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The Bank of New York Mellon v. Ferraro

United States District Court, D. Nevada

March 13, 2018

THE BANK OF NEW YORK MELLON, Plaintiff(s),
v.
JOHN FERRARO, et al., Defendant(s).

          ORDER

         Presently before the court is defendant Red Rock Financial Services, LLC's (the “HOA agent”) motion to dismiss. (ECF No. 8). Plaintiff Bank of New York Mellon (“BNYM”) filed a response (ECF No. 15), to which the HOA agent replied (ECF No. 19).

         Also before the court is defendant Northshores Owners Association's (the “HOA”) motion to dismiss. (ECF No. 10). BNYM filed a response (ECF No. 16), to which the HOA replied (ECF No. 20).

         Also before the court is defendant Saticoy Bay LLC Series 3333 Hillingdon's (“Saticoy”) motion to dismiss. (ECF No. 13). BNYM filed a response (ECF No. 26), to which Saticoy replied (ECF No. 27).

         I. Facts

         This case involves a dispute over real property located at 3333 Hillingdon Court, Las Vegas, Nevada 89129 (the “property”). (ECF No. 1). On November 1, 2004, John P. Ferraro and Marchella M. Ferraro (the “borrowers”) took out a $180, 000.00 loan from First Magnus Financial Corporation to purchase the property. Id. On November 15, 2004, a deed of trust was recorded as an encumbrance against the property. Id. On March 12, 2013, a corporate assignment of deed of trust was recorded assigning the deed of trust to BNYM. Id.

         On July 20, 2012, the HOA, through the HOA agent, recorded a notice of delinquent assessment lien. (ECF No. 1). The amount due was $3, 516.37. Id.

         On September 17, 2012, the HOA, through the HOA agent, recorded a notice of default and election to sell to satisfy the delinquent assessment lien. Id. The amount due was $3, 186.57. Id.

         On October 9, 2015, the HOA, through the HOA agent, recorded a notice of trustee's sale against the property. (ECF No. 1). The amount due was $7, 459.18. Id.

         On December 15, 2015, Saticoy acquired the property at the foreclosure sale as evidenced by the foreclosure deed recorded on February 29, 2016. (ECF No. 1). The sale price at the foreclosure sale was $6, 465.00. Id.

         On July 13, 2017, BNYM filed the underlying complaint, alleging six causes of action: (1) quiet title/declaratory judgment against all defendants; (2) breach of NRS 116.1113 against the HOA and the HOA agent; (3) wrongful foreclosure against the HOA and the HOA agent; (4) injunctive relief against Saticoy; (5) judicial foreclosure; and (6) breach of contract against the borrower. (ECF No. 1).

         In the instant motions, the HOA agent, the HOA, and Saticoy move to dismiss the complaint. (ECF Nos. 8, 10, 13).

         II. Legal Standard

         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 “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

         “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 (citation omitted).

         In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

         Second, the 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 not shown-that the pleader is entitled to relief.” Id. (internal quotation marks omitted). When the allegations in a complaint have not crossed the line from conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

         The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The ...


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