United States District Court, D. Nevada
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND
DENYING ALL OTHER PENDING MOTIONS AS MOOT [ECF NOS. 6, 17,
P. GORDON, UNITED STATES DISTRICT JUDGE.
dispute arises from the attempted foreclosure on property at
9301 Baltinglass Street in Las Vegas, Nevada. Plaintiff
Richey Guidi sues defendants Quality Loan Service Corporation
(QLS) and McCarthy & Holthus, LLP (M&H) based on this
attempted foreclosure, bringing claims for injunctive relief
to stop the alleged wrongful foreclosure,  quiet title and
declaratory relief, slander of title, fraudulent inducement,
fraudulent concealment, intentional infliction of emotional
distress (IIED), violations of the Truth in Lending Act
(TILA) and the Real Estate Settlement Procedures Act (RESPA),
rescission, and adverse possession.
defendants move to dismiss all the claims, primarily arguing
that Guidi has not alleged facts plausibly showing legally
cognizable claims. In particular, they argue that the deed of
trust upon which the foreclosure is based is a valid
instrument and the borrower is in default, so the claims
based on the foreclosure must fail. They also argue that the
attempted foreclosure is not extreme and outrageous behavior,
and that they are not proper defendants for the TILA, RESPA,
and adverse possession claims.
complaint and his arguments in opposition to the motion to
dismiss are difficult to decipher. He appears to argue that
the deed of trust on the property is void, and thus all
attempts to foreclose on the property are illegal. Because he
believes the deed of trust is void, he argues that he has
adversely possessed the property. He also contends that the
loan terms were exploitative and thus violated TILA and
parties are familiar with the facts of the case and I will
not repeat them here except where necessary to rule on the
motion. I grant the defendants' motion. The
deed of trust is not void, and Guidi has not pleaded
sufficient facts to plausibly allege any of his claims based
on that instrument. Nor has he alleged sufficiently
outrageous and extreme conduct to sustain his IIED claim.
Finally, Guidi has not alleged the defendants are the proper
defendants under TILA, RESPA, or the adverse possession
considering a motion to dismiss, “all well-pleaded
allegations of material fact are taken as true and construed
in a light most favorable to the non-moving party.”
Wyler Summit P'ship v. Turner Broad. Sys., Inc.,
135 F.3d 658, 661 (9th Cir. 1998). However, I do not assume
the truth of legal conclusions merely because they are cast
in the form of factual allegations. See Clegg v. Cult
Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).
A plaintiff must make sufficient factual allegations to
establish a plausible entitlement to relief. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007). Such
allegations must amount to “more than labels and
conclusions, [or] a formulaic recitation of the elements of a
cause of action.” Id. at 555.
Nevada, to establish a claim for wrongful foreclosure, the
borrower must “establish that at the time the power of
sale was exercised or the foreclosure occurred, no breach of
condition or failure of performance existed on the
mortgagor's or trustor's part which would have
authorized the foreclosure or exercise of the power of
sale.” Collins v. Union Fed. Sav. & Loan
Ass'n, 662 P.2d 610, 623 (Nev. 1983). The
“material issue of fact in a wrongful foreclosure claim
is whether the trustor was in default when the power of sale
was exercised.” Id. A plaintiff's claim
will fail unless he shows that he was not in default on his
loan obligations when the foreclosure proceedings were
initiated. Larson v. Homecomings Fin., LLC, 680
F.Supp.2d 1230, 1237 (D. Nev. 2009).
defendants argue that Guidi makes no allegation that the
borrower on the underlying loan, Guidi's mother Priscilla
Bardes, is not in default. Guidi does not allege the loan is
not in default. In fact, he states he had been making
payments on the loan but stopped in October 2013. ECF No. 1
at 7. Guidi instead contends that the deed of trust securing
the loan is void and so the defendants do not have standing
to foreclose. He argues Bardes violated a “Second
Home Rider” on the deed of trust by conveying an
interest in the property to him and allowing him to possess
the property. According to Guidi, this violation voided the
deed of trust.
Bardes violated the deed, Guidi has not plausibly alleged
this breach would void the deed. Guidi has not made any other
allegations showing the defendants do not have standing to
foreclose, and has not plausibly alleged that Bardes was not
in default on her loan obligations. Therefore, I dismiss this
claim. Because Guidi acknowledges that the loan was in
default, I dismiss this claim with prejudice.
Other Claims Based on the Deed of Trust
claims for fraud in the concealment, fraud in the inducement,
slander of title, quiet title, declaratory relief, and
injunctive relief are all based on his argument that the deed
of trust is void. Guidi has not plausibly alleged facts
showing this to be the case. Nor can he bring these claims
under any factual scenario, as he is not the borrower on the
loan at issue nor listed on the deed of trust. Thus, I
dismiss these claims with prejudice.
Intentional Infliction of ...