United States District Court, D. Nevada
before the court is defendant Spring Mountain Ranch Master
Association's (“the HOA”) motion to dismiss.
(ECF No. 11). Plaintiff the Bank of New York Mellon
(“BNYM”) filed a response (ECF No. 16), to which
the HOA replied (ECF No. 17).
before the court is defendant/counter claimant 8933 Square
Knot Trust's (“Square Knot”) motion for
summary judgment. (ECF No. 27). BNYM filed a response (ECF
No. 33), to which Square Knot replied (ECF No. 42).
before the court is BNYM's motion for summary judgment.
(ECF No. 29). The HOA (ECF No. 32) and Square Knot (ECF No.
36) filed responses, to which BNYM replied (ECF No. 41).
before the court is the HOA's motion for summary
judgment. (ECF No. 30). BNYM filed a response (ECF No. 38),
to which the HOA replied. (ECF No. 40).
before the court is a stipulation for extension of time to
respond to BNYM's motion for summary judgment. (ECF No.
34). . . . . . .
case involves a dispute over real property located at 8933
Square Knot Avenue, Las Vegas, NV 89143 (the
14, 2005, Susan K. Orcutt (the “borrower”)
purchased the property. (ECF No. 1). The borrower obtained a
loan to finance the purchase from Countrywide Home Loans,
Inc. in the amount of $221, 200.00. Id. The loan was
evidenced by a note and secured by a deed of trust recorded
on July 25, 2005. Id.
February 1, 2012, the deed of trust was assigned to BNYM via
an assignment of deed of trust. (ECF No. 27).
September 16, 2010, Nevada Association Services, Inc.
(“NAS”), acting on behalf of the HOA, recorded a
notice of delinquent assessment lien on the property, stating
an amount owed of $1, 170.29. (ECF No. 1). On November 4,
2010, NAS, acting on behalf of the HOA, recorded a notice of
default and election to sell to satisfy delinquent
association lien, stating an amount owed of $2, 168.58.
January 28, 2011, BAC Home Loans Servicing, LP f/k/a
Countrywide Home Loans, Inc. (“BAC”), through its
counsel Miles Bauer, tendered $535.50. (ECF No. 29). NAS
refused to accept the tender. Id.
September 30, 2011, NAS, on behalf of the HOA, recorded a
notice of foreclosure sale, stating an amount owed of $3,
845.74. (ECF No. 1). On March 9, 2012, NAS, on behalf of the
HOA, sold the property at a foreclosure sale. Id.
Square Knot purchased the property for $6, 166.26.
Id. On April 13, 2012, a foreclosure deed upon sale
was recorded. Id.
August 14, 2017, BNYM filed the underlying complaint (ECF No.
1). In the complaint, BNYM alleges four claims for relief:
(1) quiet title and declaratory judgment against all
defendants; (2) breach of NRS 116.1113 against the HOA and
NAS; (3) wrongful foreclosure against the HOA and NAS; and
(4) injunctive relief against Square Knot. Id.
October 30, 2017, Square Knot filed a counterclaim for quiet
title/declaratory relief and preliminary and permanent
injunction against BNYM. (ECF No. 14).
instant motion, the HOA moves to dismiss BNYM's complaint
as time barred. (ECF No. 11).
Motion to Dismiss
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. at 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 ...