United States District Court, D. Nevada
ORDER GRANTING MOTION TO DISMISS [ECF NOS. 23,
P. GORDON UNITED STATES DISTRICT JUDGE
Tracy Gayle borrowed nearly $400, 000 to purchase a house.
ECF No. 18 at 8-9. That loan was secured by a deed of trust
against the house. The loan was later sold on the secondary
market. Gayle apparently failed to timely pay the loan
installments so the defendants (beneficiaries of the note and
deed of trust) want to enforce their remedies. Gayle is
trying to prevent that by suing the defendants alleging a
variety of claims.
defendants move to dismiss the amended complaint. ECF No.
Gayle's claims stem from her baseless allegations that
because her loan was subsequently securitized and resold, the
defendants cannot foreclose on the lien. Arguments like hers
have been soundly rejected by courts across the country and
they do not prevail in this case either. Because her claims
are either invalid as a matter of law or improperly pleaded,
I grant the motion to dismiss.
amended complaint is a slightly-modified version of a form
complaint available on the internet. Similar versions of this
complaint have been dismissed by judges across the country.
See Carranza v. U.S. Bank, N.A., No.
2:15-cv-1471-GMN-CWH, 2016 WL 1643793 at *2 (D. Nev. Apr. 25,
2016) (collecting cases). Gayle makes little more than a
perfunctory attempt to tailor the form complaint to the facts
of her case. And she improperly lumps together allegations
against all defendants, making it impossible for the
defendants to determine which allegations to respond to and
contends that because her loan was securitized and sold on
the secondary market, no one can enforce the note and deed of
trust. See ECF No. 18 at 12-14; ECF No. 29 at 17.
She is wrong. “It is thoroughly established that
‘[s]ecuritization of a loan does not in fact alter or
affect [a] legal beneficiary's standing to enforce [a]
deed of trust.'” Carranza, 2016 WL 1643793
at *3 (citation omitted). Similarly, “securitization
does not bar a party from initiating foreclosure
proceedings.” Id. (citations omitted). All of
Gayle's allegations and claims based on securitization
are dismissed with prejudice.
also attacks the validity of the assignments of rights
related to her loan because they violated a “Pooling
and Services Agreement” (PSA). ECF No. 18 at
¶¶ 20-22, 34-36. Gayle was not a party to the
alleged PSA, and therefore has no standing to challenge it or
to allege it was violated. Carranza, 2016 WL 1643793
at *3. All of her allegations and claims based on the PSA are
dismissed with prejudice.
asserts claims of fraudulent concealment and fraudulent
inducement (Second and Third Causes of Action). Under Nevada
law, a party alleging fraud must demonstrate (1) a false
representation made by the defendant, (2) the defendant knew
or believed that the representation was false, (3) the
defendant intended to induce the plaintiff to act or to
refrain from acting in reliance upon the misrepresentation,
(4) the plaintiff's justifiable reliance upon the
representation, and (5) damage to the plaintiff resulting
from that reliance. Lubbe v. Barba, 540 P.2d 115,
117 (Nev. 1975). In addition, claims of fraud must be pleaded
with greater specificity under Federal Rule of Civil
Procedure 9. A party alleging fraud must set forth the time,
place, specific content, and speaker of the false statements.
Gayle's claims of fraud do not meet this heightened
pleading standard, as they simply repeat the elements of a
fraud claim. This is improper. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (Allegations must
amount to “more than labels and conclusions, [or] a
formulaic recitation of the elements of a cause of
action.”). I dismiss the fraud claims, but will allow
Gayle to amend her complaint if facts exist to allow her to
properly allege fraud with the specificity required by Rule
claims the defendants' acts of “fraudulently
attempting to foreclose or claimng (sic) the right to
foreclose” on her property constitutes the intentional
infliction of emotional distress. ECF No. 18 at ¶¶
90-100 (Fourth Cause of Action). An IIED claimant must allege
“(1) extreme and outrageous conduct with either the
intention of, or reckless disregard for, causing emotional
distress, (2) the plaintiff's having suffered severe or
extreme emotional distress, and (3) actual or proximate
causation.” Dillard Dep't Stores, Inc. v.
Beckwith, 989 P.2d 882, 886 (Nev. 1999).
“[E]xtreme and outrageous conduct is that which is
‘outside all possible bounds of decency' and is
regarded as ‘utterly intolerable in a civilized
community.'” Maduike v. Agency Rent-A-Car,
953 P.2d 24, 26 (1998) (citation omitted). The
defendants' actions here, even if they occurred as Gayle
alleges, are not extreme and outrageous. I dismiss this
claims the defendants violated the Real Estate Settlement
Procedures Act (RESPA) “because the payments between
the Defendants were misleading and designed to create a
windfall.” ECF No. 18 at ¶¶ 128-134 (Eighth
Cause of Action). Gayle does not specify which provision of
RESPA was violated. But her allegations do not give rise to a
right to sue the defendants.
RESPA creates a private right of action for three categories
of wrongful acts: (1) payment of a kickback and unearned fees
for real estate settlement services, 12 U.S.C. § 2607;
(2) requiring a buyer to use a title insurer selected by the
seller, 12 U.S.C. § 2608; and (3) the failure by a loan
servicer to give proper notice of a transfer of servicing
rights or to respond to a qualified written request for
information about a loan, 12 U.S.C. § 2605.
Carranza, 2016 WL 1643793 at *5 (citation omitted).
Gayle's allegations do not fall under any of these
categories. Moreover, her RESPA claim would be barred by the
one-year or three-year limitation periods that apply to such
claims. Id. Thus, Gayle cannot maintain a RESPA
claim so I dismiss it with prejudice.
defendants moved to dismiss Gayle's claims of Slander of
Title, Quiet Title, and Declaratory Relief (Fifth, Sixth, and
Seventh Causes of Action). ECF No. 23 at 10-12. These claims
are based on Gayle's allegations about improper
securitization and foreclosure. I rejected those theories
above, so these claims must likewise fail. I dismiss them.
named as defendants “J.P. Morgan Chase Bank, N.A. as
Trustee of Structured Asset Mortgage Investments II Trust
2005-AR8” and “Trustee of Structured Asset
Mortgage Investments II Trust 2005-AR8.” The defendants
point out in their motion to dismiss that these are two
portions of the name of defendant Bank of New York Mellon and
thus are not properly named defendants. ECF No. 23 at 13.
Gayle did not respond to this argument and thus has consented
to granting that portion of the motion. See Local
Rule 7-2(d). I will dismiss those entities.
THEREFORE ORDERED that the motion to dismiss (ECF No.
23) is granted. Clear Recon's joinder (ECF No.
27) is likewise granted. I dismiss with prejudice plaintiff
Tracy Gayle's claims based upon securitization or the
defendants' lack of standing (the First, Fifth, Sixth,
and Seventh Causes of Action), the IIED claim (Fourth Cause
of Action), and the RESPA claim (Eighth Cause ...