United States District Court, D. Nevada
US BANK NATIONAL ASSOCIATION, as Trustee for Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset Back Certificates Series 2005-A8, Plaintiff,
BDJ INVESTMENTS, LLC, et al., Defendants.
M. Navarro, Chief Judge United States District Judge
before the Court are the Motions to Dismiss, (ECF Nos. 82,
85), filed by Defendant Lone Mountain Quartette Community
Association (“HOA”) and BDJ Investments, LLC
(“BDJ”) (collectively “Defendants”).
Plaintiff U.S. Bank National Association
(“Plaintiff”) filed Responses, (ECF Nos. 83, 86),
and Defendants filed Replies, (ECF Nos. 84, 91), in support
of their respective Motions.
reasons discussed herein, Defendants' Motions to Dismiss
case arises from the non-judicial foreclosure on real
property located at 10625 Colter Bay Court, Las Vegas, Nevada
89129 (the “Property”). (See Am. Compl.
¶ 7, ECF No. 81). In July 2005, Isam Halteh
(“Borrower”) purchased the Property by way of a
loan in the amount of $255, 400.00 secured by a deed of
trust, identifying Mortgage Electronic Registration Systems
(“MERS”) as beneficiary. (Id.
¶¶ 7-8). Plaintiff later obtained an interest in
the Property and is the current holder of the deed of trust.
(Id. ¶ 9).
2011, upon Borrower's failure to pay all amounts due, HOA
initiated foreclosure proceedings, recording a notice of
delinquent assessment lien, followed by a notice of default
and election to sell. (Id. ¶¶ 11, 12). HOA
recorded a notice of trustee's sale and conducted a
public auction on April 17, 2012. (Id. ¶ 14).
BDJ purchased the Property for $6, 000 on April 18, 2012.
filed its initial complaint on April 15, 2016, asserting
causes of action for declaratory relief, quiet title, and
breach of NRS 112.190. (Compl. ¶¶ 30-72, ECF No.
1). The Court subsequently granted HOA's motion to
dismiss, dismissing the declaratory relief and quiet title
claims without prejudice, and dismissing the NRS 112.190 with
prejudice. (See Order 12:14-19, ECF No. 80).
filed its Amended Complaint on October 15, 2018, bringing the
following causes of action arising from the foreclosure and
subsequent sale of the Property: (1) quiet title through the
remedy of declaratory relief; (2) injunctive relief; and (3)
unjust enrichment. (See Am. Compl. ¶¶
51-82). Shortly thereafter, HOA and BDJ filed the instant
Motions to Dismiss, (ECF Nos. 82, 85).
is appropriate under Rule 12(b)(6) where a pleader fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). A pleading must give fair notice of a legally
cognizable claim and the grounds on which it rests, and
although a court must take all factual allegations as true,
legal conclusions couched as a factual allegations are
insufficient. Twombly, 550 U.S. at 555. Accordingly,
Rule 12(b)(6) requires “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. This standard “asks for more than a sheer
possibility that a defendant has acted unlawfully.”
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion.” Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896
F.2d 1542, 1555 n.19 (9th Cir. 1990). “However,
material which is properly submitted as part of the complaint
may be considered.” Id. Similarly,
“documents whose contents are alleged in a complaint
and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered in
ruling on a Rule 12(b)(6) motion to dismiss” without
converting the motion to dismiss into a motion for summary
judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th
Cir. 1994). On a motion to dismiss, a court may also take
judicial notice of “matters of public record.”
Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282
(9th Cir. 1986). Otherwise, if a court considers materials
outside of the pleadings, the motion to dismiss is converted
into a motion for summary judgment. Fed.R.Civ.P. 12(d).
court grants a motion to dismiss for failure to state a
claim, leave to amend should be granted unless it is clear
that the deficiencies of the complaint cannot be cured by
amendment. DeSoto v. Yellow Freight Sys., Inc., 957
F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the
court should “freely” give leave to amend
“when justice so requires, ” and in the absence
of a reason such as “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.” Foman
v. Davis, 371 U.S. 178, 182 (1962).
moves to dismiss Plaintiff's Amended Complaint on the
following grounds: (1) Plaintiff's quiet title claim is
premised upon the same the equitable and constitutional
arguments the Court has already rejected; (2) the injunctive
relief claim is improperly pled as a stand-alone claim for
relief; and (3) the unjust enrichment claim is barred by the
statute of limitations and is otherwise not a cognizable
cause of action. (HOA's MTD 5:1-15:13, ECF No. 82). BDJ
also seeks dismissal by raising a statute-of-limitations