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Clark v. New Century Mortgage Co.

United States District Court, D. Nevada

March 15, 2018

Alfred Clark, Plaintiff
New Century Mortgage Company, et al., Defendants



         Pro se plaintiff Alfred Clark sues a myriad of defendants, including lenders, trustees, and a loan servicer, for violating the Fair Debt Collection Practices Act (FDCPA) and wrongfully initiating foreclosure proceedings against him. Defendants U.S. Bank National Association, Western Progressive - Nevada, Inc., and Ocwen Loan Servicing, LLC, move to dismiss Clark's claims, arguing that Clark either lacks standing to raise them, filed them too late, or fails to sufficiently plead them.[1] Defendant Barclays Capital Real Estate, Inc. joins in the motion.[2] I find that Clark's wrongful-foreclosure claim is premature and his FDCPA claims are time barred. So, I grant the motion to dismiss and close this case.


         In 2006, Clark received a $204, 000 loan from Clarion Mortgage Capital to purchase a property in Las Vegas referred to by the parties as “the Harmony property.”[3] The note was secured by a deed of trust naming Clarion as the beneficiary and First American Title Co. as the trustee, Through a series of assignments and sales, U.S. Bank eventually became the beneficiary.[4] And in a Notice of Default recorded March 21, 2016, Clark was notified that he had been in default on his payments since June 1, 2014, and he was warned that the Harmony property may be sold if he did not cure the default within the grace period outlined in NRS 107.080.[5] Clark filed this case on April 17, 2017, claiming that an assignment was void somewhere along the chain of title, so neither U.S. Bank nor any other defendant had a right to foreclose on the deed of trust.[6]


         A. Motion-to-dismiss standard

         Federal Rule of Civil Procedure 8 requires every complaint to contain “[a] short and plain statement of the claim showing that the pleader is entitled to relief.”[7] While Rule 8 does not require detailed factual allegations, the properly pled claim must contain enough facts to “state a claim to relief that is plausible on its face.”[8] This “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”; the facts alleged must raise the claim “above the speculative level.”[9] In other words, a complaint must make direct or inferential allegations about “all the material elements necessary to sustain recovery under some viable legal theory.”[10]

         District courts employ a two-step approach when evaluating a complaint's sufficiency on a Rule 12(b)(6) motion to dismiss. First, the court must accept as true all well-pled factual allegations in the complaint, recognizing that legal conclusions are not entitled to the assumption of truth.[11] Mere recitals of a claim's elements, supported only by conclusory statements, are insufficient.[12] Second, the court must consider whether the well-pled factual allegations state a plausible claim for relief.[13] A claim is facially plausible when the complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct.[14] A complaint that does not permit the court to infer more than the mere possibility of misconduct has “alleged-but not shown-that the pleader is entitled to relief, ” and it must be dismissed.[15]

         B. Clark's wrongful-foreclosure claim is not yet ripe.

         “To succeed on a claim for common law wrongful foreclosure, one must show that (1) defendants exercised a power of sale or foreclosed on plaintiff['s] property and (2) at the time the power of sale was exercised, there was no breach of condition or failure of performance by [the plaintiff] that would have authorized foreclosure.”[16] “The material issue in a wrongful[-] foreclosure claim is whether ‘the trustor was in default when the power of sale was exercised.'”[17]The defendants argue that Clark cannot plead any set of true facts that will allow for the reasonable inference of these elements.[18] I agree.

         Clark has alleged that he received a Notice of Default, but he does not allege that U.S. Bank or any other defendant foreclosed on the Harmony property. The defendants contend that no foreclosure sale has occurred yet, [19] and Clark does not disagree.[20] So, I find that Clark has failed to plead sufficient true facts to satisfy the elements of a common-law wrongful-foreclosure claim. And because the Harmony property has not been foreclosed on, I dismiss this claim as premature and without leave to amend.

         C. Clark's FDCPA claims are time barred.

         A plaintiff has only “one year from the date on which the violation occurs” to bring “[a]n action to enforce any liability” under the FDCPA.[21] Defendants argue that the one-year period on Clark's FDCPA claims expired before he filed this lawsuit because the alleged violations upon which Clark bases his claims occurred on January 9, 2009, the date of the allegedly void assignment, and March 21, 2016, the date that the Notice of Default was recorded.[22] Clark filed this case on April 17, 2017, [23] so he missed the deadline to file by a month even under the most generous calculation.[24] Clark does not present anything to the contrary.[25] I ...

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