United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT COURT
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).
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.
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
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.
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).
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,
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.
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.”
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).
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).