court of Appeals. Specifically, the bases for Plaintiffs' claims stem from the contention that their mortgage was improperly securitized and/or assigned, and that splitting the Note and DOT invalidated any Defendant's authority to foreclose upon the Property. Therefore, the Court finds that dismissal with prejudice is warranted as to all of Plaintiffs' claims, as amendment would be futile.

         1. Lack of Standing to Foreclose/Statutorily ...


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