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Van Damme v. Jp Morgan Chase Bank, Inc. N.A.

United States District Court, D. Nevada

March 26, 2018

JP MORGAN CHASE BANK, INC. N.A. et al., Defendants.



         Pending before the Court is the Motion to Dismiss, (ECF No. 67), filed by Defendants Bank of America, N.A. (“BANA”), MERSCORP, Inc. (“MERSCORP”), and BANA Holding Corp., formerly known as LaSalle Bank Corporation (“BHC”) (collectively “BANA Defendants”). Plaintiff Armin Van Damme (“Plaintiff”) filed a Response, (ECF No. 76), and BANA Defendants filed a Reply, (ECF No. 86).

         Also before the Court is the Motion to Dismiss, (ECF No. 68), filed by Defendants Wells Fargo, Bank, N.A., (“Wells Fargo”), America's Servicing Company (“ASC”), a division of Wells Fargo, and U.S. Bank National Association, as Trustee, successor in interest to Bank of America, N.A. (“U.S. Bank”) (collectively “Wells Fargo Defendants”). Plaintiff filed a Response, (ECF No. 75), and Wells Fargo Defendants filed a Reply, (ECF No. 83). For the reasons stated herein, the respective Motions to Dismiss are GRANTED.

         I. BACKGROUND

         The present action concerns the parties' interests in real property located at 2775 Twin Palms Circle, Las Vegas, NV 89117 (the “Property”). (Am. Compl., ECF No. 60). Plaintiff first acquired the Property on December 29, 2003. (Id. ¶ 15). The Property was secured by two Deeds of Trust, which were recorded on January 6, 2004. (Id.). On or around September 2004, Plaintiff obtained a mortgage from BNC Mortgage, Inc. in the principal amount of $740, 000.00 to refinance the Property, and a Deed of Trust was recorded on October 5, 2004. (Id. ¶¶ 19-27). Plaintiff alleges, however, that he did not sign this Deed of Trust because “he was in Europe on business on that particular date.” (Id.). Nonetheless, Plaintiff admits that prior to leaving the United States, he “executed a Power of Attorney as it pertains to the refinance application.” (Id. ¶ 19). On or about October 1, 2004, Plaintiff was made party to a civil lawsuit, which concerned Plaintiffs alleged encroachment on his neighboring property line. (Id. ¶ 28). During the lawsuit, a Lis Pendens was recorded against the Property, creating a cloud on Plaintiffs title. (Id. ¶ 29). From the Complaint, it is unclear as to the resolution of this lawsuit.

         On October 10, 2007, the National Default Servicing Company (“NDSC”) filed a Notice of Default as to the Property. (Id. ¶ 39). In the notice, Plaintiff alleges that NDSC claimed to be the “original Trustee for secure obligations in favor of “MERS-NOMINEE FOR BNC MORTGAGE, INC.” (Id. ¶ 45). According to Plaintiff, however, BNC National Bank had previously assigned its interest in the Property to LaSalle Bank National Association (“LaSalle Bank”) in December 2004. (Id. ¶ 38). Plaintiff therefore alleges that the Notice of Default dated October 10, 2007, referenced the wrong beneficiary. (Id. ¶ 47). Furthermore, Plaintiff claims that this notice was defective because NDSC failed to file a substitution as trustee prior to this date. (Id. ¶ 44). On January 9, 2008, NDSC recorded a Notice of Rescission with respect to the default notice. (Id. ¶ 51). On January 10, 2008, NDSC filed another Notice of Default with the Clark County Recorder's Office, which Plaintiff alleges was defective under the same basis as the first notice. (Id. ¶ 56).

         In January 2008, Plaintiff entered into negotiations for a loan modification with Wells Fargo. (Id. ¶ 58). Plaintiff claims that he was “forced to proceed forward with the Loan Modification because of the imminent threat of foreclosure recorded by [NDSC].” (Id. ¶ 57). Plaintiff ultimately signed a loan modification agreement on March 18, 2008, and the agreement was recorded on April 25, 2008. (Id. ¶ 58). According to Plaintiff, however, Wells Fargo did not have authority to modify the loan as the servicer. (Id. ¶¶ 61, 68). Thus, Plaintiff alleges that Wells Fargo entered into this modification despite having “actual knowledge that they could not modify the original loan . . . .” (Id. ¶ 62). On July 20, 2015, NDSC filed another Notice of Default on the Deed of Trust; however, Plaintiff asserts that NDSC does “not have a lawful right to foreclose and sell the property, as they do not have the Deed of Trust, nor have they provided proper certification that they have an Assignment of the Deed of Trust.” (Id. ¶¶ 81, 82).

         On August 28, 2015, Plaintiff filed suit against the various financial institutions in the Eighth Judicial District Court of the State of Nevada, which BANA Defendants then removed to this Court. (Pet. for Removal ¶¶ 9-13, ECF No. 1). On March 29, 2017, Plaintiff filed the Third Amended Complaint, asserting claims for: (1) Quiet Title; (2) Fraud; (3) Breach of Contract; and (4) Breach of Implied Covenant of Good Faith and Fair Dealing. (See Am. Compl.). BANA Defendants and Wells Fargo Defendants now move for dismissal on each of Plaintiffs claims. (ECF Nos. 67, 68).[1]


         Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed. R Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as a factual allegation are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule 12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). “However, material which is properly submitted as part of the complaint may be considered.” Id. Similarly, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take judicial notice of “matters of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if a court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. Fed.R.Civ.P. 12(d).

         If the court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the court should “freely” give leave to amend “when justice so requires, ” and in the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

         III. ...

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