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Martin v. Bank of New York Mellon

United States District Court, D. Nevada

January 11, 2018

QUINNON MARTIN III and MICHELLE MARTIN, Plaintiff(s),
v.
BANK OF NEW YORK MELLON et al., Defendant(s).

          ORDER

         Presently before the court is defendants Bank of New York Mellon (“BNYM”) and Bank of America, N.A.'s (“BANA”) motion to dismiss. (ECF No. 12). Plaintiffs Quinnon Martin, III and Michelle Martin filed a response (ECF No. 14), to which defendants BNYM and BANA replied (ECF No. 15).

         I. Facts

         On June 7, 2006, plaintiffs refinanced the property by way of a loan from Bayrock Mortgage Corporation (“Bayrock”) for $650, 000.00 secured by a deed of trust, identifying Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for the original lender, its successors and assigns. (ECF No. 12). On December 9, 2009, MERS assigned the deed of trust to BNYM through an assignment recorded on January 20, 2010. (Id.). There were no assignments of the deed of trust prior to the December 9, 2009 assignment. (Id.).

         On August 27, 2013, BANA purported to assign the deed of trust to Nationstar. (Id.). When the August 27, 2013 assignment was recorded, BNYM was the beneficiary under the deed of trust pursuant to the December 9, 2009 assignment. (Id.).

         Plaintiffs defaulted on their obligations to make loan payments. (Id.). On October 6, 2016, BNYM recorded a notice of default and election to sell under the deed of trust (“NOD”). (Id. at Ex. A). Attached to the NOD is an affidavit of authority to exercise the power of sale that identified BNYM as the beneficiary under the deed of trust and Nationstar as servicer. (Id.).

         The parties then participated in a mediation on March 14, 2017. (ECF No. 12). On March 14, 2017, after the parties were unable to reach an agreement, the State of Nevada Foreclosure Mediation Program (“the Program”) mailed correspondence to plaintiffs containing the mediator's statement and that a certificate would issue on or about May 11, 2017. (Id.).

         The letter from the Program advised that the certification “allows [BNYM] to proceed with foreclosure.” (Id.). The letter also states that “[i]f you participated in mediation, you have the right to file a [petition for judicial review (“PJR”)] within 30 days of receiving the mediator's statement with the district court in the county where the notice of default was properly recorded.” (Id.). Plaintiff did not file a PJR within 30 days of receiving the mediator's statement. (Id.).

         On May 11, 2017, the Program issued a certificate indicating no agreement had been reached at the mediation and BNYM may proceed with foreclosure. (Id.). The certificate was recorded on May 17, 2017. On June 6, 2017, plaintiffs recorded a notice of lis pendens. (ECF No. 1, Ex. C).

         On June 8, 2017, plaintiffs filed their complaint alleging violations of NRS 107.080 and claims for quiet title and injunctive and declaratory relief against BNYM and BANA and also claims for fraud and violation of NRS 598 against BANA. (ECF No. 1, Ex. A).

         On June 16, 2017, BNYM recorded a notice of sale indicating the amount due and owing was $1, 010, 596.51 and setting the sale for July 11, 2017. (ECF No. 12, Ex. C). On June 17, 2017, BNYM posted the notice of sale on the property. (ECF No. 1, Ex. A).

         On July 10, 2017, plaintiffs filed an application for temporary restraining order enjoining the July 11, 2017 sale. The district court, Clark County, Nevada granted plaintiffs' application and the sale did not proceed. (ECF No. 12).

         II. Legal Standards

         A. Motion to Dismiss

         A court may dismiss a 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 ...


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