United States District Court, D. Nevada
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).
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.
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.
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.).
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.).
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
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).
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.
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,
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).
Motion to Dismiss
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 ...