United States District Court, D. Nevada
before the court is plaintiff Bank of New York Mellon's
(“BNYM”) motion for summary judgment. (ECF No.
59). Defendant Kupperlin Law Group (“Kupperlin”)
filed a response (ECF No. 65), as did defendants Alan Lahrs
and Theresa Lahrs (“The Lahrs”) (ECF No. 69).
Thereafter, plaintiff filed a reply. (ECF No. 72).
before the court is Kupperlin's motion for summary
judgment. (ECF No. 60). Plaintiff filed a response (ECF No.
70), to which Kupperlin replied (ECF No. 71).
before the court is the Lahrs' motion to dismiss. (ECF
No. 52). Plaintiff filed a response (ECF No. 55), to which
the Lahrs replied (ECF No. 57).
present case concerns a dispute over real property located at
11966 Port Labelle Drive, Las Vegas, Nevada, 89141
(“the property”). (ECF No. 1).
August of 2005, Michael and Julie Frye purchased the
property. Id. The Fryes financed their purchase
through a loan of $1, 000, 000. Id. The note was
secured by a deed of trust, recorded on August 31, 2005.
Id. The deed of trust lists Countrywide Home Loans,
Inc. as the lender and Mortgage Electronic Registration
Systems, Inc. (“MERS”) as the beneficiary
“solely as nominee for Lender and Lender's
successors and assigns.” (ECF No. 59-1).
December 12, 2008, Red Rock Financial Services
(“RRFS”), acting on behalf of Christopher
Communities at Southern Highlands Golf Club Homeowners
Association (“the HOA”), recorded a notice of
delinquent assessment lien, stating an amount due of $2,
275.03. Id. On February 20, 2009, RRFS, acting on
behalf of the HOA, recorded a notice of default and election
to sell, stating an amount due of $3, 871.58. Id. On
May 4, 2009, RRFS sent MERS a letter detailing the Frye's
delinquency and describing the HOA's intent to foreclose
on the property. Id. When describing the priority of
the lien, RRFS stated, “[t]he Association's Lien
for Delinquent Assessments is Junior only to the Senior
Lender/Mortgage Holder.” Id. On February 3,
2011, and June 6, 2012, RRFS re-sent the same letter to MERS.
September 12, 2011, MERS assigned beneficial interest in the
deed of trust to plaintiff. Id.
some point in time before September 7, 2012, [defendant]
First 100 entered into an agreement with the HOA to purchase
the delinquency, if any, owed by the [Fryes] to the
HOA.” Id. The agreement contained several
notable provisions. The HOA retained its lien interest, but
sold its interest in receivables arising from or related to
the lien in exchange for nine months of unpaid assessments.
(ECF No. 59-2 at 5, 15); see (ECF No. 1)
(“First 100 transferred a sum of money equal to nine
months of unpaid assessments to the HOA in exchange to [sic]
the rights to collect on the alleged delinquent account and
foreclose upon the property.”). Id. The HOA
agreed to not negotiate or impair the value of the account
upon which the lien was based. (ECF No. 59-2 at 8-9). The HOA
promised that it would not send anyone to the foreclosure
sale to bid “in any amount in excess of the Opening
Bid” of $99. (ECF No. 59-2 at 9).
the purchase and sale agreement, [RRFS] was removed as the
HOA's agent and replaced with Kupperlin.”
Id. “Kupperlin was instructed not to postpone
any foreclosure sale, even if few or no bidders were
September 7, 2012, Kupperlin recorded a notice of foreclosure
sale, stating an amount due of $22, 346.67. (ECF No. 1). On
September 29, 2012, Kupperlin foreclosed against the
property. Id. Defendant First 100 was the only
bidder at the foreclosure sale. (ECF No. 59-2 at 46). First
100 purchased the property at the foreclosure sale for
$151. Id. at 3. A foreclosure deed was
recorded on October 4, 2012. Id. at 50. On February
4, 2013, First 100 transferred its interest in the property
to the Lahrs Family Trust (“the Trust”) for $509,
513.78. Id. at 54.
complaint alleges the following causes of action: (1) quiet
title/declaratory judgment against all defendants; (2) breach
of NRS 116.1113 against the HOA and Kupperlin; (3) wrongful
foreclosure against the HOA and Kupperlin; (4) injunctive
relief against the Trust; and (5) deceptive trade practices
against the HOA and Kupperlin. Id. On June 30, 2017,
Kupperlin filed a counterclaim against plaintiff's
attorney, Natalie Winslow. (ECF No. 29).
March 23, 2018, the court dismissed plaintiff's claim for
injunctive relief and Kupperlin's counterclaim. (ECF No.
Failure to state a claim
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).
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. 662, 678 (citation omitted).
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.
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.
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.
Ninth Circuit addressed post-Iqbal pleading
standards in Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). The ...