United States District Court, D. Nevada
M. Navarro, Chief Judge
before the Court is Plaintiff Bank of America, N.A.'s
(“BANA's”) Motion for Partial Summary
Judgment, (ECF No. 50). Defendants Airmotive Investments, LLC
(“Airmotive”) and Woodcrest Homeowners
Association (“HOA”) filed Responses, (ECF Nos.
55, 60), and BANA filed Replies, (ECF Nos. 61, 63).
pending before the Court are the Motions for Summary
Judgment, (ECF Nos. 39, 49), filed by Airmotive and
BANA filed Responses, (ECF Nos. 51, 57), and Airmotive and
HOA filed Replies, (ECF Nos. 56, 62).
pending before the Court is Airmotive's Motion to Dismiss
the Complaint, (ECF No. 40), to which HOA filed a Joinder,
(ECF No. 42). BANA filed a Response, (ECF No. 52), and
Airmotive filed a Reply, (ECF No. 54).
reasons discussed below, the Court GRANTS in
part and DENIES in part BANA's
Motion for Partial Summary Judgment, (ECF No. 50);
DENIES Airmotive's Motion for Summary
Judgment, (ECF No. 39); GRANTS in part and
DENIES in part Airmotive's Motion to
Dismiss, (ECF No. 40); and GRANTS in part
and DENIES in part HOA's Motion for
Summary Judgment, (ECF No. 49).
case arises from the non-judicial foreclosure on real
property located at 6641 Chardonay Way, Las Vegas, Nevada
89108 (the “Property”). (See Deed of
Trust, Ex. 1 to Airmotive's Mot. Summ. J.
(“MSJ”), ECF No. 39-1). In 2009, Thomas Jeffress
(“Borrower”) purchased the Property by way of a
loan in the amount of $189, 869.00, secured by a deed of
trust (the “DOT”). (Id.). Countrywide
Bank served as the original lender for the DOT, and Mortgage
Electronic Registration System, Inc. (“MERS”) was
the nominal beneficiary on behalf of that bank.
(Id.). BANA received the DOT through an assignment
on November 15, 2011. (Notice of Assignment, Ex. C to
BANA's MSJ, ECF No. 50-3).
Borrower's failure to stay current on his payment
obligations, ACS, on behalf of HOA, initiated foreclosure
proceedings by recording a notice of delinquent assessment
lien and a subsequent notice of default and election to sell.
(See Notice of Delinquent Assessment Lien, Ex. 2 to
Airmotive's MSJ, ECF No. 39-2); (Notice of Default, Ex. 3
to Airmotive's MSJ, ECF No. 39-3).
September 9, 2011, the law firm Miles, Bauer, Bergstrom &
Winters LLP (“Miles Bauer”), on behalf of BANA,
sent a letter to ACS requesting a ledger identifying the
amount of HOA's superpriority lien. (See Request
for Accounting at 6-9, Ex. 1 to Miles Aff., ECF No. 50-7).
ACS responded with a letter stating, “without the
action of [BANA's] foreclosure, a 9 month Statement of
Account is not valid.” (See ACS Letter, Ex. 3
to Miles Aff., ECF No. 50-7). ACS's letter also stated
that it would provide a Statement of Account if BANA
submitted a “Trustees Deed Upon Sale showing
[BANA's] possession of the property and the date that it
ACS proceeded with foreclosure by recording a notice of
foreclosure sale and subsequently foreclosing on the
Property. (See Notice of Trustee's Sale, Ex. 4
to Airmotive's MSJ, ECF No. 39-4). On October 12, 2011,
Las Vegas Development Group, LLC recorded a foreclosure deed,
stating that it purchased the Property for $3, 801.00.
(Foreclosure Deed, Ex. 5 to Airmotive's MSJ, ECF No.
39-5). Las Vegas Development Group, LLC then conveyed
ownership of the Property to Airmotive. (Deed, Ex. 6 to
Airmotive's MSJ, ECF No. 39-6).
filed its Complaint on February 17, 2016, asserting the
following causes of action arising from the foreclosure and
sale of the Property: (1) quiet title; (2) breach of NRS
116.1113; (3) wrongful foreclosure; and (4) injunctive
relief. (See Compl. ¶¶ 27-78).
Motion to Dismiss
Rule of Civil Procedure 12(b)(6) mandates that a court
dismiss a cause of action that fails to state a claim upon
which relief can be granted. See N. Star Int'l v.
Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.
1983). When considering a motion to dismiss under Rule
12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
Court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
Court, however, is not required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences. See Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic
recitation of a cause of action with conclusory allegations
is not sufficient; a plaintiff must plead facts showing that
a violation is plausible, not just possible.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555).
may also dismiss a complaint pursuant to Federal Rule of
Civil Procedure 41(b) for failure to comply with Federal Rule
of Civil Procedure 8(a). Hearns v. San Bernardino Police
Dept., 530 F.3d 1124, 1129 (9th Cir.2008). Rule 8(a)(2)
requires that a plaintiff's complaint contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
“Prolix, confusing complaints” should be